{"id":5842,"date":"1987-10-15T00:00:00","date_gmt":"1987-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ravindra-kumar-misra-vs-u-p-state-handloom-corporation-on-15-october-1987"},"modified":"2017-08-10T22:27:56","modified_gmt":"2017-08-10T16:57:56","slug":"ravindra-kumar-misra-vs-u-p-state-handloom-corporation-on-15-october-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ravindra-kumar-misra-vs-u-p-state-handloom-corporation-on-15-october-1987","title":{"rendered":"Ravindra Kumar Misra vs U.P. State Handloom Corporation … on 15 October, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ravindra Kumar Misra vs U.P. State Handloom Corporation … on 15 October, 1987<\/div>\n
Equivalent citations: 1987 AIR 2408, \t\t 1988 SCR (1) 501<\/div>\n
Author: M Rangnath<\/div>\n
Bench: Misra Rangnath<\/div>\n
           PETITIONER:\nRAVINDRA KUMAR MISRA\n\n\tVs.\n\nRESPONDENT:\nU.P. STATE HANDLOOM CORPORATION LTD. & ANR.\n\nDATE OF JUDGMENT15\/10\/1987\n\nBENCH:\nMISRA RANGNATH\nBENCH:\nMISRA RANGNATH\nDUTT, M.M. (J)\n\nCITATION:\n 1987 AIR 2408\t\t  1988 SCR  (1) 501\n 1987 SCC  Supl.  739\t  JT 1987 (4)\t106\n 1987 SCALE  (2)766\n CITATOR INFO :\n R\t    1992 SC 496\t (26)\n\n\nACT:\n     U.P. State\t Handloom Corporation  Rules: Rules  63 &  6\nTemporary employee-Termination of servic Whether termination\nsimpliciter or dismissal.\n\n\n\nHEADNOTE:\n     Rule 63  of the  U.P. State  Handloom Corporation Rules\nstipulates termination\tof temporary  service on one month's\nnotice\ton  either  side.  Rule\t 68  provides  that  if\t the\npunishment of  discharge or dismissal is imposed, an enquiry\ncommensurate with  requirements\t of  natural  justice  is  a\ncondition precedent.\n     The appellant was employed in the aforesaid Corporation\non temporary basis. The order of appointment stated that his\nservices were liable for termination with one month's notice\nor one\tmonth's pay in lieu of notice on either side. He was\nplaced under  suspension in  November  1982  on\t charges  of\nmisconduct, dereliction\t of duty,  mismanagement and showing\nfictitious production  entries.\t That  order,  however,\t was\nrevoked\t in   November\t1983  and  his\tservices  terminated\nforthwith by notice entitling him to one month's salary. The\nHigh Court  held that  the termination\twas not punitive and\nthe question  of breach of principles of natural justice did\nnot arise.\n     In this  appeal by\t special leave it was contended that\nthe appellant  was entitled to the protection of Articles 14\nand 16\tof  the\t Constitution,\tthat  though  his  order  of\ntermination was\t innocuous, the setting in which it has been\nmade clearly  makes it\tan order  of dismissal\tpunitive  in\ncharacter and  that as\this service  was determined  by\t the\norder attaching\t stigma the  appellant\twas  entitled  to  a\nhearing commensurate  with rules  of natural  justice and in\nthe absence  of the opportunity of being heard the order was\nliable to be quashed.\n     Dismissing the appeal,\n^\n     HELD: As  long as\tthe adverse  feature of the employee\nremains the  motive and\t does not  become transferred as the\nfoundation   of\t   the\t order\t of   termination,   it\t  is\nunexceptionable. Whether 'motive' has be-\n502\ncome the  foundation has  to be\t decided by  the Court\twith\nreference to the facts of a given case. [510-G]\n     It is  necessary  for  every  employer  to\t assess\t the\nservice of  the temporary  incumbent in order to find out as\nto whether  he should be confirmed in his appointment or his\nservices should\t be terminated.