Parshotam Lal Dhingra vs Union Of India on 1 November, 1957

    PETITIONER:

PARSHOTAM LAL DHINGRA

 Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT:

01/11/1957

BENCH:

DAS, SUDHI RANJAN (CJ)

BENCH:

DAS, SUDHI RANJAN (CJ)

AIYYAR, T.L. VENKATARAMA

DAS, S.K.

SARKAR, A.K.

BOSE, VIVIAN

CITATION:

 1958 AIR 36 1958 SCR 828

ACT:

       Union Service-Employee's Protection under the Constitution-
Availability-"Dismissed or removed or reduced in rank," Meaning of-Railway
Servant reverted to substantive post in lower class, if reduced in rank-
Constitution of India, Arts. 311, 31O.

HEADNOTE:

       The appellant, Parshotam Lal Dhingra, was appointed to the Indian Railway
Service as a Signaller (Telegraphist) in 1924 and was promoted to the post of
Chief Controller in 1950, both the posts being in class III Service. On July 2,
1951, he was appointed to officiate in class II Service as Asst. Superintendent
Railway Telegraphs. On certain adverse remarks made against him in his
Confidential Report for the year ending March 31, 1953, the General Manager on
June 21. 1953, remarked as follows-"I am disappointed to read these reports. He
should revert as a subordinate till he makes good the short-coming noticed in
this chance of his as an officer. Portions underlined to be communicated to
him." Thereupon the appellant made a representation, but on (I) [1953] S.C.R.
730.

       829

       August 19, 1953, the General Manager issued a notice as follows:-"Shri
Bishambar Nath Chopra, Instructor Railway Training School, Saharnpur, is
transferred to Headquarters office and appointed to officiate in Class II
service as Assistant Signal and Tele-Communication Engineer (Telegraphs) vice
Shri Parshotam Lal Dhingra who on relief reverts to Class III T appointment."
Against this order the appellant moved the High Court under Art. 226 of the
Constitution. The single judge who heard the matter held that the order was
invalid as the provisions of Art. 311(2) of the Constitution had not admittedly
been complied with. The Division Bench on appeal, however, set aside the order
of the Single judge and dismissed the appellant's writ application. The question
for decision was whether the order of the General Manager amounted to a
reduction in rank within the meaning of Art. 311(2) of the Constitution and the
appellant was entitled to a reasonable opportunity of showing cause against the
order.

       Held (per Das, C. J., Venkatarama Aiyar, S. K. Das, A. K. Sarkar jj.,
Vivian Bose J., dissenting) that the order of reversion made against the
petitioner did not amount to a reduction in rank within the meaning of Art.
311(2) Of the Constitution and he was not entitled to the protection of that
Article.

       Like Art. 31O of the Constitution, which makes no distinction between
persons holding permanent or temporary posts in the matter of their tenure being
dependent on the pleasure of the President or the Governor, Art. 311 which is in
the nature of a proviso to Art. 310, also makes no distinction between permanent
and temporary posts and extends its protection equally to all Government
servants holding permanent or temporary posts or officiating in any of them.

       Laxminarayan Chiranjilal Bhargava v. The Union of India, I.L.R. (1955)
Nag. 893; Engineer-in-Chief, Army Head Quarters v. C. A. Gupta Ram, A.I.R.
(1957) Punj. 42 ; State of Punjab v. S. Sukhbans Singh, A.I.R. (1957) Punj. 191
and Chironjilal v. Union of India, A.I.R. (1957) Raj. 81, overruled.

       But the protection of Art. 31I can be available only where dismissal,
removal or reduction in rank is sought to be inflicted by way of punishment and
not otherwise. These were the major punishments evolved by the Service Rules and
Rules of the Railway Code, and well-understood as such, against which protection
was sought to be provided by the Rules. These protections were in due course
incorporated in s. 240 of the Government of India Act, 1935, and reproduced in
Art. 311 of the Constitution, thus qualifying the principle embodied in Art.
310(1).

       Venkataraman v. The Union of India, (1954) S.C.R. 1150, referred to.

       jayanti Prasad v. The State of Uttar Pradesh, A.I.R. (1951) All. 793 ;
Shrinvas Ganesh v. Union of India, A.I.R. (1956) Bom. 455; Jatindra Nath Biszwas
v. R. Gupta, A.I.R. (1954) 830

