- Bookmark
- Share
- CaseIQ
Jaganandan v. State Of Uttar Pradesh And Others Opposite-Parties.
Judicial Opinion Summary — Satish Chandra, J.
Factual and Procedural Background
This opinion arises from references made to a Full Bench and a larger Bench concerning the legal effect of termination of service of permanent employees of District Boards under Rule 3-A of the rules framed under the District Board Act, 1922. A Division Bench, doubting the correctness of this Court's decision in S.C. Misra v. State of U.P. (1971 A.L.J. 1027), referred the question whether termination of service under Rule 3-A(iv) without intending to inflict punishment is nonetheless an order of punishment requiring compliance with procedural rules printed on page 193 of the Manual. In Second Appeal No. 3429 of 1966 a single Judge referred the question whether the Division Bench decision in Special Appeal No. 663 of 1970 correctly states the law in view of the Supreme Court's decision in S.R. Tewari v. District Board, Agra (A.I.R. 1964 S.C. 1680).
In the underlying matters that gave rise to these references, the services of permanent employees were terminated by a simple notice of termination issued by the District Board under Rule 3-A.
Legal Issues Presented
- “Whether termination of service under Rule 3-A(iv) without intending to inflict any punishment would none the less per se be an order of punishment requiring compliance with rules printed on page 193 of the Manual?”
- “Whether the decision of Division Bench in Special Appeal No. 663 of 1970 lays down correct law in view of the decision of the Supreme Court in the case of S.R. Tewari v. District Board, Agra (A.I.R. 1964 S.C. 1680)?”
Arguments of the Parties
Employees' Arguments (as recorded in the opinion)
- Counsel for the employees relied on the Supreme Court's decision in Moti Ram Deka v. North East Frontier Railway to contend that termination of a permanent servant's services under rules analogous to Rule 3-A (for railways, Rule 148(3) or 149(3)) amounts to removal or dismissal within the meaning of Article 311 of the Constitution, because a permanent post (as defined by the relevant rules) gives the servant a right to hold the post and termination otherwise than by superannuation or compulsory retirement is a penalty.
- It was urged that the regulation regarding retention and retirement (which prevents ordinarily retaining a servant beyond 60 years, and in no case beyond 65 years) confers a right upon District Board employees to remain in service till the age of superannuation, and hence premature termination would entail forfeiture of that right.
Note: The opinion does not set out detailed contrary arguments advanced on behalf of the District Board or other parties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| S.R. Tewari v. District Board, Agra, A.I.R. 1964 S.C. 1680 | The Supreme Court held that Rule 3-A (procedure for determination of service on notice) is a valid rule made under Sec. 84(d) read with Sec. 172(2) and that rules prescribing procedure for dismissal/removal as punishment (notification dated 25th March, 1946) operate in a different field. It held that “dismissal” in the statute and the notification connotes orders of punishment, and that determination simpliciter under Rule 3-A is distinct from punitive dismissal and hence both sets of rules can coexist. | The Court treated S.R. Tewari as authoritative on the point that Rule 3-A is valid for non-punitive termination and that the 1946 notification governs punitive dismissal; it relied on S.R. Tewari to conclude that Rule 3-A termination without intent to punish is not per se an order of punishment, and to distinguish and disapprove the reasoning in S.C. Misra that had applied a different precedent. |
| Moti Ram Deka v. North East Frontier Railway (Supreme Court; reported date unspecified in text) | The majority in that case held that, for railway servants, definitions in the Establishment Code (e.g., Fundamental Rules defining “lien” and “permanent post”) give a permanent servant a substantive title to a post such that termination of service other than by superannuation or compulsory retirement amounts to removal/dismissal (a penalty) and therefore contravenes Article 311(2), rendering the impugned railway rule invalid. | The Court noted the employees' reliance on this authority but expressly distinguished it: Moti Ram Deka rests on the constitutional protection under Article 311(2) enjoyed by government servants and the particular definitions (lien, permanent post) in the railway rules. Because District Board servants do not enjoy an overriding guarantee like Article 311(2), Moti Ram Deka is not applicative to District Board servants; accordingly its reasoning cannot invalidate Rule 3-A for District Board servants. |