\t It may also be necessary to\nfind out  whether the  officer should be tried for some more\ntime on temporary basis. Since both in regard to a temporary\nemployee or an officiating employee in a higher post such an\nassessment  would   be\t necessary,   merely   because\t the\nappropriate authority  proceeds to  make an  assessment\t and\nleaves a record of its views the same would not be available\nto be  utilised to  make the  order of termination following\nsuch assessment punitive in character. [509G-H; 510A-B]\n     There may\tbe cases  where an enquiry is undertaken and\nprima facie  material for  serious  charges  are  found;  by\ndisclosing the\tresult\tof  such  preliminary  enquiry,\t the\nofficer concerned  is put  under suspension in contemplation\nof disciplinary\t action. After\tsuch steps  have been taken,\nthe employer\/appropriate  authority decides  not to continue\nthe departmental  proceedings but makes an order terminating\nthe service. [510C-D]\n     In the  instant case  the\tappellant  was\ta  temporary\nservant and  had no  right  to\tthe  post.  Both  under\t the\ncontract of  service as also the Service Rules governing him\nthe employer  had the  right to\t terminate his\tservices  by\ngiving him  one month's notice. The order of termination was\nin innocuous  terms. It\t did not  cast any stigma on him nor\ndid it\tvisit him with any evil consequences. The order was,\ntherefore, not open to challenge. [S11C-D]\n     The appellant is not entitled to compensation under the\nlaw. But  since he  has been  put out  of employment  at  an\nadvanced age  and it  may be  difficult for  him to  get  an\nalternate  employment,\t the  Corporation   to\tpay   him  a\nconsolidated amount of Rs.25,000. [511F]\n     Purshotam Lal  Dhingra v.\tUnion of  India,<\/a> [1958]\t SCR\n828; Champaklal Chimanlal Shah v. The Union of India,<\/a> [1964]\n5 SCR  190; Shamsher Singh & Anr. v. State of Punjab, [1975]\n1 SCR  814; Regional  Manager &\t Anr. v.  Pawan Kumar Dubey<\/a>;\n[1976] 3  SCR 540;  State of  U.P. v.  Ram Chandra  Trivedi,<\/a>\n[1977] 1  SCR 452  and State of Orissa & Anr. v. Ram Narayan\nDass,<\/a> [19611 I SCR 606, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 443 of
\n1985.\n<\/p>\n
503<\/span><\/p>\n
     From the  Judgment and  order  dated  6.5.1985  of\t the
\nAllahabad High Court in C.M.W.P. No. 2822 of 1983.\n<\/p>\n
     Dr. Y.S.  Chitale, Mrs. Rekha Pandey, S.P. Pandey, Atul
\nTiwari, Pinaki\tMisra, Mrs.  Mamta Kachawala  and Miss\tBina
\nGupta for the Appellant.\n<\/p>\n
     M.K. Banerjee,  Solicitor General, A.K. Ganguli, Gopala
\nSubramaniam, K.J.  John, M.M. John, Harish N. Salve and Miss
\nNisha Srivastava for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     RANGANATH MISRA, J. This is an appeal by special leave.
\nThe appellant  was employed  on the  production side  of the
\nUttar Pradesh  State Handloom  Corporation, a  public sector
\nundertaking-(hereinafter referred  to as  ‘Corporation’\t for
\nshort) on  temporary basis. Having been appointed on 30th of
\nOctober, 1976  as Bunker  Sewa he  obtained  two  promotions
\nwhile still  working in\t temporary status  and by  1983\t was
\nworking as Deputy Production Manager. The appellant’s letter
\nof appointment, as far as material, stated:-\n<\/p>\n
\t       “With effect  from the  date of\ttaking\tover
\n\t  charge Shri  Rabindra Kumar  Mishra …  is hereby
\n\t  appointed as\tBunker Sewa  …… on the following
\n\t  terms and conditions:-<\/p>\n
\t       (1) That his appointment is temporary and his
\n\t  services  are\t liable\t for  termination  with\t one
\n\t  month’s notice  or one  month’s  pay\tin  lieu  of
\n\t  notice from either side
\nOn  November   22,  1982  the  appellant  was  placed  under
\nsuspension and that order read as follows:-\n<\/p><\/blockquote>\n
\t       “As a result of preliminary enquiries made by
\n\t  the  Central\t Manager  on   13.11.1982   of\t the
\n\t  Production Center,  Kunda and\t other Centres under
\n\t  the same,  it has  come to  notice that  Sri\tR.K.