       Cal. 383 ; Rabindra Nath Das v. The General Manager, Eastern Railway,
(1955) 59 C.W.N. 859 ; jatindra Nath Mukherjee v. The Government of the Union of
India, (1957) 61 C.W.N. 815; Ahmad Sheikh v. Ghulam Hassan, A.I.R. (1957) J. &
K. 11; Ganesh Balkrishna Deshmukh v. The State of Madhya Bharat, A.I.R. (1956)
M.B. 172; D. P. Ragunath v. The State of Coorg, A.I.R. (1957) Mys. 8; M. V.
Vichoray v. The State of Madhya Pradesh, A.I.R. (1952) Nag. 288; Kanta Charan
Srivastava v. Post Master General, A.I.R. (1955) Pat. 381 and Sebastian v.
State, A.I.R. (1955) Tr. CO. 12, approved. One test for determining whether the
termination of service was by way of punishment or otherwise is to ascertain
whether under the Service Rules, but for such termination, the servant has the
right to hold the post. In the three cases of (1) substantive appointment to a
permanent post, (2) temporary appointment for a fixed term and (3) a temporary
appointment which has ripened into a quasi- permanent status under the Temporary
Service Rules, where such a right exists, the servant will be entitled to the
protection of Art. 311. Conversely, where no such right can exist, as in the
case of a probationary or officiating appointment to a permanent or temporary
post or where the service has not ripened into a quasi-permanent status, and
under the general law the service can be terminated on reasonable notice, the
termination of service cannot amount to a punishment and attract the Article.
Broadly speaking, Art. 311(2) can apply to those cases where the Government
servant, if in private employment, could maintain an action for wrongful
dismissal, removal or reduction in rank. So where the Government has, by
contract, express or implied, or under the Rules, the right to terminate the
service at any time, such termination, in the manner provided in the contract or
under the Rules, cannot attract the provisions of Art. 311.

       That does not, however, mean that the termination of service of a servant
who has no right to the post can never be a dismissal or removal by way of
punishment. Although in such a termination the actual motive of the Government
must be wholly irrelevant, where it expressly chooses to penalise the servant
for misconduct, negligence, inefficiency or the like by inflicting on him the
punishment of dismissal, removal or reduction, the requirements of Art. 311 must
be complied with.

       Satish Chander Anand v. The Union of India, (1953) S.C.R. 655 Shyam Lal
v. The State of Uttar Pradesh, (1955) 1 S.C.R. 26 and Shrinivas Ganesh v. Union
of India, L.R. 58 Bom. 673, referred to.

       A reduction in rank must, similarly, be a punishment if it carries penal
consequences with it and the two tests to be applied are (1) whether the servant
has a right to the post or the rank or (2) whether evil consequences such as
forfeiture of pay or allowances, loss of seniority in his substantive rank,
stoppage or postponement of future chances of promotion, follow as a result of
the order. Where either of these tests applies, the reduction in

       831

       rank mast be one within the meaning of Art. 311 (2) of the Constitution
and attract its protection.

       In the instant case, the appellant was holding an officiating post and
had no right under the rules of the Railway Code to continue in it. Under the
general law such appointment was terminable at, any time on reasonable notice,
and the reduction could not operate' as a forfeiture of any right. The order of
the General Manager visited him with no evil consequences. Consequently, he was
not reduced in rank by way of punishment.

       Per Bose J.-While there can be no doubt that Art. 311 applies to all
classes of Government Servants whether permanent, quasipermanent, officiating,
temporary or on probation and that the words dismissal, removal and reduction in
rank used therein have a special meaning, that Article, properly construed,
cannot be confined to the penalties prescribed by the Service Rules. The gist of
it is neither the form of the action nor the procedure nor what operated in the
mind of the competent authority. The real test is whether evil consequences over
and above those that would ensue from a "contractual termination" are likely to
ensue. If they are, Art. 311 is attracted even though such evil consequences are
not prescribed as "penalties" under the Rules.

       Though the conditions of service prescribed by the Rules can be varied
unilaterally in some cases because of the "pleasure" of the President, they
cannot be ignored as long as they stand, and if they are infringed while in
force, Art. 311 will be attracted in an appropriate case. Satish Chandya Anand
v. Union of India, (1953) S.C.R. 655 and Shyam Lal v. State of Uttar Pradesh,
(1955) S.C.R. 26, referred to.

       Nor can the protections afforded by Art. 311 be nullified by a splitting
up of the order.

       In the present case the General Manager's remarks in the confidential
file, which formed a part of the operative order and was its real foundation,
clearly indicated the mischief, that the appellant was not to be promoted to a
like post until in the opinion of some competent Officer he had made good his
previous short-comings. That was an evil consequence, over and above that which
would follow from a mere "contractual termination" of his engagement in the
higher post, and so was sufficient to attract the protection of Art. 311.

JUDGMENT:

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 65 of 1957. Appeal from
the judgment and order dated January 1, 1956, of the Punjab High Court (Circuit
Bench) at Delhi in Letters Patent Appeal No. 28 of 1955, arising out of the
judgment and order dated April 15, 1955, of the Single Judge, of the Circuit
Bench of the Punjab High Court in Civil Writ 332

       No. 36-D of 1955.