| S.C. Misra v. State of U.P., 1971 A.L.J. 1027 (Division Bench) | The Division Bench had applied Moti Ram Deka to a case of termination of a District Board employee under Rule 3-A, holding that the rule prescribing age of superannuation gave a right to hold the post until that age and that termination before that age would per se be punishment. | The present Court found that decision incorrect. It held that S.C. Misra misapplied Moti Ram Deka to District Board servants without considering S.R. Tewari, and therefore the decision in Special Appeal No. 663 of 1970 does not lay down the correct law in view of S.R. Tewari. |
Court's Reasoning and Analysis
The Court proceeded in structured steps grounded in the statutory framework and the two sets of rules before it:
- Statutory and regulatory framework: The District Board Act, 1922 vests administrative authority in the Board (Sec. 82) to appoint, punish, dismiss, etc., but Sec. 84 subjects those powers to rules imposed under the Act (notably clauses (b) and (d)), and Sec. 172 confers rule-making power on the State Government. Under that delegated rule-making power the State Government framed Chapter III rules for officers and servants, including Rule 3-A, and also issued a separate rule (notification of 25 March 1946) prescribing procedural safeguards for dismissal/removal/reduction.
- Content of Rule 3-A and the 1946 notification: Rule 3-A prescribes the conditions under which a permanent servant's office may determine (resignation, employee's notice, payment in lieu, or notice/payment by the authority). The 1946 notification requires a reasonable opportunity to show cause, recording of written defence, and a written order specifying charge, defence and reasons in cases of dismissal/removal/reduction.
- Precedent from S.R. Tewari: The Supreme Court held Rule 3-A valid and that the 1946 notification deals with orders of punishment (dismissal/removal), whereas Rule 3-A governs non-punitive determinations on notice. Expressions “dismiss” or “dismissal” in relevant statutory provisions and the notification connote orders of punishment. Therefore, Rule 3-A may be invoked to determine services simpliciter (i.e., without punitive intent) while punitive dismissal must conform to the notification procedure.
- Analysis of Moti Ram Deka and its applicability: The employees relied on Moti Ram Deka, where the Supreme Court held that certain railway rules terminated a permanent servant's substantive right to hold a post and thus amounted to removal/dismissal contrary to Article 311(2). The Court here analyzed Moti Ram Deka and observed that its invalidation of the impugned railway rule rested on the constitutional protection under Article 311(2) and particular definitions (lien, permanent post) in railway rules.
- Distinguishing Moti Ram Deka for District Board servants: Because District Board servants do not enjoy an overriding constitutional guarantee like Article 311(2) (which applied to government servants in Moti Ram Deka), the Court concluded that Moti Ram Deka is not applicable to District Board employees. Therefore Rule 3-A cannot be struck down on the same basis as in Moti Ram Deka.
- Harmonious construction of coexisting rules: The Court reasoned that the various rules (Rule 3-A, the rule on retirement/retention, and the 1946 notification) must be read harmoniously and operate in their respective fields. The retirement/retention rule (age limits) regulates retention and extension procedures but does not by itself create an absolute, overriding right to hold office that nullifies Rule 3-A. If the retirement rule were read to confer an absolute right, Rule 3-A would be nullified; the Court rejected such an interpretation and held that services may be determined under Rule 3-A, dismissed or removed under the punitive rule when applicable, and that retention beyond prescribed age is separately regulated.
- Conclusion from the analysis: Applying S.R. Tewari and the harmonious reading of the rules, the Court concluded that termination under Rule 3-A, when not intended as punishment, is not per se an order of punishment requiring the procedural safeguards of the 1946 notification. It therefore answered the referred questions accordingly and disapproved the Division Bench decision in S.C. Misra to the extent it applied Moti Ram Deka to District Board servants.
Holding and Implications
Holding: The Court answered the referred questions in the negative — termination of service under Rule 3-A(iv) without intending to inflict punishment is not per se an order of punishment requiring compliance with the procedural rules (the 1946 notification) governing dismissal or removal. The Court also held that the decision in Special Appeal No. 663 of 1970 (S.C. Misra) does not lay down the correct law in view of the Supreme Court's decision in S.R. Tewari.
