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Purnananda Patra v. Collector Of Central Excise And Another
Structured Summary of the Opinion (Sinha, J.)
Factual and Procedural Background
The petitioner was appointed as a temporary Inspector in the Central Excise Collectorate, Calcutta on 30 July 1946. On 1 May 1951 the Collector of Central Excise issued an order (annexure "A") allowing the petitioner to "cross the probationary stage" with effect from 1 January 1950 along with other Inspectors; the order warned that failure to pass the departmental examination on the next permissible chances would lead to stoppage of increment and possible discharge or reversion.
The petitioner failed the departmental examination held in May 1953 and had his increment stopped from 1 August 1953. He was transferred on 9 May 1954 and received a notice concerning a further departmental examination which he contends he actually received on 12 May 1954 for an examination on 13 May 1954; he did not appear. On 3 May 1955 an order under Rule 6 of the Central Excise Departmental Examination Rules, 1949 discharged him (annexure "B"). He did not at that stage object that the Departmental Examination Rules did not apply to him.
On 7 August 1955 the petitioner was re-appointed as a temporary lower division clerk (under protest). On 28 June 1956 he applied in this High Court under Article 226 of the Constitution challenging the discharge. The Government later cancelled the earlier discharge order (on 7 January 1957 according to the opinion) and reinstated him; he was posted to Kalimpong and then transferred to Kurseong. He rejoined on 31 May 1957 and appeared in departmental examinations on 6 and 8 July 1957, failing both.
On 25 February 1958 his services were terminated under Rule 5 of the Central Civil Services (Temporary Services) Rules, 1949. He challenged that termination in the court below; the court dismissed his application and discharged the rule. The present appeal contests that dismissal of the court below. The court below's reasoning was accepted in most respects by the present court and the appeal was dismissed.
Legal Issues Presented
- Whether the Central Civil Services (Temporary Services) Rules, 1949 apply to the petitioner (the contention that the Rules are retrospective and thus not applicable).
- Whether the petitioner had attained "quasi-permanent service" under Rule 3 of the 1949 Rules (and therefore whether Rule 6, governing termination of quasi-permanent service, applied).
- Whether termination of the petitioner's service was governed by Rule 5 (termination of temporary service by notice) or by Rule 6 (termination of quasi-permanent service), and the legal consequences of that classification.
- Whether the Central Excise Departmental Examination Rules, 1949 were a prerequisite condition to termination under the Temporary Service Rules.
- Whether the petitioner's discharge amounted to punishment such that the protections of Article 311 of the Constitution applied.
Arguments of the Parties
Appellant's (Mr. Burman) Arguments
- The 1949 Temporary Services Rules do not apply retrospectively to the petitioner and therefore should not govern his termination.
- Having been allowed to "cross the probationary stage", the petitioner had ceased to be in temporary service and therefore could not be terminated under rules applicable to temporary servants.
- The petitioner had attained quasi-permanent service under Rule 3 (or alternatively that the requirements of Rule 3 were satisfied), so that Rule 6 should govern termination rather than Rule 5.
- That the discharge should be treated as a punitive dismissal, attracting the protections of Article 311 of the Constitution.
Respondent/Government Position (as reflected in the opinion)
- It was not disputed that the petitioner had been appointed under the Central Civil Services (Temporary Services) Rules, 1949 and therefore was subject to rules lawfully made during his term of service.
- The Government treated the petitioner as holding a temporary post and terminated his services under Rule 5 by giving the required notice; where Rule 5 applies notice is sufficient and no further reason need be given.
- The Government accepted there had been some violation of natural justice in the earlier discharge and cancelled that earlier order and reinstated the petitioner; however, subsequent termination on 25 February 1958 was effected under Rule 5 of the Temporary Services Rules.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| P.L. Dhingra v. Union of India, 1958 SCA 37 (AIR 1958 SC 36) | Quoted passage discussing Rule 3 of the 1949 Temporary Service Rules and the meaning of the clauses leading to quasi-permanent service. | The court considered the Dhingra passage but held that the use of the word "or" in that judgment was intended conjunctively (i.e., both clauses of Rule 3 must be satisfied). The court concluded Dhingra did not decide the interpretation point and that both conditions in Rule 3 are required for quasi-permanent service. |
| Satish Chandra Anand v. Union of India, 1953 SCR 655 (AIR 1953 SC 250) | Principle that where an employee is governed by Temporary Services Rules, those rules constitute conditions of service; if requisite notice is given or compensation is provided, the protections of Article 311 may not apply. | The court relied on this authority to hold that the petitioner's termination under the Temporary Services Rules (by notice under Rule 5) did not amount to a punitive dismissal invoking Article 311; rather it was a termination in accordance with conditions of service. |
Court's Reasoning and Analysis
The court proceeded by identifying the relevant statutory framework and applying the rules to the factual matrix.