       A. N. Grover and P. S. Safeer, for the appellant. R. Ganapathy lyer and
R. H. Dhebar, for the Respondent. Frank Anthony and C. P. Aggarwala, for the
intervener. 1957. November 1. The judgment of S. R. Das C. J., Venkatarama
Aiyar, S. K. Das and A. K. Sarkar JJ. was delivered by S. R. Das C. J. Bose J.
delivered a separate judgment.

       DAS C. J.-This appeal has been filed with a certificate of fitness
granted by the Punjab High court on August 20. 1956. It is directed against the
judgment and order passed by a Division Bench of that court on January 19, 1956,
in Letters Patent Appeal No. 28 of 1955, reversing the judgment and order of Mr.
Justice Harnam Singh pronounced on April 15, 1955, whereby his Lordship had
allowed the appellant's application being Civil Writ No. 36-D of 1955 and set
aside the order passed by the General Manager, Northern Railway on August 19,
1953, reverting the petitioner from the post of Signal and Tele-communication
Engineer, (Telegraphs) in Class II service where the appellant was officiating
to his substantive post in Class III service. This appeal raises a very
important question about the construction of art. 311 of the Constitution.

       The facts are shortly as follows:-In August 1924 the appellant joined the
railway service as a Signaller (Telegraphist). As a result of selection, he was
promoted as Section Controller in 1942 and as Deputy Chief Controller in 1947
and as the Chief Controller in 1950. All these posts were in Class III service.
On March 31, 1951, seven candidates, including the appellant, appeared before a
selection board constituted for selecting a candidate for the post of Assistant
Superintendent Railway Telegraphs, which was a gazetted post in Class 11
Officer's cadre. The appellant was selected out of the seven candidates for this
post. On July 2, 1951, a notice of appointment was issued from the headquarters
of the East Punjab Railway, 833

       Delhi, notifying that " Mr. Parshotam Lal, Officiating Chief Controller,
is appointed to officiate in Class II service as Asstt. Spdt. Rly. Telegraphs,
Headquarters Office vice Mr. Sahu Ram whose term of temporary re-employment
expires on the afternoon of 3rd July, 1951 ". The applicant actually relieved
Mr. Sahu Ram in the afternoon of July 3, 1951. It appears that on April 28,
1953, one Gouri Shankar S.S.T.E.I./Hd. Qrs. made certain adverse remarks against
the appellant in his confidential report for the year ending March 31, 1953.
This confidential report came before Shri S. Sen, C.S.T.E., on May 25,1953, who
confirmed the views expressed by Shri Gouri Shankar and added his own opinion
which was also adverse to the appellant. According to the usual practice
obtaining in the office the aforesaid remarks were placed before the General
Manager, Shri Karnail Singh, who on June 11, 1953, remarked thereon as follows:
" I am disappointed to read these reports. He should revert as a subordinate
till he makes good the short-comings noticed in this chance of his as an
officer. Portions underlined red to be communicated."

       The adverse remarks against the appellant in the confidential report for
the year ending March 31, 1953, which were communicated to the appellant for his
information by a confidential letter No. E-106/180 dated June 29, 1953, were as
follows:

       "............ He is, however, inclined to be hasty in his decisions. His
office work is scrappy and does not show attention to detail. His relations with
staff as well as officers have not been happy. He has displayed a tendency to
resort freely to transfers and punishment of staff, as a means of correcting
their faults and in regard to officers has not maintained the proper tone and
approach in official notings, discussions and letters to Divisions. The above
short-comings have been brought to his notice on a number of occasions both in
person and in writing, without any improvement."

       Remarks of Shri S. Sen, C.S.T.E.

       ". ............... This officer suffers from an inflated 834

       idea of self importance. His ways and manners require radical change if
he desires to have a successful career as an officer."

       Remarks of the General Manager.

       "I am disappointed to read these reports ..............." On July 24,
1953, the appellant, who had by this time earned two increments on July 4, 1952
and July 4, 1953, made a representation against the remarks made against him. On
August 19, 1953, however, notice No. 940-E/14 (E.I.A.) was issued by the General
Manager (P) to the following effect: " Shri Bishambar Nath Chopra, Instructor
Railway Training School, Saharnpur, is transferred to Headquarters office and
appointed to officiate in Class 11 service as Assistant Signal and Tele-
communication Engineer (Telegraphs) vice Shri Parshotam Lal Dhingra, who on
relief reverts to Class III appointment."

       The appellant on August 20, 1953, appealed to the General Manager for
reconsideration and thereafter on October 19, 1953, appealed to the Railway
Board and made a representation also to the President of India. On February 2,
1955, the Railway Board wrote to the General Manager as follows:

       With reference to your letter No. 3780 dated the 30th December, 1953, the
Board desires that you should inform Shri Parshotam Lal Dhingra that his
reversion for generally unsatisfactory work will stand, but that this reversion
will not be a bar to his being considered again for a promotion in the future if
his work and conduct justify. He should also be informed that he has, in his
representation, used language unbecoming of a senior official, and that he
should desist from this in future.