Implications:
- Direct effect on the parties: Terminations effected by District Boards under Rule 3-A, where not intended as punitive dismissals, are valid under the statutory/regulatory scheme described and do not automatically engage the procedural safeguards applicable to punitive dismissals prescribed in the 1946 notification.
- On precedent and future cases: The Court distinguished the Supreme Court decision in Moti Ram Deka (which invalidated certain railway rules on the basis of constitutional protection under Article 311(2)) and reaffirmed the applicability of S.R. Tewari to District Board servants. The Division Bench decision in S.C. Misra that applied Moti Ram Deka to District Board servants was held not to state the law correctly in view of S.R. Tewari.
- Administrative consequence recorded in the opinion: The papers are to be laid before the Bench concerned with this opinion and answer (i.e., the matter is to be placed before the Bench that made the reference in light of this opinion).
Satish Chandra, J.:— In this ground of Special Appeals a Division Bench being of the opinion that the decision of this Court in S.C Misra v. State of U.P . 1971 A.L.J 1027. requires reconsideration, has referred the following question for decision by a Full Bench:
“Whether termination of service under Rule 3-A(iv) without intending to inflict any punishment would none the less perse be an order of punishment requiring compliance with rules printed on page 193 of the Manual?”
2. In Second Appeal No. 3429 of 1966 a learned single Judge has referred the following question to a larger Bench:
“Whether the decision of Division Bench in Special Appeal No. 663 of 1970 lays down correct law in view of the decision of the Supreme Court in the case of S.R Tewari v. District Board, Agra . A.I.R 1964 S.C 1680.?”
3. The reference to the special appeal decision is to the case of S.C Misra mentioned above.
4. In all these cases the services of a permanent employee have been terminated by a simple notice of termination given by the District Board under Rule 3-A of the rules relating to the servants of the Board.
5. The question is whether under the District Board Act, 1922, the Board is invested with the power to determine the employment of a permanent servant of the Board otherwise than by way of dismissal or punishment.
6. Sec. 82 of the Act confers administrative authority upon the President and the Secretary in respect of several matter relating to the servants of the Board sped fied therein including power to appoint, punish, dismiss, etc., the servants of the Board. Sec. 84 makes the provisions of Sec. 72, 73, 80 and 82 subject to the provisions of:
“(a) ……………………..
(b) any rule imposing any conditions on the appointment of persons to offices or to any particular office requiring professional skill and on the punishment or dismissal of persons so appointed and on their liability to service under the orders of any Government on the occurrence of any emergency.
(c) ………………………
(d) any other relating to servants of a board.”
7. Sec. 172 of the Act confers rule-making authority upon the State Government. By clause (2) the State Government may make rules consistent with the Act:—
“(2) providing for any matter for which power to make provision is conferred, expressly or by implication, on the State Government by this or any other enactment in force at the commencement of this Act; and
(b) Generally for the guidance of a board or any Committee of a board or any Government Officer in any matter connected with the carrying out of the provisions of this Act.”
8. In exercise of the rule-making power the State Government has framed a set of rules. In Chapter III of the rules dealing with officers and servants of the Board there occurs rule 3-A which provides:—
“The period of office of a permanent servant of the board other than a Government servant in its employ shall not determine until—
(i) his resignation has been accepted in writing by the authority competent to appoint his successor, or he ceases to be in service by the operation of the rules regulating the retirement of district boards servants, or
(ii) he has given such authority at least three months' notice where his pay exceeds Rs. 15 and in other cases at least one month's notice, or
(iii) he has paid or assigned to the whether his pay exceeds Rs. 15 and in other cases a sum equal to one month's pay.
(iv) he has been given by the authority competent to appoint his successor not less than three months' notice or a sum equal to three months' pay in lieu of notice where his pay exceeds Rs. 15/- and in other cases not less than one months' notice or a sum equal to one month's pay in lieu of notice.”