1. Applicability of the 1949 Rules: The court rejected the appellant's contention that the Temporary Services Rules were not applicable because they were "retrospective." It observed that government servants are subject to rules lawfully made under constitutional rule-making powers during their term of service and there is no guarantee that a rule in force at the time of appointment will remain the only rule governing conditions of service. Thus the 1949 Rules applied to the petitioner.
2. Definitions and Rule 3 (quasi-permanent service): The court examined the definitions (R.2) and Rule 3 itself. Rule 3 states that a government servant shall be deemed to be in quasi-permanent service if (i) he has been in continuous Government service for more than three years, and (ii) the appointing authority has issued a declaration as to his suitability for quasi-permanent employment. The court emphasized that both clauses must be satisfied and that the absence of a declaration makes it impossible to hold that quasi-permanent service has commenced. The court disagreed with the appellant's attempt to read the clauses as alternatives.
3. Application of Rules 5 and 6: Having found that there was no declaration under Rule 3, the court concluded Rule 6 (which governs termination of quasi-permanent service) was inapplicable. Instead Rule 5 applied. Rule 5 permits termination of a temporary government servant (not in quasi-permanent service) at any time by notice in writing; the normal period of notice is one month unless otherwise agreed. The petitioner had been terminated by notice under Rule 5.
4. Relation of departmental examination rules to termination under Rule 5: The court observed that the requirement to pass departmental examinations, contained in the Central Excise Departmental Examination Rules, 1949, is not a condition imposed by Rule 5. The broad power under Rule 5 to terminate by notice meant that the departmental examination rules were not determinative of the validity of termination under Rule 5.
5. Effect of probation and "permanence": The court rejected the argument that crossing the probationary stage made the appellant other than a temporary servant. Probation is a period of testing efficiency and does not convert a temporary post into a permanent post; at best it may make one a permanent incumbent of a temporary post, which does not change the substantive character of the service for these rules.
6. Punishment and Article 311: The court addressed the contention that the discharge was punitive and thus Article 311 would apply. Relying on established authority (Satish Chandra Anand), the court held that where service is governed by Temporary Services Rules and termination is effected in accordance with those rules (i.e., by giving required notice or compensation), Article 311 does not operate; such termination is not "punishment" requiring the procedural safeguards of Article 311.
Based on these analytical steps, the court agreed with the court below on the principal points and found no reason to differ from its conclusions.
Holding and Implications
Holding: The appeal is dismissed. The court concluded that the petitioner was governed by the Central Civil Services (Temporary Services) Rules, 1949; he was not in quasi-permanent service (no declaration under Rule 3) and his services were validly terminated under Rule 5. There will be no order as to costs.
Implications:
- The direct effect on the parties: the petitioner's termination under Rule 5 stands and the appeal fails.
- The court treated the termination as a discharge in accordance with the applicable conditions of temporary service rather than as a punitive dismissal that would attract Article 311 protections (following the precedent cited).
- The opinion applies existing authorities about the scope of Temporary Service Rules and the interpretation of Rule 3; it does not purport to create a new principle beyond those applications.
Note: This summary is strictly confined to the matters and wording contained in the provided opinion and does not introduce information beyond that text.