       You may watch his work up to the end of March, 1955 and judging from his
work and conduct, you may treat him as eligible for being considered for
promotion as Assistant Transportation Superintendent in the Selection that may
be made after March 1955." This was communicated to the petitioner on February
17, 1955.

       835

       In the meantime the petitioner had on February 9, 1955, filed his writ
petition under Art. 226 of the Constitution. Mr. Justice Harnam Singh took the
view that the petitioner had been punished by being reduced in rank without
being given an opportunity to show cause against the action proposed to be taken
in regard to him and that consequently the order was invalid for non-compliance
with the provisions of Art. 311 (2) of the Constitution. On a Letters Patent
Appeal filed by the Union of India, a Division Bench (Bhandari C. J. and Falshaw
J.) reversed the order of Harnam Singh J. and dismissed the petitioner's writ
application. The High Court having subsequently certified that it was a fit case
for appeal to this Court, the petitioner has now come up on appeal before us and
the question for our decision is whether the order passed by the General Manager
on August 19, 1953, amounted to a reduction in rank within the meaning of Art.
311 (2) of the Constitution, for if it did then the order must be held to be
invalid as the requirements of that article had admittedly not been compli- ed
with.

       Under the English Common Law all servants of the Crown held office during
the pleasure of the Crown and were liable to be dismissed at any time and
without any reason being assigned for such dismissal. No action lay against the
Crown in respect of such dismissal, even though it were contrary to the express
term of the contract of employment, for the theory was that the Grown could not
fetter its future executive action by entering into a contract in matters which
concerned the welfare of the State. A servant of the Crown could not at Common
Law sue the Crown even for the arrears of his salary, and his claim could be
only on the bounty of the Crown. The established notion was that the implied
condition between the Crown and its servant was that the latter held his office
during the pleasure of the Crown, no matter whether it had been referred to when
the engagement had been made or not and that public policy demanded this
qualification. (See per Lord Blackburn in 106

       836

       Mulvenna v. The Admiralty(1). This rule was applied in full force in
Lucas v. Lucas and High Commissioner for India (2), where it was held that the
sterling overseas pay of an Indian Civil Servant was not a debt which could be
attached in satisfaction of an order for the payment of alimony. In the State of
Bihar v, Abdul Majid (3), however, this Court held, for reasons stated in the
judgment delivered by Mahajan C. J. that the Indian Law has not adopted the rule
of English Law on the subject in its entirety. Turning to our Statute Law, we
find that in the Government of India Act, 1915 (5 & 6 Geo. V. Ch. 61)' as
originally enacted, there was no reference to this doctrine of the English
Common Law. By s. 45 of the Government of India Act, 1919 (9 & 10 Geo. V. Ch.
101) read with Part I of the second schedule to that Act several sections,
including s. 96-B, were introduced into the Government of India Act, 1915
(hereinafter called the " 1915 Act"). The relevant portion of s. 96-B was as
follows:

       " 96-B (1). Subject to the provisions of this Act and the rules made
thereunder, every person in the civil service of the Crown in India holds office
during His Majesty's pleasure, and may be employed in any manner required by a
proper authority within the scope of his duty, but no person in that service may
be dismissed by any authority subordinate to that by which he was appointed and
the Secretary of State in Council may (except so far as he may provide by rules
to the contrary) re-instate any person in that service who has been dismissed."

       Sub-section (2) of that section empowered the Secretary of State in
Council to make rules for regulating the classification of the Civil Services in
India, the method of recruitment, the conditions of service, pay and allowances
and discipline and conduct and sub-section (4) declared that all service rules
then in force had been duly made and confirmed the same. The point to be noted
is that s. 96-B for the first time gave a statutory recognition and force to the
English Common

       (1) (1926) S.C. 842.

       (3) [1954] S.C.R. 786.

     (2) L.R. (1943) P. 68.

       837

       Law rule that the servants of the Crown held their Offices during the
pleasure of the Crown and at the same time imposed one important qualification
upon the exercise of the Crown's pleasure, namely, that a servant might not be
dismissed by an authority sub- ordinate to that by which he had been appointed.

       Section 96-B (1) was reproduced as sub-ss. (1) and (2) of s. 240 of the
Government of India Act, 1935 (26 Geo. V. Ch.II), (hereinafter referred to as
the 1935 Act) and a new sub- section was added to s. 240 as sub-s. (3). The
relevant portions of s. 240 of the 1935 Act are set out below: " 240 (1) Except
as expressly provided by this Act, every person who is a member of a Civil
service of the Crown in India, or holds any civil post under the Crown in India,
holds office during His Majesty's pleasure.