9. The other material rule was framed by the Government by the notification dated 25th March, 1946. It provided:—
“No officer or servant shall be dismissed, removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him. Any written defence tendered shall be recorded and a written order shall be passed thereon. Every order of dismissal, removal or reduction shall be in writing and shall specify the charge brought, the defence and the reasons for the order.”
10. The validity of Rule 3-A was considered by the Supreme Court in S.R Tewari v. District Board, Agra. After considering the relevant and material provisions mentioned above the Supreme Court held that the power of the Board to appoint or punish the servants of the Board is subject, among others, to the rules imposing conditions on the appointment of persons to the offices and on the punishment or dismissal of persons who were appointed as well as to rules relating to servants of the Board mentioned in clauses (b) and (d) of Sec. 84 read with Sec. 172(2). It was held that the rule providing for the procedure for termination of employment of servants of the Board is a rule relating to servants of the Board and may properly be made under Sec. 84(d) read with Sec. 172(2). Power to appointment, and a power to determine may, in the absence of restrictions express or implied, be exercised subject to the conditions prescribed in that behalf by the authority competent to appointment. The power to found in Sec. 82 and the method of its exercise is prescribed by the rules referred to in Sec. 84. The rules deal with the conditions under which an officer or servant may be dismissed (the dismissal being by way of punishment) and also under which determination of employment may take place.
11. The Supreme Court further held that the expressions “dismiss” or “dismissal” occurring in Secs. 82 and 84 as well as in the notification dated 25th March, 1946, have the same connotation. They refer to orders of punishment. It was held that an order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under clause (d) of Sec. 84 to be exercised consistently with Rule 3-A and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the notification dated March 25, 1946 under Sec. 84(b) and (d).
12. According to this decision of the Supreme Court, Rule 3-A is valid and can be utilised by the competent authority when the services of a permanent employee are to be determined simpliciter without intending to inflict any punishment. Rule 3-A as well as the rule framed under the notification dated March 25, 1946 operate in different fields, the latter covering a case of an order of punishment by way of dismissal or removal only.
13. Learned counsel appearing for the employees invited our attention to the Supreme Court's decision in Moti Ram Deka v. North East Frontier Railway . ???. In that case the question was whether the termination of services of a permanent railway servant under Rule 148(3) or 149(3) of the Railway Establishment Code, Vol. 1, amounts to his removal or dismissal under Article 311 of the Constitution. Gajendragadkar, J. speaking for the majority stressed that fundamental Rule 9(14) occurring in the Railway Establishment Code, Vol. II defines “lien” as meaning the title of a railway servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. The expression “permanent post” was defined in Fundamental Rule 9(23) to mean a post carrying a definite rate of pay sanctioned without limit of time. It was observed that as a result of the relevant definitions, a permanent post carried a definite rate of pay without a limit of time, and a servant who substantively holds a permanent post has a title to hold the post to which he is substantively appointed and that in terms means that a permanent servant has a right to hold the post until he reaches die age of superannuation or until he is compulsorily retired under the relevant rule. Emphasis was laid upon the rule giving title to substantively hold a permanent post in the shape of a lien. It will be seen that the Supreme Court did not hold that the right flows from the prescription of an age of superannuation or from the provision of compulsory retirement after reaching a particular age. In paragraph 19 it was observed:—
“It is in the light of this position that we must now proceed to examine the question as to whether the termination of the permanent servant's services either under Rule 148(3) or Rule 149(3) amounts to his removal or not.”
14. In paragraph 26 it was observed:—
“A person who substantively holds a permanent post has a right to continue in service subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement ??? so, if by Rule 148(3) or Rule 149(3) such a termination is brought about, the Rule clearly contravenes Article, 311(2) and must be held to be invalid.”
15. In paragraph 32 it was observed that if the termination does not amount to removal then of course Article 311(2) would be inapplicable and the challenge to the validity of the impugned rules would fail. These observations show that the rule was held invalid because it contravened the guarantee secured by a higher law namely Article 311(2) of the Constitution. The rules framed under a statutory authority cannot override the effect of the constitutional guarantee. The impugned rules were held to violate Article 311(2). They were not held invalid on the ground that they were in conflict with the provisions for dismissal or removal provided for in the later part of rules 148(3) and 149(3). If Article 311(2) had not been there, Rule 148(3) could not have been held invalid on the ground that a termination thereunder was tantamount to removal within meaning of the latter part of the same rule.
