GANGADHARA KURUP v. Dy. ACCOUNTANT GENERAL — 1976 DIGILAW 48 (KER)

Judgment :- 1. The petitioners, five in number, were employed in the office of the Accountant-General, Trivandrum. They were all temporary employees. Though they had completed 3 years of service, none of them had been made quasi-permanent and they continued as temporary employees. 2. In April 1972 the General Secretary of the N.G O. Association of the Accountant-General's office was dismissed from service under Art.311 (2) (c) of the Constitution of India under the extra-ordinary powers of the President. This led to an agitation among the employees of the Accountant-General's office. The N.G.O. Association had called for an agitation for compelling the Government to re-instate the dismissed General Secretary. The agitation led to the suspension of 13 members of the association. On 6173, three out of the 13 suspended employees were served with notices of show cause as to why they should not be dismissed from service. In protest against these actions the association called for 'pendown' strike. The petitioners allege that the entire members of the Association responded to the call and participated in the strike. There were demonstrations and other forms of agitation for the reinstatement of the dismissed and suspended employees. 3. On 20121972 the Dy Accountant-General (Administration) 1st respondent put up a warning notice on the notice board warning the employees that those who are not applying themselves seriously to their work and absenting themselves from the sections without proper permission will be liable to strict disciplinary action, which may amount to termination of services. It was also pointed out that there will be no use complaining about victimisation later after the disciplinary action and time is being given for every one to improve. Ext. P1 is the copy of the warning notice. On 51 73 a circular was issued by the 1st respondent threatening severe disciplinary action against every member of the staff if they take part in meetings and demonstrations. Ex-P2 is the copy of the circular. Then another circular was issued by the Account Officer, Administration on 91 73 threatening action against those who take part in the pendown strike. 4. Petitioners allege that they are active members of the N.G.O. Association and they participated in the meetings, demonstrations and in the pendown strike called by the Association along with two thousand other employees in the office. 4. Petitioners allege that they are active members of the N.G.O. Association and they participated in the meetings, demonstrations and in the pendown strike called by the Association along with two thousand other employees in the office. On 221 73 the 1st respondent issued orders purporting to be under sub-rule (1) of R.5 of the Central Civil Service (Temporary Service) Rules, 1965 (shortly stated the Rules offering to pay one month's pay and allowances in lieu of notice terminating forthwith the services of the petitioners. Exs. P4, P5, P6, P7 and P8 arc the copies of the said orders. 5. According to the petitioners, subsequently the dispute which led to the termination of their services was settled at the intervention of certain members of the Parliament belonging to the Congress Party and some terms of settlement were arrived at on 24 21973. Ex-P9 is the true copy of the terms of settlement. As per the same the staff who were transferred to the 'Out Audit Department' during January 1973 would be brought back to the headquarters, that the salary during work-to-rule period would be paid on certain conditions, that favourable recommendation would be made to the Comptroller and Auditor-General and the Government of India for relaxations of the rule regarding Pendown strike pay on certain condition, that the 20 suspended employees would be reinstated within one month and that representations from the petitioners whose services were terminated under R.5 would be forwarded to the 2nd respondent with necessary comments. Petitioners accordingly submitted representations to the 2nd respondent through the 1st respondent, wherein they prayed for re-instatement in service in accordance with the spirit of the settlement. Ex-P10 is the copy of the representation which had been filed by the Ist petitioner. Other petitioners had also filed similar representations. However, on 27 61974 the 1st respondent informed the petitioners that the 2nd respondent in exercise of powers vested in him under R.5(2) of the Rules had confirmed the orders of termination. Exs-P11, P12, P13, P14 and P15 are the copy of the memoes so issued to the petitioners. 6. The petitioners have approached this court for quashing Exs-P4 to P8 termination orders as confirmed by the orders of the 2nd respondent Exs-P11 to P15. Exs-P11, P12, P13, P14 and P15 are the copy of the memoes so issued to the petitioners. 6. The petitioners have approached this court for quashing Exs-P4 to P8 termination orders as confirmed by the orders of the 2nd respondent Exs-P11 to P15. The main contention that was urged before me in the matter was that R.5 of the Rules cannot be used to remove a Government servant from service for any misconduct alleged to be committed by them. This rule cannot be used to punish a civil servant. It can be invoked only for administrative convenience and for terminating the services of temporary employees on reduction of establishment or such other bonafide reasons; but that rule cannot be utilised for disciplinary reasons. Petitioners point out that the circumstances detailed in the petition would only lead to the inference that the termination was by way of punishment. The termination orders are. therefore, colourable exercise of the power conferred under R.S. Besides that, in punishing the petitioners by terminating their service without following the provisions of Art.311 of the Constitution of India, the 2nd respondent has acted illegally and without jurisdiction. Art.311 protects not only permanent employees, but also temporary employees. In so far as the procedure laid down in Art.311(2) are not complied with the termination orders are unenforceable, unconstitutional and non-est in law according to the petitioners. It is contended by the petitioners that in terminating their services, while retaining other temporary employees similarly placed and some of them juniors to the petitioners, the 2nd respondent acted in violation of Art.16 of the Constitution. 7. A counter-affidavit has been filed on behalf of respondents 1 and 2 by the Dy. Accountant-General (Administration) 1st respondent. He refers to R.3 of the Rules, under which a government servant should be deemed to be in quasi-permanent service only if he has been in continuous temporary service for more than 3 years, and if the appointing authority being satisfied, having regard to the quality of his work, conduct and character as to his suitability for employment in a quasi-permanent capacity under the government has made a declaration to this effect. In the case of the petitioners no such declaration has been made and that they have not, therefore, attained the status of quasi-permanency. In the case of the petitioners no such declaration has been made and that they have not, therefore, attained the status of quasi-permanency. The first respondent states that the warnings and circulars issued during the agitation conducted by the N. G. O. Association had no connection with the termination of the services of the petitioners. The termination was not done as a punitive measure for violating the instructions in the general warning and circulars concerned. According to the petitioners as many as 300 temporary employees participated in the agitation activities and service of all of them were not terminated under R.5(1). From this, it would be clear that the termination of the petitioners from service was not based on their participation in the strike. So contends the first respondent. 