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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • M.R.Choudhary
  • J.K.Roy
  • H.R.Sen
Judges
  • T.N.R.Tirumalpad
Acts
  • Rule 5, Central Civil Services (Temporary Services) Rules, 1949.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • M.R.Choudhary
  • J.K.Roy
  • H.R.Sen
Judges
  • T.N.R.Tirumalpad
Acts
  • Rule 5, Central Civil Services (Temporary Services) Rules, 1949.
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is an application by the Chief Commissioner of Tripura and the Union Territory of Tripura for the issue of a certificate to prefer an appeal to the Supreme Court against this Court's order in Civil Misc. Writ Petition No. 4 of 1959 dated 15-1-60. In that earlier order the Court directed a writ of certiorari quashing an order of dismissal passed on the respondent (a constable) by the Superintendent of Police, Tripura.

Relevant factual chronology in the opinion:

  • The respondent was a temporary police constable appointed on 18-4-1954. He had previously been appointed on 22-5-1951 and was dismissed on 9-11-1951 because his conduct had led to conviction on a criminal charge.
  • Despite knowledge of that conviction and prior dismissal, the Superintendent re-appointed him on 18-4-1954 (the record indicates the re-appointment and condonation were due to his being one of the best foot-bailers in Tripura).
  • On 6-1-58 the Superintendent discharged the respondent under Rule 5, Central Civil Services (Temporary Services) Rules, 1949; on appeal to the Chief Commissioner it was represented that he had in fact been dismissed because he was an ex-convict in a theft case and the Tripura Administration had decided he could not be re-employed in Government departments.

The writ petition before this Court concluded that the termination amounted to a dismissal as punishment that debarred future employment and that Article 311(2) of the Constitution afforded protection. The present application seeks a certificate to appeal to the Supreme Court on questions of law arising from that judgment.

Legal Issues Presented

  1. Whether the termination of the respondent's temporary service in the circumstances amounted to a dismissal as a punishment which carries the consequence of debarment from future employment and hence attracts protection under Article 311(2) of the Constitution.
  2. How Proviso (a) to Article 311(2) of the Constitution is to be interpreted: whether the Proviso applies only where a public servant is convicted of a criminal charge after entry into service, or whether it also applies to convictions that occurred before appointment.

Arguments of the Parties

Petitioners' Arguments

  • The petitioners (Chief Commissioner of Tripura and the Union Territory of Tripura) contend that the two findings in the Court's judgment raise substantial questions of law regarding the interpretation of Article 311(2) of the Constitution and that the Court should grant a certificate for appeal to the Supreme Court.

Respondent's Arguments

  • Counsel for the respondent (Mr. M. R. Choudhury) brought to the Court's attention the Assam High Court decision in Jagadindra Nath Gupta v. Inspector General of Assam Rifles (AIR 1959 Assam 134), which holds that the ground of conduct mentioned in Proviso (a) to Article 311(2) refers to conviction on a criminal charge both before and after appointment — an interpretation seemingly contrary to this Court's earlier view.
  • The respondent also argued (in opposition to granting a certificate) that he is a poor, dismissed Class IV employee who has been starving, and that issuing a certificate (and thereby permitting an appeal) would further delay his reinstatement and leave him unable to contest the Supreme Court appeal effectively.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Parshotam Lai Dhingra v. Union of India, AIR 1958 SC 36 Established that when termination of a temporary servant's service is accompanied by consequences (such as debarment from future employment) it may amount to dismissal attracting Article 311(2) protection; the test concerns consequences rather than motive. The Court followed Dhingra's decision in concluding that the respondent's termination amounted to dismissal for purposes of Article 311(2). The Court held that this issue did not raise a new question of constitutional law requiring a certificate because it was an application of the Supreme Court's precedent.
Kamalakar Shankar Kate v. Principal, Training College for Men, AIR 1960 Bom 9 Held that termination of service accompanied by punishment and which would impede obtaining other employment amounts to dismissal. The Court observed that the Bombay High Court's decision did not differ from the Supreme Court's decision in Dhingra's case; it confirmed the same test (consequences of termination) and therefore did not justify issuing a certificate to revisit that point.
Jagadindra Nath Gupta v. Inspector General of Assam Rifles, AIR 1959 Assam 134 Held that the ground of conduct mentioned in Proviso (a) to Article 311(2) refers to conviction on a criminal charge both before and after appointment. The Court acknowledged this Assam High Court decision as being on the face of it contrary to its interpretation of Proviso (a). The existence of this conflicting authority contributed materially to the Court's view that a substantial constitutional question concerning the interpretation of Proviso (a) should be certifiable to the Supreme Court.