\n\t  Misra, former\t Dy. Production\t Manager, Kunda,  is
\n\t  responsible for  misconduct, dereliction  of duty,
\n\t  mismanagement and showing fictitious production of
\n\t  terrycot cloth.  He is,  therefore,  placed  under
\n\t  suspension with immediate effect …………… “<\/p><\/blockquote>\n
\t\t\t\t     (Underlinings are ours)
\n504<\/span>
\n     On the  1st of  February, 1983  the order of suspension
\nwas A  revoked and  on 10th  of February,  1983 the impugned
\norder terminating his services being to the following effect
\nwas passed:-\n<\/p><\/blockquote>\n
\t       “The undersigned\t hereby gives notice to Shri
\n\t  R.K. Misra,  Deputy Production Manager, Production
\n\t  Center, Kunda,  Prataapgarh,\tSalon  Rai  Bareilly
\n\t  that his  services are  no more  required and\t his
\n\t  service will\tbe  deemed  to\tbe  terminated\tfrom
\n\t  receipt of this notice by him. It is directed that
\n\t  he will  be entitled to receive one month’s salary
\n\t  in lieu of notice period on the same rate on which
\n\t  he was  receiving salary before termination of his
\n\t  service.”<\/p><\/blockquote>\n<\/blockquote>\n
     The appellant  challenged the  order of  termination of
\nhis service  before the\t Allahabad High\t Court but  the High
\nCourt declined\tto interfere by holding that the termination
\nwas not punitive and the question of breach of principles of
\nnatural justice did not arise.<\/p><\/blockquote>\n
     It is  not disputed  that the  employer-Corporation  is
\n‘State’ within\tthe meaning  of Article\t 12; yet  it has not
\nbeen contended-and  rightly-that the  protection of  Article
\n311(2) of  the Constitution  is avilable to the employees of
\nthe Corporation.  The appellant has however, claimed that he
\nis entitled  to the  protection of  Article 14 and 16 of the
\nConstitution; though  his order\t of termination is innocuous
\nthe setting  in which  it has  been made clearly makes it an
\norder of  dismissal and\t the High  Court has  gone wrong  in
\nholding that  the order\t of termination was not punitive; as
\nservice was determined by the order of termination attaching
\nstigma the  appellant was entitled to a hearing commensurate
\nwith rules  of natural\tjustice and  in the  absence of that
\nopportunity of\tbeing  heard  the  order  is  liable  to  be
\nquashed.\n<\/p>\n
     It cannot\tbe disputed  that temporary  service can  be
\nterminated by  notice.\tThe  order  of\tappointment  in\t the
\nappellant’s case  made\tit  abundantly\tclear  that  with  a
\nmonth’s notice\tor payment  of salary  m lieu of notice such
\ntermination could  be effected by either side Rule 63 of the
\nCorporation Rules  made in  exercise of\t Article 127  of the
\nArticles of  Association of the Uttar Pradesh State Handloom
\nCorporation Limited  recognised\t such  a  power.  That\tRule
\nprovides:-\n<\/p>\n
\t       ” 1.  The appointing  authority may,  at\t any
\n\t  time, during\tthe pendency of the temporary tenure
\n\t  terminate the\t services of a temporary employee by
\n\t  giving him  one month’s  notice or  emoluments for
\n\t  such lesser period by H
\n505<\/span>
\n\t  which the notice falls short of one month.\n<\/p><\/blockquote>\n
\t       2. The temporary employee, on his part, shall
\n\t  have the  option of quitting service by giving one
\n\t  month’s notice  to  the  appointing  authority  or
\n\t  paying to  the Corporation  an amount equal to his
\n\t  one month’s pay .. ”\n<\/p><\/blockquote>\n
The order  of termination  of service in this case is indeed
\ninnocuous. The\tappellant is  not entitled to the protection
\nof Article  311(2) of the Constitution not being a member of
\na civil\t service of  the Union\tor a  State nor\t holder of a
\ncivil post under the State but his own Service Rules provide
\nunder Rule  68\tthat  if  the  punishment  of  discharge  or
\ndismissal  is\timposed,  an   enquiry\t commensurate\twith
\nrequirements of\t natural justice  is a\tcondition precedent.