16. In this situation S.R Tewari's case gains prominence. In that case it was held that both Rule 3-A providing for determination on notice and the rule framed under notification dated 25th March, 1946, laying down the procedure for dismissal or removal as a measure of punishment co-exist. Reading the two decisions together, it seems clear to us that Rule 3-A could not be held invalid on the ground that determination of service under it would be perse removal or dismissal within meaning of the rule framed under the notification dated 25th March, 1946. In regard to servants of the District Board there is no overriding guarantee like Article 311(2).
17. S.R Tewari's case was decided on 15th April, 1963 by a Bench consisting of B.p Sinha, C.J, J.C Shah and N. Rajagopala Ayyangar, JJ. The Unanimous judgment of the Court was delivered by Shah, J. Moti Ram Deka's case was decided nearly 8 months later on 15th December ??? Shah and Rajagopala Ayyanagar, JJ. were also members. In none of the judgments delivered in Moti Ram Deka's case was S.R Tewari's case considered or even referred to. Even Shah, J. who gave a dissenting opinion in Moti Ram Deka's case did not refer to S.R Tewari's decision. Evidently, the decision in S.R Tewari's case was not considered material or relevant because District Board employees do not have gurantee as the Government servants have under Article 311(2) of the Constitution. Exhypothesi, Moti Ram Deka's case is not applicable to district Board servants who are to be governed by S.R Tewari's case.
18. It was urged that the regulation regarding retention and retirement of District Board employees confers a right upon the employees to remain in service till the age of superannuation. The regulation which is in law a rule framed by the State Government under Sec. 172 of the District Boards Act, provides:—
“No officer or servant of the Board shall ordinarily be retained in the service of the Board, after he attains the age of 60 years, and in no case after he attains the age of 65 years.”
19. This rule restricts the right of the Board to retain a servant of the Board or officer after a certain age. It regulates the procedure for granting extension. The various rules framed relating to the servants or officers of the District Board nowhere speak of an officer having a lien on a post or office. It will be remembered that in Moti Ram Deka's case the Supreme Court spelt out a right to retain the post from he definition of the term “lien” given in the rules. The right or title was not deduced from the prescription of the age of superannuation.
20. Moreover, the various rules framed by the State Government have the same operative efficacy. According to S. Jr. Tewari's case Rule 3-A was valid even though there was a rule laying down the procedure for dismissal or removal. Rule 3-A was not held as being subject to the ??? Similarly, the rule relating to retention and retirement will have to be read harmoniously with other rules including Rule 3-A. If the rule relating to retirement is held to confer a right to hold the post till the age of superannuation, Rule 3-A would stand completely nullified. There is nothing in any part of the rule regarding retention and retirement giving it an overriding effect over Rule 3-A. In our opinion, all these rules co-exist and apply in their respective fields. The rule regarding retention and retirement does not confer an absolute right upon an officer or servant of the Board to the post held by him. The right to continue in service is subject to the operation of all these rules. His services can be determined under Rule 3-A, he may be dismissed or removed under the rule relating thereto and that he cannot ordinarily be retained in service after he attains the prescribed age.
21. In S.C Misra v. State of U.P a Division Bench applied the decision in Moti Ram Deka's case to a case of turmination of a District Board Employee under Rule 3-A. The Bench extensively applied the observations of Gajendragadkar, J. in Deka's case. It did not, while discussing this question, even refer to S.R Tewari's case. It held that the rule prescribing the age of superannuation for District Board employees gives the right to hold the post till that age and termination of his employment before he reaches that age would perse be punishment as it entails the fore feiture of his employment. In our opinion, this decision does not lay down the law correctly.
22. We would answer the question referred to us in the special appeals in the negative, and the question referred in the second appeal by saying that the decision in Special Appeal No. 663 of 1970 does not lay down the law correctly in view of the decision of the Supreme Court in S.R Tewari's case.
23. Let the papers be laid before the Bench concerned with this opinion and answer.
Alert