Court's Reasoning and Analysis

The Court analyzed the matter in two parts, corresponding to the two legal issues identified.

  1. On whether the termination amounted to dismissal with the consequences envisaged by Article 311(2), the Court explicitly followed the Supreme Court's decision in Parshotam Lai Dhingra v. Union of India (AIR 1958 SC 36). The test applied (as in Dhingra) is whether the order of termination carried consequences that would operate as a dismissal (for example debarment from future employment), and for temporary servants it is the consequences that matter rather than the motive. Because this was an application of a Supreme Court decision, the Court concluded that it did not present a new question of constitutional law warranting a certificate; at best it involved further interpretation of Dhingra, which the Court declined to certify.
  2. On the interpretation of Proviso (a) to Article 311(2), the Court had earlier interpreted the Proviso to apply only when a person, while in service, was convicted on a criminal charge — i.e., that the Proviso was concerned with convictions after entry into service. The Court acknowledged that the Proviso does not contain the qualification in express words but read it in by necessary implication. The Court gave textual and practical reasons for this interpretation:
    • Textual indicators: the Proviso refers to "his" conviction and uses the phrase "has led", which the Court considered to indicate a conviction of a person who is a member of the service (i.e., after entry into service).
    • Practical/due process considerations: if the Proviso were held to cover convictions prior to entry into service, disputes would focus on whether the appointing authority had knowledge of the prior conviction or whether there had been suppression by the appointee. That would necessitate framing charges and giving opportunity to the appointee to meet allegations of suppression — matters better dealt with under Article 311(2) rather than by applying the Proviso.
    • Condonation: where the appointing authority knew of a prior conviction and condoned it at appointment (as in the present case), the Court considered that Proviso (a) should not apply.
    The Court acknowledged the contrary decision of the Assam High Court (Jagadindra Nath Gupta), which treats Proviso (a) as applicable to convictions both before and after appointment, and recognized that this conflicting authority materially affected whether the matter should go to the Supreme Court.

The Court also noted and rejected the respondent's submission about hardship and delay as irrelevant to the statutory constitutional test under Article 132(1); the duty to issue a certificate arises where a substantial constitutional question is involved.

Holding and Implications

Holding:
The Court concluded as follows:

  • No certificate will be granted on the first question (whether the termination amounted to a dismissal attracting Article 311(2) protection), because that issue was decided following the Supreme Court's decision in Dhingra and does not present a novel question of constitutional law deserving a certificate.
  • A certificate will issue on the second question involving the interpretation of Proviso (a) to Article 311(2) of the Constitution — specifically, whether the Proviso applies only to convictions occurring after appointment or also to convictions prior to appointment. The Court held that this is a substantial question of constitutional law of general importance; conflicting authority (the Assam High Court decision) exists and an authoritative pronouncement from the Supreme Court is therefore required. The Court accordingly allowed the application for a certificate.

Implications:

  • Direct effect on the parties: the application for a certificate was allowed and a certificate will issue permitting an appeal to the Supreme Court on the interpretation of Proviso (a) to Article 311(2). This means the constitutional question will be argued before the Supreme Court.
  • The Court noted that the respondent's concerns about hardship and delay were not factors to be weighed under Article 132(1) when deciding whether to grant a certificate; the issuance of the certificate proceeds despite concerns that it may delay reinstatement. The opinion does not set a new binding precedent itself on the disputed point; instead it forwards the disputed constitutional question to the Supreme Court for authoritative determination.

Disposition: Application allowed.

Show full summary ...