\nAdmittedly no  such enquiry has been held. The question that
\ncrops up  here for  determination, therefore, is whether the
\nimpugned order\twas an\torder of  termination simpliciter or
\nreally amounted\t to an\torder of dismissal. In Purshotam Lal
\nDhingra v.  Union of  India,<\/a> [ 1958] SCR 828. a Constitution
\nBench of this Court stated:-\n<\/p>\n
\t       “This  use   of\texpression   ‘terminate’  or
\n\t  ‘discharge’ is not conclusive. In spite of the use
\n\t  of such  innocuous expressions,  the Court  has to
\n\t  apply the  two tests\tmentioned above, namely. (1)
\n\t  whether the servant had a right to the post or the
\n\t  rank or  (2) whether he has been visited with evil
\n\t  consequences of  the kind herinbefore referred to?
\n\t  If the case satisfied either of the two tests then
\n\t  it must be held that the servant has been punished
\n\t  and the  termination of  his service must be taken
\n\t  as a\tdismissal or  removal from  service  or\t the
\n\t  reversion to his substantive rank must be regarded
\n\t  as a\treduction in rank and if the requirements of
\n\t  the rules  and Article  311, which give protection
\n\t  to Government servant have not been complied with,
\n\t  the termination of the service or the reduction in
\n\t  rank must  be held to be wrongful and in violation
\n\t  of the constitutional right of the servant.\n<\/p><\/blockquote>\n
This view has been approved by another Constitution Bench of
\nthis Court  in Champaklal  Chimanlal Shah  v. The  Union  of
\nIndia,<\/a>\t[  19641  5  SCR  190.\tAfter  indicating  approval,
\nWanchoo, J. as he then was, spoke for the Constitution Bench
\nthus:-\n<\/p>\n
\t       “It is  well known  that Government  does not
\n\t  terminate
\n506<\/span>
\n\t  nate the  services of a public servant, be he even
\n\t  a temporary  servant without\treason;\t nor  is  it
\n\t  usual for Government to reduce a public servant in
\n\t  rank without\treason even though he may be holding
\n\t  the higher  rank only\t tempoarily. One  reason for
\n\t  terminating the  services of\ta temporary  servant
\n\t  may be  that the  post that he is holding comes to
\n\t  an end.  In that case, there is nothing further to
\n\t  be said  and his  services terminate when the post
\n\t  comes to  an end.  Similarly a  Government servant
\n\t  temporarily officiating  in a higher rank may have
\n\t  to be\t reverted to  his substantive post where the
\n\t  incumbent of the higher post comes back to duty or
\n\t  where the  higher post  created  for\ta  temporary
\n\t  period comes to an end. But besides the above, the
\n\t  Government may  find it necessary to terminate the
\n\t  services of  a temporary  servant  if\t it  is\t not
\n\t  satisfied with  his conduct or his suitability for
\n\t  the job and\/or his work. The same may apply to the
\n\t  reversion of\ta public  servant from a higher post
\n\t  to a\tlower post  where the  post  is\t held  as  a
\n\t  temporary measure.  This dissatisfaction  with the
\n\t  work and\/or  conduct of  a temporary\tservant\t may
\n\t  arise on  complaint against him. In such cases two
\n\t  courses are  open to\tGovernment. It may decide to
\n\t  dispense with\t the  services\tof  the\t servant  or
\n\t  revert him  to his  substantive post\twithout\t any
\n\t  action being\ttaken to punish him for his bad work
\n\t  and\/or conduct.  Or the  Government may  decide to
\n\t  punish  such\t a  servant  for  his  bad  work  or
\n\t  misconduct, in  which case even though the servant