       (2) No such person as aforesaid shall be dismissed from the service of
His Majesty by any authority subordinate to that by which he was appointed.

       (3) No such person as aforesaid shall be dismissed or reduced in rank
until he has been given a reasonable opportunity of showing cause against the
action proposed to be taken in regard to him;

       Then followed a proviso which made sub-s. (3) inapplicable to certain
persons and then came sub-s. (4) providing for compensation for premature
termination% of employment in certain cases which it is not necessary to set out
here. The rule making power given by s. 96-B (2) of the 1915 Act was reproduced
in s. 241 of the 1935 Act. Section 276 of the 1935 Act, like s. 96-B (4) of the
1915 Act, continued in force all the rules made under the last mentioned- Act,
while the existing laws were continued by s. 292. It should be noted that the
opening words of s. 96-B (1), namely, ,,Subject to the provisions of this Act
and the rules made thereunder " were substituted by the words " Except as
expressly provided by this Act." The effect of this will be discussed hereafter.
Subsection (1) adopted the English Common Law rule regarding the pleasure of the
Crown but imposed on it

       838

       two qualifications by two separate sub-sections. Subsection (2)
reproduced the qualification which had been imposed by s. 96-B (1), namely that
a servant of the class therein mentioned must not be dismissed by an authority
subordinate to that by which he had been appointed and sub-s. (3) introduced a
still more important qualification on the exercise of the Crown's pleasure,
namely, that no such servant must be dismissed or reduced in rank until he had
been given a reasonable opportunity of showing cause against the action proposed
to be taken in regard to him. Reduction in rank was not referred to in s. 96-B
(1) but was for the first time added to dismissal in sub-s. (3). Then came our
Constitution on January 26, 1950. Part XIV deals with " Services under the Union
and the States". Chapter I contains seven sections grouped under the heading "
Services". Section 240(1) of the 1935 Act has been substantially reproduced in
Art. 310 (1) and sub-ss. (2) and (3) of s. 240 have become Art. 311(1) and (2),
while s. 276 of the 1935 Act, which continued the existing rules in force, has
been embodied in Art. 313. Article 310(1) and Art. 311 omitting the proviso to
cl. (2) are as follows: " 310 (1) Except as expressly provided by this
Constitution, every person who is a member of a defence service or of a civil
service of the Union or of an all-India Service or holds any post connected with
defence or any civil post under the Union, holds office during the pleasure of
the President, and every person who is a member of a civil service of a State or
holds any civil post under a State holds office during the pleasure of the
Governor of the State.

       311 (1) No person who is a member of a civil service of the Union or an
all-India service or a civil service of a State or holds a civil post under the
Union or a St-ate shall be dismissed or removed by an authority subordinate to
that by which he was appointed.

       (2) No such person as aforesaid shall be dismissed or removed or reduced
in rank until he has been given a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him:

       povided ................................................ 839

       (3) If any question arises whether it is reasonably practicable to give
any person an opportunity of showing cause under clause (2), the decision
thereon of the authority empowered to dismiss or remove such person or to reduce
him in rank, as the case may be, shall be final." To summarise: As under s.
96-B(1) of the 1915 Act and s. 240(1) of the 1935 Act, the persons specified
therein held office during the pleasure of the Crown, so under Art. 310(1) they
hold their office during the pleasure of the President or of the Governor, as
the case may be. The opening words of Art. 310(1), namely, Except as expressly
provided by this Constitution reproduce the opening words of s. 240(1) of the
1935 Act, substituting the word " Constitution " for the word " Act ". The
exceptions contemplated by the opening words of Art. 310(1) quite clearly refer,
inter alia, to Arts. 124, 148, 218 and 324 which respectively provide expressly
that the Supreme Court Judges, the Auditor-General, the High Court Judges and
the Chief Election Commissioner shall not be removed from his office except by
an order of the President passed after an address by each House of Parliament,
supported by the requisite majority therein specified, has been presented to him
in the same session for such removal on the ground of proved misbehaviour or
incapacity. These are clearly exceptions to the rule embodied in Art. 310(1),
that public servants hold their office during the pleasure of the President or
the Governor, as the case may be. Subject to these exceptions our Constitution,
by Art. 310(1), has adopted the English Common Law rule that public servants
hold office during the pleasure of the President or Governor, as the case may be
and has, by Art. 31 1, imposed two qualifications on the exercise of such
pleasure. Though; the two qualifications are set out in a separate article, they
quite clearly restrict the operation of the rule embodied in Art. 310(1). In
other words the provisions of Art. 311 operate as a proviso to Art. 310(1). All
existing laws have been continued by Art. 372, some of which, e.g., the Code of
Civil Procedure make, it possible for a public servant to enforce his claims