Sinha, J.:— This is an appeal against an order of Bose, J. (as he then was) dated 13th August, 1959. The facts of this case are shortly as Follows: On the 30th July, 1946 the petitioner was appointed as a temporary Inspector of Central Excise Collectorate, Calcutta. On the 1st May, 1951, an order was made by the Collector of Central Excise, Calcutta and the petitioner was “allowed to cross the probationary stage”. A copy of the order is annexure “A” to the petition. This order was passed in respect of several Inspectors and they were all allowed to cross the probationary stage in the time-scale of pay prescribed for Inspectors with effect from the date shown against each name. The date so far as the petitioner is concerned was the 1st January, 1950. All of them were warned that if they failed to pass the departmental examination for Inspector of Central Excise with the next permissible chances occurring thereafter, their increment in the time scale of pay would be stopped until further orders and they would be liable to be discharged or reverted as the case may be. The petitioner accepted this position and appeared at the departmental examination. In the May examination held in the year 1953, the petitioner appeared but failed and his increment was stopped from the 1st August, 1953. The petitioner was on the 9th May, 1954 transferred to Banamalipur. He appears to have been served with a notice about further departmental examination but it is his grievance that he actually received the notice on the 12th May, 1954 for an examination which was to be held on the 13th May, 1954. However he did not appear in that examination or could not appeal, and on the 3rd May, 1955 an order was made under R. 6 of the Central Excise Departmental Examination Rules, 1949 discharging him from service. A copy of this is annexure “B” to the petition. We do not find that at that stage he put forward the objection that these Departmental Examination Rules did not apply to nim. On the 7th August, 1955 he was re-appointed as a temporary lower division clerk. He accepted the position under protest and on the 7th January, 1956 he was informed that there was no substance in his objections and he had been appointed only on compassionate grounds. On the 28th June, 1956 the petitioner made an application in this High Court in its writ jurisdiction and a rule was issued under Article 226 of the Constitution. In this application the petitioner challenged the order of discharge dated 3rd May, 1955. The Government doubtlessly realised that there was some violation of the rules of natural justice because on the 7th January, 1957 the Government cancelled the order of discharge dated 3rd May, 1956 and the petitioner was re-instated and posted to Kalimpong and thereafter transferred to Knrseong. On the 31st May, 1957 he joined service at Kalimpong and on the 6th and 8th July, 1957 appeared at the departmental examination. He failed in both of them and on the 25th February, 1958 his services were terminated under R. 5 of the Central Civil Services (Temporary Services) Rules, 1949. It is against this order that the application made in the Court below was directed. The points which were raised in the application were all held against the petitioner and the application was dismissed and the rule discharged. As regards all the reasonings given in the court below we agree. It is therefore not necessary to deal with all the points, because it will be sufficient to deal with the several points that have been argued before us by Mr. Burman. It is not disputed that the petitioner appellant had been appointed under the Central Civil Services (Temporary Services) Rules, 1949 as a Government servant in temporary service. The first question that it raised is whether the 1949 Rules applied, because it is stated that the Rules are not retrospective. Upon tins point, the learned Judge in the court below has given a very satisfactory answer. Government servants in India, are all subject to the rules made by the appropriate authority, under the rule making powers given under the Constitution. There is no guarantee that any particular Government servant will continue to enjoy the benefits of a rule which was in existence when he joined service. On the other hand, he is subject to all rules which may be brought into existence lawfully at any time during his term of service. The word “retrospective” cannot properly be applied to the facts of the case. Government servants, being subject to the disability, mentioned above, cannot be heard to say that they will not be governed by the rules which apply to them from time to time, except the rules which were in existence at the time when they joined service. That being so, it is quite clear that the 1949 rules apply to the petitioner. This objection being out of the way, all we are concerned in this case is to find out the provisions of the said rules and apply them to the facts of the case. Under R. 2 ‘Government service’ means temporary service under the Government of India.” Quasi permanent service means temporary service commencing from the date on which a declaration issued under R. 3 takes effect and consisting of periods of duty and leave (other than extraordinary leave) after that date. “Temporary post” means officiating and substantive service in a temporary post and officiating service in a permanent post under the Government of India. Rule 3 is important and is set out below:
“A Government servant shall be deemed to be in quasi-permanent service:
(i) if he has been in continuous Government service for more than three years, and
(ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualification, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor-General may issue from time to time”.
2. Rule 5 gives power to Government to terminate the service of a Government servant in temporary service. The terms of Rule 5 are set out below:
“5.(a) The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant.”