\n\t  may be  temporary, he\t will have the protection of
\n\t  Article 311(2).  But even  where it is intended to
\n\t  take action  by way  of  punishment  what  usually
\n\t  happens is  that something  in the  nature of what
\n\t  may be  called a preliminary enquiry is first held
\n\t  in  connection  with\tthe  alleged  misconduct  or
\n\t  unsatisfactory work.\tln this\t preliminary enquiry
\n\t  the explanation  of the  government servant may be
\n\t  taken and  documentary and  even oral evidence may
\n\t  be considered. It is usual when such a preliminary
\n\t  enquiry makes\t out a\tprima facie case against the
\n\t  servant concerned  that charges  are\tthen  framed
\n\t  against him  and he  is asked\t to show  cause\t why
\n\t  disciplinary action  be not  taken against him. An
\n\t  enquiry officer  (who may  be himself\t in the case
\n\t  where the  appointing authority  is other than the
\n\t  Government) is  appointed who\t holds enquiry\tinto
\n\t  the charges  communicated to the servant concerned
\n\t  after taking\this explanation\t and his  enquiry is
\n\t  held in accordance with the principles of natural
\n507<\/span>
\n\t  justice.  This  is  what  is\tknown  as  a  formal
\n\t  departmental enquiry\tinto the conduct of a public
\n\t  servant …….\n<\/p><\/blockquote>\n
\t       “Generally therefore a preliminary enquiry is
\n\t  usually held\tto determine  whether a\t prima facie
\n\t  case for  a formal  departmental enquiry  is\tmade
\n\t  out, and  it is very necessary that the Two should
\n\t  not be  confused. Even  where Government  does not
\n\t  intend to take action by way of punishment against
\n\t  a temporary  servant on  a report  of bad  work or
\n\t  misconduct a\tpreliminary enquiry  is\t usually  is
\n\t  held to satisfy Government that there is reason to
\n\t  dispense with the services of a temporary employee
\n\t  or to\t revert him  to his substantive post, for as
\n\t  we have  said already, Government does not usually
\n\t  take action  of  this\t kind  without\tany  reason.
\n\t  Therefore  when  a  preliminary  enquiry  of\tthis
\n\t  nature is held in the case of a temporary employee
\n\t  or a\tGovernment servant  holding  a\thigher\trank
\n\t  temporarily it  must\tnot  be\t confused  with\t the
\n\t  regular  departmental\t  enquiry  (which  generally
\n\t  follows  such\t a  preliminary\t enquiry)  when\t the
\n\t  Government decides  to frame\tcharges\t and  get  a
\n\t  departmental enquiry made in order that one of the
\n\t  three major  punishments already  indicated may be
\n\t  inflicted on the government servant. Therefore, so
\n\t  far as the preliminary enquiry is concerned, there
\n\t  is no\t question of  its being\t governed by Article
\n\t  311(2)  for\tthat  enquiry\tis  really  for\t the
\n\t  satisfaction\tof   government\t to  decide  whether
\n\t  punitive action  should be  taken or action should
\n\t  be taken  under the  contract or  the rules in the
\n\t  case\tof  a  temporary  government  servant  or  a
\n\t  servant holding  higher rank temporary to which he
\n\t  has no  right. In  short a  preliminary enquiry is
\n\t  for the  purpose of  collection of facts in regard
\n\t  to the conduct and work of a government servant in
\n\t  which he  may or may not be associated so that the
\n\t  authority concerned  may decide  whether or not to
\n\t  subject  the\tservant\t concerned  to\tthe  enquiry
\n\t  necessary under  Article 311 for inflicting one of
\n\t  the three  major  punishments\t mentioned  therein.