    Union Territory Of Tripura v. Gopal Chandra Datta Choudhury

    This is an application by the Chief Commissioner of Tripura and the Union Territory of Tripura for the issue of a certificate for preferr ing an appeal to the Supreme Court against the order of this Court in Civil Misc. Writ Petition No. 4 of 1059 dated 15-1-60" by which this Court directed a Writ of Certiorari to issue quashing the order of dismissal passed on the respondent, a constable by the Superintendent of Police, Tripura.

    (2) The respondent was a temporary Police constable appointed as such on 18-4-1954 by the Superintendent of Police, Tripura. He had been appointed once before as a constable on 22-5-51 and was dismissed from service on 9-11-51 on the ground of conduct which led to his conviction on a criminal charge after his appointment. But he was re-appointed later by the Superintendent of Police, Tripura on 18-4-1954 fully knowing of his earlier conviction in the criminal Court and his dismissal from service on that ground.

    It may be mentioned here that the condonation of his earlier conviction and dismissal and his re-appointment were due to the reason that he happen ed to be one of the best foot-bailers in Tripura. On 6-1-58 he was discharged from the service by the Superintendent of Police under Rule 5, Central Civil Services (Temporary Services) Rules, 1949. But it turned out from his subsequent appeals to the Chief Commissioner that he was not merely discharged, but actually dismissed from service because he hap pened to be an ex-convict in a case of theft and "That the Tripura Administration had decided that he could not be re-employed in any of the departments of the Government.

    (3) In the Writ petition I held that the termina tion of service of this temporary servant under such circumstances amounted to a dismissal as a punish ment visiting him with the evil consequence of debarment from future employment and I followed the well-known Dhingra's case (Parshotam Lai Dhingra v. Union of India) reported in AIR 1958 SC 36 in holding that under such circumstances the respondent was entitled to the protection afforded under Art. 311(2) of the Constitution.

    (4) It was then pointed out that even if he was entitled to the protection under Art. 311(2), proviso (a) of the said Article was an exception to the applica tion of Article 311(2) and that as the respondent was dismissed from service on the ground of conduct which has led to his conviction on a criminal charge, Article 311(2) will not apply in his case. But my interpretation of Proviso (a) was that it would apply only when a person while in service was convicted on a criminal charge and not in a case where the appointing authority knew full well of his conviction prior to the appointment and did not then consider it a bar to his appointment and that the said prior conviction should not be allowed to be kept in re serve and to be used against him during his entire subsequent career as a public servant.

    (5) Now it is argued for the petitioners that the above two findings of mine are substantial ques tions of law relating to the interpretation of Art. 311 (2) of the Constitution and that I should Issue a certificate for appeal to the Supreme Court.

    (6) With regard to the first question decided by me as to whether the termination of the respon dent's temporary service amounted to dismissal from service as a punishment visiting the respondent with the evil consequence of debarment from future em ployment, I do not think that 'a question of law involving an interpretation of the Constitution arises for decision of the Supreme Court. I have only followed the decision of the Supreme Court in Dhingra's case, AIR 1958 SC 36. Thus it would at best involve a further interpretation of that decision. I do not think that for that purpose a certificate can be granted.

    (7) But it was pointed out that a different in terpretation of that decision was given by the Bom bay High Court in their decision Kamalakar Shankar Kate v. Principal, Training College for Men, AIR 1960 Bom 9 which I have referred to in my judg ment. Actually that decision of the Bombay High Court has not given any different interpretation of that decision. The Bombay case also held that where termination of service is accompanied by punish ment and will foe an obstacle in the way of his gett ing other employment, it will amount to a dismissal.

    Thus that aspect of the Supreme Court decision in Dhingra's case, AIR 1958 SC 36 did not have to-be interpreted by the Bombay High Court. The test which I applied following Dhingra's case, AIR 1958 SC 36 was that in the case of a temporary servant it was not the motive of the authority in terminating his service but the consequences which follow from the order of termination which mattered. I do not think, therefore, that a further interpretation of Dhingra's case, AIR 1958 SC 36 by the Supreme Court is called for and I do not consider that a certi ficate should be issued for that purpose.