3. Rule 6 deals with the method of termination of the services of a Government servant in a quasi-permanent service. Coming back to the facts of this case, we find that the petitioner has been dealt with under R. 5 and his services have been terminated by giving notice under it and in doing so, reference has been made to the fact that he has not been able to pass his departmental examination as is necessary under the Central Excise Departmental Examinations Rules, 1949. The latter is not a condition imposed by rule 5. Mr. Burman has not disputed the position that if rule 5 applied, the power is wide indeed and no reason is to be given, but the notice given under it is sufficient. Mr. Burman however argues that his client having passed the probationary stage had ceased to be in temporary service. In my opinion, that is an untenable position. As has been pointed out above, a person may be said to hold a “temporary post” where he is in substantive service in a temporary post and that is exactly what the petitioner has been doing in this case. There is no material to show that he was ever made permanent, in which case he would be governed by the rules which apply to permanent servants. The mere fact that the petitioner was on probation for some time, does not affect the question. “Probation” merely means that a Government servant is being tested for his efficiency for sometime. That does not make him, upon the termination of the term of probation, a permanent incumbent of a permanent post, although he may, in a sense, be said to have become a permanent incumbent of a temporary post. In that sense the nature of his substantive service has not altered. Next, Mr. Burman argues that his client is in a quasi permanent service. As the learned Judge in the court below has pointed out, in order to be in a quasi permanent service, two tests have to be satisfied which are laid down in R. 3. Mr. Burman tried to argue that these are alternative, but had to agree that the word “or” is not there. In fairness to him, we must point out that he has referred to the Supreme Court decision in P.L Dhingra v. Union of India, 1958 SCA 37 at p. 63 : (AIR 1958 SC 36 at p. 48) where Das, C.J says as follows:
“Further, take the case of a person who having been appointed temporarily to a post has been in continuous service for more than three years or has been certified by the appointing authority as fit for employment in a quasi-permanent capacity, such person, under R. 3 of the 1949 Temporary Service Rules, is to be in quasi-permanent service which, under R. 6 of those Rules, can be terminated (i) in the circumstances and in the manner in which the employment of a Government servant in a permanent service can be terminated or (ii) when the appointing authority certifies that a reduction has occurred in the number of post available for Government servants not in permanent service.”
4. The interpretation of Rule 3 was not the subject-matter of Dhingra's case, 1958 SCA 37: (AIR 1958 SC 36) and in my opinion by using the word “or” the learned Chief Justice did not mean that it was alternative. It was used in the sense of “and”, that is to say conjunctively. A reference to Rule 3 itself will show that both clauses (i) and (ii) have to be satisfied and they are not in the alternative, and this appears beyond doubt from the definition of the term “quasi-permanent service” which means temporary service commencing from the date of the declaration. Therefore, without a declaration it can never commence and it would be impossible to hold that a person is in quasi-permanent service without the period of such service commencing on any day. In this particular case, there has been no declaration and we agree with the court below that the petitioner has not established that he was in quasi-permanent service.
5. It follows that R. 6 has no application. We therefore come to the conclusion that the petitioner was in temporary service governed by the Central Civil Services (Temporary Services) Rules, 1949. We further come; to the conclusion that he is not in quasi-permanent service and it is Rule 5 and not Rule 6 which applies. It has not been argued before us that it Rule 5 does apply then the departmental examination rules are of any importance. These are the only points that have been argued before us and we see no reason to disagree with tin; findings of the court below. Our own view has been set out above. The argument of Mr. Burman that we should hold that the petitioner has been discharged by way of punishment cannot be sustained. It has been firmly established now by decisions of the Supreme Court that where a person is governed by the Temporally Services Rules, the same become the conditions of service, so tar as he is concerned, and provided that the requisite notice has been given or compensation has been provided for, the provisions of Article 311 of the Constitution do not operate. In other words, it is not a case of punishment at all but dismissal or discharge as the case may be, in accordance with the terms of service. See Satish Chandra Anand v. Union of India, 1953 SCR 655: (AIR 1953 SC 250).
6. For the reasons mentioned, this appeal fails and should be dismissed. There will be no order as to costs.
Gupta, J.:— I agree.
DJ/SG/D.V.C
7. Appeal dismissed.
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