       840

       against the State. It has accordingly been held by this Court in the
State of Bihar v. Abdul Majid (supra) that the English Common Law rule regarding
the holding of office by public servants only during the pleasure of the Crown
has not been adopted by us in its entirety and with all its rigorous
implications. Passing on to Art. 311 we find that it gives a two fold protection
to persons who come within the article, namely, (1) against dismissal or removal
by an authority subordinate to that by which they were appointed and (2) against
dismissal or removal or reduction in rank without giving them a reasonable
opportunity of showing cause against the action proposed to be taken in regard
to them. Incidentally it will be noted that the word removed " has been added
after the word "dismissed". in both cls. (1) and (2) of Art. 311. Upon Art. 311
two questions arise, namely, (a) who are entitled to the protection and (b) what
are the ambit and scope of the protection ?

       Re (a): Articles 310 and 311 are two of the articles which have been
grouped under the heading "Services" in Chapter I of Part XIV which deals with
the "Services under the Union and the States". It is well known that there are
different species of Government services. In the absence of a contract to the
contrary the terms of employment of persons in different services are governed
by rules made by the appropriate authorities to which reference will hereafter
be made. The strength of a service or a part of a services actioned as a
separate unit is, in the Fundamental Rules, s. 111, ch. 11, r. 9(4), called the
cadre. Each cadre consists of a certain number of posts. According to r. 9(22)
of the Fundamental Rules, a permanent post means a post carrying a definite rate
of pay sanctioned without limit of time. In each cadre there may be and often is
a hierarchy of ranks. Due to rush of business or other exigencies some
"temporary posts" are often created. A temporary post is defined in r. 9(30) to
mean a post carrying a definite rate of pay sanctioned for a limited time. These
temporary posts are very often outside the cadre and are usually for one year
and are renewed from year to year, although some of them may be

       841

       created for a certain specified period. The conditions of service of a
Government servant appointed to a post, permanent or temporary, are regulated by
the terms of the contract of employment, express or implied, and subject
thereto, by the rules applicable to' the members of the particular service.

       The appointment of a Government servant to a permanent post may be
substantive or on probation or on an officiating basis. A substantive
appointment to a permanent post in public service confers normally on the
servant so appointed a substantive right to the post and he becomes entitled to
hold a "lien" on the post. This "lien" is defined in Fundamental Rule s. 111,
ch. 11, r. 9(13) as the title of a Government servant to hold substantively a
permanent post, including a tenure post, to which he has been appointed
substantively. The Government cannot terminate his service unless it is entitled
to do so (1) by virtue of a special term of the contract of employment, e.g., by
giving the requisite notice provided by the contract or (2) by the rules
governing the conditions of his service, e.g., on attainment of the age of
superannuation prescribed by the rules, or on the fulfilment of the conditions
for compulsory retirement or, subject to certain safeguards' on the abolition of
the post or on being found guilty after a proper enquiry on notice to him, of
misconduct negligence, inefficiency or any other disqualification' An
appointment to a permanent post in Government service on probation means, as in
the case of a person appointed by a private employer, that the servant so
appointed is taken on trial. The period of probation may in some cases be for a
fixed period, e.g., for six months or for one year or it may be expressed simply
as "on probation" without any specification of any period. Such an employment on
probation, under the ordinary law of master and servant, comes to an end if
during or at the end of the probation the servant so appointed on trial is found
unsuitable and his service is terminated by a notice. An appointment to
officiate in a permanent post is usually made when the incumbent substantively
holding that post is on leave or when the permanent post is vacant and no
substantive

       842

       appointment has yet been made to that post. Such an officiating
appointment comes to an end on the return of the incumbent substantively holding
the post from leave in the former case or on a substantive appointment being
made to that permanent post in the latter case or on the service of a notice of
termination as agreed upon or as may be reasonable under the ordinary law. It
is, therefore, quite clear that appointment to a permanent post in a Government
service, either on probation, or on an officiating basis, is, from the very
nature of such employment, itself of a transitory character and, in the absence
of any special contract or specific rule regulating the conditions of the
service, the implied term of such appointment, under the ordinary law of master
and servant, is that it is terminable at any time. In short, in the case of an
appointment to a permanent post in a Government service on probation or on an
officiating basis, the servant so appointed does not acquire any substantive
right to the post and consequently cannot complain, any more than a private
servant employed on proba- tion or on an officiating basis can do, if his
service is terminated at any time. Likewise an appointment to a temporary post
in a Government service may be substantive or on probation or on an officiating
basis. Here also, in the absence of any special stipulation or any specific
service rule, the servant so appointed acquires no fight to the post and his
service can be terminated at any time except in one case, namely, when the
appointment to a temporary post is for a definite period. In such a case the
servant so appointed acquires a right to his tenure for that period which cannot
be put an end to unless there is a special contract entitling the employer to do
so on giving the requisite notice or, the person so appointed is, on enquiry
held on due notice to the servant and after giving him a reasonable opportunity
to defend himself, found guilty of misconduct, negligence, inefficiency or any
other disqualification and is by way of punishment dismissed or removed from
service or reduced in rank. The substantive appointment to a temporary post,
under the rules, used to give the servant so appointed