    (8) The second question decided by me regard ing Proviso (a) of Article 311(2) no doubt involves an interpretation of the said Proviso. I held that the Proviso would apply only in respect of a con viction on a criminal charge after the entry of a public servant in service. It was pointed out that the Proviso as it stood did not contain any such qualification. It has to be conceded that such a qualification is not there in actual words.

    But I interpreted it to mean so, because the dis missal or termination of service can take place only after an appointment into such service and hence it was the conduct of a person as a public servant after his appointment which can be taken into account for dismissing or removing him from service and hence even though the words were not actually in the Proviso they have to be read into the Proviso by necessary implication. No decisions were brought to my notice for the petitioners or for the respon dent at the time.

    (9) But in the course of the arguments on this petition Mr. M. R. Choudhury for the respondent very correctly brought to my notice the decision of the Assam High Court in Jagadindra Nath Gupta v. Inspector General of Assam Rifles reported in AIR 1959 Assam 134. This decision had already been published when I heard the main Writ petition, but neither party then brought it to my notice. It has been held in the said decision that the ground of conduct mentioned in Proviso (a) to Article 311(2) would refer to a conviction on a criminal charge both before and after the appointment. Thus the interpretation of the Assam High Court would on the face of it run counter to my interpretation of Proviso (a).

    (10) The facts in the two cases were consider ably different. In the Assam case the public servant concerned who was convicted before his appointment did not bring the fact of his conviction to the notice of the Government and the Government were quite unaware of such conviction at the time of such appointment. But in the case before me the Govern ment knew fully well about the said conviction, had once before dismissed him on the ground of con duct which led to such conviction and again with -the full knowledge of this fact still chose to appoint him. The question of condonation by the Govern ment of the conduct which led to his conviction would also arise in the case before me.

    (11) Even after studying the Assam decision, I am still of the view that Proviso (a) would relate only to conduct which led to conviction on a cri minal charge after entry into service. It is not neces sary to discuss the matter fully, but only to indicate it. There are indications in the Proviso itself which lead to such a conclusion. Article 311 deals with the case of a person who is a member of the Civil service and the Proviso also deals with the case of such a person.

    Where the Proviso, therefore, refers to "his" conviction it means the conviction of such a person who is a member of the service. It would mean from this that the conviction must be after he became a member of the service and not before. I must also lay emphasis on the words "has led" in the Proviso. The use of the word "has" again would point to the fact that the conviction must be during his employ ment and not before.

    (12) If we give the other interpretation it will lead to difficulties. In the case of a conviction prior to his entry into Government service the question will naturally arise whether the fact of conviction had been brought to the notice of the appointing authority at the time of the appointment. The ques tion in such a case would really amount to the fact of knowledge of the Government of such conviction at the time of the appointment or of suppression of the fact by the appointee and not the fact of actual conviction.

    The Government may say that the fact was sup pressed and the appointee may say that the appoint ing authority had knowledge and condoned it. Hence an opportunity will have to be given to the person concerned to show that there was no suppression. This can be done only by framing a charge against him for such suppression and by giving him an op portunity to meet it.

    In other words, Article 311(2) ought to apply in such cases and the Proviso cannot apply because the question concerned will not be the conviction, but the suppression of such conviction at the time of such appointment. If the appointing authority has condoned the ground of conduct which had led to his conviction at the time of the appointment, I con sider that Proviso (a) will not apply.

    (13) Thus a substantial question of law involv ing the interpretation of Proviso (a) to Article 311(2) of the Constitution arises for the decision of the Supreme Court. It is a question which is of general importance and it is likely to crop up often. An authoritative pronouncement is therefore required. A certificate will therefore issue.

    (14) It was pointed out for the respondent that as a poor dismissed class IV employee of the Govern ment he has been starving, that the issue of a certi ficate would further delay his reinstatement and that he would not be in a position to contest the appeal before the Supreme Court. But these are not considerations to be taken into account by me un der Art. 132 (1) of the Constitution. It is my duty to issue such a certificate where a substantial ques tion of law as to the interpretation of the Constitu tion is involved.

    Application allowed,

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    Comments

    Union Territory Of Tripura v. Gopal Chandra Datta Choudhury
    (Aug 24, 1960)