\n\t  Such a  preliminary enquiry  may even\t be held  ex
\n\t  parte, for  it is  merely for\t the satisfaction of
\n\t  Government,  though\tusually\t for   the  sake  of
\n\t  fairness, explanation\t is taken  from the  servant
\n\t  concerned even at such an enquiry.”\n<\/p><\/blockquote>\n
Both Pershotam\tLal Dhingra’s  case (supra) and Champaklal’s
\ncase
\n508<\/span>
\n(supra) were referred to and relied upon in Shamsher Singh &
\nAnr. v.\t State of  Punjab, [1975]  1 SCR 814. This is a case
\nwhich was  heard by a 7-Judge Bench. Ray, CJ., who spoke for
\nthe majority  of five  considered all  the cases rendered by
\nthis Court  till then  touching on the point and at page 841
\nof the Reports stated as follows:-\n<\/p>\n
\t       “The form  of the order is not decisive as to
\n\t  whether the order is by way of punishment. Even an
\n\t  innocuously worded  order terminating\t the service
\n\t  may in  the facts  and circumstances\tof the\tcase
\n\t  establish that  an  enquiry  into  allegations  of
\n\t  serious  and\t grave\t character   of\t  misconduct
\n\t  involving stigma  has been  made in  infraction of
\n\t  the provision\t of Article  311. In such a case the
\n\t  simplicity of\t the form of the order will not give
\n\t  any sanctity.”\n<\/p><\/blockquote>\n
 In  Sharnsher Singh’s\tcase (supra)  the ratio\t of the\t two
\nearlier Constitution  Bench judgment  was approved. On facts
\nit was\tfound that the order of termination though innocuous
\nin form\t was really  an order  by way of punishment removing
\nthe appellant  from service on the basis of charges of gross
\nmisconduct found  to have  been established  by\t an  exparte
\nenquiry conducted  by the S.P. Vigilance Department with the
\nonly object  of ascertaining truth of the alleged misconduct
\nand for the purpose of dismissing or removing the appellant,
\nif charges  were found established. It was ultimately on the
\nbasis of  specific findings  recorded by  the S.P. Vigilance
\nthat the  appellant’s services\twere terminated.  The  Court
\nfound that the enquiry by the S.P. Vigilance was essentially
\nand in\tcharacter and  object different\t from  the  informal
\nenquiry into  the and  in object different from the informal
\nenquiry into  the suitability  of the appellant. Ray, CJ. in
\nShamsber Singh’s case (supra) further pointed out:-\n<\/p>\n
\t       “The fact of holding an enquiry is not always
\n\t  conclusive. What  is decisive is whether the order
\n\t  is really by way of punishment ….. A probationer
\n\t  whose terms  of services provided that it could be
\n\t  terminated without  any  notice  and\twithout\t any
\n\t  cause\t being\t assigned  could   not\t claim\t the
\n\t  protection of Article 311(2).\n<\/p><\/blockquote>\n
\t       An  order   terminating\tthe  services  of  a
\n\t  temporary servant  or probationer  under the Rules
\n\t  of employment\t and without  anything more will not
\n\t  attract Article  311. Where a departmental enquiry
\n\t  is contemplated  and if  an enquiry is not in fact
\n\t  proceeded with Article 311 will not be attracted
\n509<\/span>
\n\t  unless it  can be  shown  that  the  order  though
\n\t  unexceptionable in form is made following a report
\n\t  based on misconduct. ”\n<\/p><\/blockquote>\n
In Regional  Manager &\tAnr. v.\t Pawan Kumar Dubey,<\/a> [1976] 3
\nSCR 540 it was observed by this Court thus: 1
\n\t       “We think  that the  principles\tinvolved  in
\n\t  applying Article  311(2) having been substantially
\n\t  explained in\tShamsher  Singh’s  case\t (supra)  it
\n\t  should not  no longer\t be possible  to  urge\tthat
\n\t  Sughar  Singh’s  case\t could\tgive  rise  to\tsome
\n\t  misapprehension of the law. Indeed we do not think
\n\t  that the principles of law declared and applied so
\n\t  often have  really changed. But the application of
\n\t  the same  law to  the differing  circumstances and