       843

       certain benefits regarding pay and leave, but was otherwise on the same
footing as appointment to a temporary post on probation or on an officiating
basis, that is to say, terminable by notice except where under the rules
promulgated in 1949 to which reference Will hereafter be made, his service had
ripened into what is called a quasi- permanent service.

       The position may, therefore, be summarised as follows: In the absence of
any special contract the substantive appointment to a permanent post gives the
servant so appointed a right to hold the post until, under the rules, he attains
the age of superannuation or is compulsorily retired after having put in the
prescribed number of years' service or the post is abolished and his service
cannot be terminated except by way Of punishment for misconduct, negligence,
inefficiency or any other disqualification found against him on proper enquiry
after due notice to him. An appointment to a temporary post for a certain
specified period also gives the servant so appointed a right to hold the post
for the entire period of his tenure and his tenure cannot be put an end to
during that period unless he is, by way of punishment, dismissed or removed from
the service. Except in these two cases the appointment to a post, permanent or
temporary, on probation or on an officiating basis or a substantive appointment
to a temporary post gives to the servant so appointed no right to the Post and
his srvice 'may be terminated unless his service had ripened into what is, in
the service rules, called a quasi-permanent service. The question for our
consideration is whether the protections of Art. 311 are available to each of
these several categories of Government servants.

       A number of decisions bearing on the question of construction of Arts.
310 and 311 have been cited before us which indicate that there is some
difference of opinion between the Judges of the different High Courts and in
some cases amongst the Judges of the same High Court. Thus it has been held in
some cases that Arts. 310 and 311 do not make any distinction between Government
servants who are employed in permanent posts and those who are employed in 107

       844

       temporary posts. See Jayanti Prasad v. The State of Uttar Pradesh (1), 0.
P. Oak v. The State of Bombay(2) Kishanlal Laxmilal v. The State of Madhya
Bharat (3), Gopi Kishore Prasad v. The State of Bihar (4), Punit lal Saha v. The
State of Bihar(5) and Yusuf Ali Khan v. Province of the Punjab(6). On the other
hand it has been held in some cases that a Government servant cannot be deemed
to be a member of a service unless he is permanently absorbed therein, nor can
he be deemed to be a holder of such post unless he holds it permanently and that
such a Government servant is not entitled to claim the benefit of Art. 311. See
Laxminarayan Chiranjilal Bhargava v. The Union of India (7), Engnneer-in- Chief,
Army Head Quarters v. C. A. Gupta Ram (8), State of Punjab v. S. Sukhbans Singh
(9) and Chironjilal v. Union of India (10). The cases cited before us also
indicate that the preponderance of view is that only a dismissal or removal or
reduction in rank by way of penalty attracts the operation of Art. 311 (2), but
that a termination of service brought about otherwise than by way of punishment,
e.g., by the exercise of the right under the terms of employment or under the
relevant rules regulating the conditions of service which form part of the terms
of employment does not. See Jayanti Prasad v. The State of Uttar Pradesh
(supra), Shrinivas Ganesh v. Union of India (11); Jatindra Nath Biswas v. R.
Gupta (12), Rabindra Nath Das v. The General Manager, Eastern Railway (13),
Jatindra Nath Mukherjee v. The Government of the Union of India("), Ahmad Sheikh
v. Ghulam Hassan (15), Ganesh Balkrishna Deshmukh v. The State of Madhya Bharat
(16), D. P. Ragunath v. The State of Coorg (17), M. V. Vichoray v. The State of
Madhya Pradesh (18), Kamta Charan Srivastava v. Post Master General (19) and
Sebastian v. State("). The cases,

       (I) A.I.R. (1951) All. 793.(2) A.I.R. (1957) Bom. 175. (3) A.I.R. (1956)
M B. 1oo.(4) A.I.R. (1955) Pat.372. (5) A.I.R. (1957) Pat. 357(6) A.I.R. (1950)
Lah. 59. (7) 1.1,.R. (1955) Nag. 803;A. I. R. (1956) Nag.(8) A.I.R. (1957)Punj.
42.

     (9) A.I.R. (1957) Punj. 191.113.(10) A.I.R. (1957) Raj. 81.

     (11) L.R. 58 Bom. 673; A.I.R. (1956) Bom. 455.(12) A.I.R. (1954) Cal. 383.