8. The counter-affidavit proceeds to state that there was nothing in the terms of agreement from which it would follow that the petitioners would be reinstated in service. The averments of the petitioners that their services were terminated by way of punishment for their participation in the agitational activities is submitted to be incorrect and is totally denied in the counter. They had been appointed in a purely temporary capacity and they were specifically informed at the time of appointment itself that they would be governed by the Rules and that their appointment would be terminated at any time according to the exigencies of service. The violation of Art.14 or 16 is also denied as the termination of services was founded on the right flowing from the service rules. It is contended that termination is not punishment per se and hence no evil consequences can be said to flow from the orders of termination. 9. In regard to the question whether there has been a violation of Art.16 of the Constitution of India as the termination of the petitioners' services were without giving reasons and that persons who are also temporary and similarly situated have been allowed to continue in service, the petitioners rely on the decision of a Division Bench of this court in Commodore, Cochin v. Rajan (1970 KLJ 164). It would appear that in this matter by special leave appeal has been filed before the Supreme Court and the matter is pending. It would appear that in this matter by special leave appeal has been filed before the Supreme Court and the matter is pending. Though, no doubt I am bound by the decision I do not think I need go into that question as such in view of the fact that according to me the termination of the services of the petitioners is clearly violative of Art.311 of the Constitution, I will discuss that aspect in detail. It is now well settled that Art.311 applies to temporary servant as well. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art.311 of the Constitution. The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. If it was by way of punishment on the above basis then certainly An. 311 would be attracted. The test for attracting Art.311 (2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee see in this connection Champaklal Chimanlal Shah v. Union of India AIR 1964 SC 1854. 10. It might, however, be noted that for the applicability of Art.311 of the Constitution it is not necessary that there should be express words of stigma attributed to the conduct of the government servant in the impugned order. 10. It might, however, be noted that for the applicability of Art.311 of the Constitution it is not necessary that there should be express words of stigma attributed to the conduct of the government servant in the impugned order. As the Supreme Court pointed out in State of Bihar v. Mishra (AIR 1971 SC 1011), there is no rigid principle that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred form looking at all the attendant circumstances to discover whether the order had been made by way of punishment. As the court further points out, the form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. 11. In considering the question whether misconduct is a mere motive or is the very foundation of the order, the following decision of the Delhi High Court in Samar Singh v. Comptroller & Auditor General of India (1976-1 S.L.R 266) is instructive. There pointing out that the reason why motive is irrelevant is that it inheres in the state of mind and is, therefore not discernible. It is further stated that when it is founded on misconduct, it is objective and is manifest. In determining whether the order is punitive or not, it is the substance of the order and not the form that would be decisive. The enquiry need not be confined to the order itself and may extend to all the circumstances to discover its true nature and the court would be entitled to see the entirety of the circumstances preceding or attendant on the impugned order. The enquiry need not be confined to the order itself and may extend to all the circumstances to discover its true nature and the court would be entitled to see the entirety of the circumstances preceding or attendant on the impugned order. Whether the enquiry was held before the order or not may be material but it is not conclusive and would not provide a sure test. The object of the enquiry preceding the order may be indicative of the nature of the order. 12. As to when the misconduct was the foundation and not a mere motive for an action has ceased to present any real difficulty for that which cannot be seen, could not be the foundation, while that which can be seen and has an objective existence, ceases to be a mere motive. It is said that the motive is that which merely induces an action but is not the pedestal on which the action stands. The pedestal on which the action stands is the foundation of it. The foundation can be seen and felt; motive can merely be imagined. Motive becomes foundation when it leaves the mental abode of its author and gets objective existence. There the learned judge quotes from the decision of Ray, C. J. and Krishna Iyer, J. in the decision of the Supreme Court in Shamsher Singh v. State (AIR. 1974 SC. 2192). Ray, C. J. has pointed out therein that: "the reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. On the other hand, if termination is founded on misconduct it is objective and is manifest." Krishna Iyer, J., in that decision has quoted the following observations of Dr. Tripathi in his "Spotlights on Constitutional Interpretation": "As already examined, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Tripathi in his "Spotlights on Constitutional Interpretation": "As already examined, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Failure to appreciate this relationship between motive (the real, but unrevealed object) and form (the apparent, or officially revealed object) in the present context bad led to an unreal interplay of words and phrases wherein symbol like 'motive', substance', 'form', or 'direct' parade in different combinations without communicating precise situations or entitles in the word of facts." 13. When we consider this case on the basis of the decisions cited supra, there cannot be any doubt that it is the taking part of the petitioners in the demonstration and strike organised by the N.G.O. Association that has formed the foundation for the termination of their services. The orders terminating the services do not state the reasons. When we look into the earlier warning notices and circulars issued and the subsequent settlement arrived at, it is impossible but to come to the conclusion that it is really the conduct of the petitioners during the period of strike that has resulted in the termination of their services Admittedly, no enquiry had been conducted here and the procedure prescribed in Art.311 not followed. Therefore, I have to hold that the orders of termination of the petitioners from service are illegal and void. I direct that they should be immediately re-instated in service with all consequential benefits. The O.P. is disposed of as above; but 1 make no order as to costs. Allowed.