\n\t  facts of  various cases which have come up to this
\n\t  court could  create the impression some times that
\n\t  there is  some conflict  between decisions of this
\n\t  Court.  Even\t where\tthere  appears\tto  be\tsome
\n\t  conflict, it\twould, we  think,  vanish  when\t the
\n\t  ratio\t decidendi   of\t each\tcase  is   correctly
\n\t  understood. It  is the  rule\tdeducible  from\t the
\n\t  application of  law to the facts and circumstances
\n\t  of a\tcase which  constitutes its  ratio decidendi
\n\t  and not some conclusion based upon facts which may
\n\t  appear to  be similar. One additional or different
\n\t  fact\tcan   make  a  word  of\t difference  between
\n\t  conclusions  in  two\tcases  even  when  the\tsame
\n\t  principles are  applied in  each case\t to  similar
\n\t  facts .. “.\n<\/p>\n
     As we  have already  observed, though the provisions of
\nArticle 311(2) of the Constitution do not apply, the Service
\nRules which  are almost\t at par\t make the  decisions of this
\nCourt relevant\tin  disposing  of  the\tpresent\t appeal.  In
\nseveral authoritative  pronouncements  of  this\t Court,\t the
\nconcept of ‘motive’ and ‘foundation’ has been brought in for
\nfinding out  the effect\t of the order of termination. If the
\ndelinquency of\tthe officer in temporary service is taken as
\nthe operative  motive in  terminating the service, the order
\nis  not\t considered  as\t punitive  while  if  the  order  of
\ntermination  is\t  founded  upon\t  it,  the   termination  is
\nconsidered to be a punitive action. This is so on account of
\nthe fact  that it  is necessary for every employer to assess
\nthe service  of the temporary incumbent in order to find out
\nas to  whether he  should be confirmed in his appointment or
\nhis services  should be terminated. It may also be necessary
\nto find\t out whether  the officer  should be  tried for some
\nmore time  on temporary\t basis. Since  both in\tregard to  a
\ntemporary employee  or an  officiating employee\t in a higher
\npost such H
\n510<\/span>
\nan  assessment\t would\tbe   necessary\tmerely\tbecause\t the
\nappropriate authority  proceeds to  make an  assessment\t and
\nleaves a record of its views the same would not be available
\nto be  utilised to  make the  order of termination following
\nsuch assessment\t punitive in character. In a large democracy
\nas ours,  administration is  bound to  be impersonal  and in
\nregard to  public officers  whether in\tGovernment or public
\nCorporations, assessments  have got  to be  in\twriting\t for
\npurposes  of   record.\tWe   do\t not   think  there  is\t any
\njustification in  the contention  of the appellant that once
\nsuch an\t assessment is\trecorded, the  order of\t termination
\nmade soon thereafter must take the punitive character.\n<\/p>\n
     There may\tbe cases  where an enquiry is undertaken and
\nprima facie  material for  serious  charges  are  found;  by
\ndisclosing the\tresult\tof  such  preliminary  enquiry,\t the
\nofficer concerned  is put  under suspension in contemplation
\nof disciplinary\t action. After\tsuch steps  have been taken,
\nthe employer\/appropriate  authority decides  not to continue
\nthe departmental  proceedings but makes an order terminating
\nthe service, as has been done in this case.\n<\/p>\n
     Counsel for  the respondents  pointed that\t that in the
\nmatter of  ordering termination\t of service  of a  temporary
\nemployee, the  order follows a review of his working. Unless
\nthe termination\t is ordered because there is no need for the
\npost, in  the absence of reasons for termination, the action
\nis open\t to challenge  as arbitrary,  particulary when other
\nsimilarly situated  employees are continued in service. When
\nreasons are  given,  they  are\tbound  to  disclose  adverse
\nfeatures of  the employee  and disclosure  of such  features
\nbecome the ground of challenge of the order on the plea that
\ntermination is\tnot innocuous.\tTo meet\t this position,\t the
\ndistinction  between  ‘motive’\tand  ‘foundation’  has\tbeen
\nadopted by the courts. As long as the adverse feature of the
\nemployee remains  the motive and does not become transformed
\nas  the\t foundation  of\t the  order  of\t termination  it  is
\nunexceptionable. No straight jacket test can be laid down to
\ndistinguish the\t two and  whether ‘motive’  has\t become\t the
\nfoundation has\tto be decided by the court with reference to
\nthe facts  of a given case. The two are certainly two points
\nof one\tline-ordinarily apart  but when\t they come  together
\n‘motive’ does get transformed and merges into foundation.\n<\/p>\n
     As has  been held\tby a  three-Judge Bench\t in State of
\nU.P. v.\t Ram C’handra Trivedi,<\/a> [1977] 1 SCR 462 the position
\nin regard  to cases  of the  present nature is clear and the
\nexamination of\tthe decisions of this court shows that there
\nis no  real conflict  in their\tratio decidendi. On facts as
\nestablished in\tdifferent cases,  courts  have\tapplied\t the
\nknown
\n511<\/span>
\ntests and  in order that complete justice may be done on the
\nfacts found, there have been punishable deviations.\n<\/p>\n
     We may point out that this Court in a Consitution Bench
\njudgment in  the case  of State\t of Orissa  &  Anr.  v.\t Ram
\nNarayan Dass,<\/a> [ 1961] 1 SCR 606, indicated:-\n<\/p>\n
\t       “The fact of the holding of an enquiry is not
\n\t  decisive of  the question.  What  is\tdecisive  is
\n\t  whether the  order in\t the light  of the decisions
\n\t  laid down in Parshotam Lal Dhingra’s case.<\/p><\/blockquote>\n
     Keeping in\t view the  principles indicated above, it is
\ndifficult to  accept the  claim of  the appellant.  He was a
\ntemporary servant  and had no right to the post. It has also
\nnot been  denied that  both under the contract of service as
\nalso the  Service Rules\t governing him\tthe employer had the
\nright to  terminate his\t services by  giving him one month’s
\nnotice. The  order to  which exception is taken is expressly
\nan order of termination in innocuous terms and does not cast
\nany stigma  on the  appellant nor does it visit him with any
\nevil consequences.  It is also not founded on misconduct. In
\nthe circumstances, the order is not open to challenge .\n<\/p>\n
     We may  point out\tthat the  learned Solicitor  General
\nappearing for the Corporation had at the commencement of the
\narguments suggested  that the  appellant could be given some
\ncompensation for  termination. Ordinarily,  under the law he
\nwould not  be entitled\tto compensation\t in a  case of\tthis
\ntype, but  since he  has been  put out\tof employment  at an
\nadvanced age  and it  may be  difficult for  him to  get  an
\nalternate employment,  while dismissing\t his appeal we think
\nit  reasonable\tto  call  upon\tthe  Corporation  to  pay  a
\nconsolidated amount of Rs.25000 (Rupees Twenty-five Thousand
\nonly).\n<\/p>\n
     Accordingly the  appeal is\t dismissed.  The  amount  of
\nRs.25,000 as  indicated above  may be  paid to the appellant
\nwithin one  month from\ttoday. There  would be\tno order for
\ncosts.\n<\/p>\n
P.S.S.\t\t\t\t\t Appeal dismissed.\n512<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ravindra Kumar Misra vs U.P. State Handloom Corporation … on 15 October, 1987 Equivalent citations: 1987 AIR 2408, 1988 SCR (1) 501 Author: M Rangnath Bench: Misra Rangnath PETITIONER: RAVINDRA KUMAR MISRA Vs. RESPONDENT: U.P. STATE HANDLOOM CORPORATION LTD. & ANR. DATE OF JUDGMENT15\/10\/1987 BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-5842","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRavindra Kumar Misra vs U.P. 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