     (13) (1955) 59 C.W.N. 859. (14) (1957) 611C.W.N. 815.

     (15) A.I.R. (1957) J. & K. xi.(16) A.I.R. (1956) M.B. 172.

     (17) A.I.R. (1957) Mys. 8. (18) Al.R. (1952) Nag. 288.

     (19) A.I.R. (1955) Pat. 381.(2o) A.I.R. (1955) Tr. Co. 12,

 845

       however, do not lay down or clearly indicate any test for ascertaining
whether in any particular case a termination of service is inflicted by way of
penalty so as to amount to dismissal, removal or reduction in rank within the
meaning of Art. 311 (2) or is brought about by the exercise of the right to
terminate it arising out of the terms of employment agreed upon between the
parties or contained in rules regulating the conditions of service subject to
which the employment was made. Further a certain amount of confusion arises
because of the indiscriminate use of the words "temporary", Cc provisional ", "
officiating " and " on probation ". We, therefore, consider it right to examine
and ascertain for ourselves the scope and effect of the relevant provisions of
the Constitution.

       Article 311 does not, in terms, say that the protections of that article
extend only to persons who are permanent members of the services or who hold
permanent civil posts. To limit the operation of the protective provisions of
this article to these classes of persons will be to add qualifying words to the
article which will be. contrary to sound principles 'of interpretation of a
Constitution or a statute. In the next place, el. (2) of Art. 311 refers to
"such person as aforesaid" and this reference takes us back to cl. (1) of that
article which speaks of a " person who is a member of a civil service of the
Union or an all-India service or a civil service of a State or holds a civil
post under the Union or a State". These persons also come within Art. 3 10(1)
which, besides them, also includes persons who are members of a defence service
or who hold any post connected with defence. Article 310 also is not, in terms'
confined to persons who are permanent members of the specified services or who
hold permanent posts connected with the services therein mentioned. To hold that
that article covers only those persons who are permanent members of the
specified services or who hold posts connected with the services therein
mentioned will be to say that persons, who are not permanent members of those
services or who do not hold permanent posts therein, do not hold their
respective offices during the pleasure of the President 846

       or the Governor, as the case may be-a proposition which obviously cannot
stand scrutiny. The matter, however, does not rest here. Coming to Art. 31 1, it
is obvious that if that article is limited to persons who are permanent members
of the services or who hold permanent civil posts, then the constitutional
protection given by cls. (1) and (2) will not extend to persons who officiate in
a permanent post or in a temporary post and consequently such persons will be
liable to be dismissed or removed by an authority subordinate to that by which
they were appointed or be liable to be dismissed, removed or reduced in rank
without being given any opportunity to defend themselves. The latter classes of
servants require the constitutional protections as much as the other classes do
and there is nothing in the language of Art. 311 to indicate that the
Constitution makers intended to make any distinction between the two classes.
There is no apparent reason for such distinction. It is said that persons who
are merely officiating in the posts cannot be said to " hold " the post, for
they only perform the duties of those posts. The word " hold " is also used in
Arts. 58 and 66 of the Constitution. There is no reason to think that our
Constitution makers intended that the disqualification referred to in cl. (2) of
the former and cl. (4) of the latter should extend only to persons who
substantively held permanent posts and not to those who held temporary posts and
that persons officiating in permanent or temporary posts would be eligible for
election as President or Vice- President of India. There could be no rational
basis for any such distinction. In our judgment, just as Art. 310, in terms,
makes no distinction between permanent and temporary members of the services or
between persons holding permanent or temporary posts in the matter of their
tenure being dependent upon the pleasure of the President or the Governor, so
does Art. 311, in our view, make no distinction between the two classes, both of
which are, therefore, within its protections and the decisions holding the
contrary view cannot be supported as correct,. Re: (b) :-Clause (1) of Art. 311
is quite explicit and 847

       hardly requires discussion, The scope and the ambi of that protection are
that Government servants of the kinds referred to therein are entitled to the
judgmen of the authority by which they were appointed or some authority superior
to that authority and that the should not be dismissed or removed by a lesser
authority in whose judgment they may not have the same faith. The underlying
idea obviously is that a provision like this will ensure to them a certain
amount of security of tenure. Clause (2) protects Government servant: against
being dismissed or removed or reduced in rank without being given a reasonable
opportunity of showing cause against the action proposed to be taken in regard
to them. It will be noted that in cl. (1) the words " dismissed " and " removed
" have been used while in cl. (2) the words " dismissed ", " removed " and "
reduced in rank " have been used. The two, protections are (1) against being
dismissed or removed by an authority subordinate to that by which the
appointment had been made and (2) against being dismissed, removed or reduced in
rank without being heard. What, then, is the meaning of those expressions "
dismissed ", " removed " or " reduced in rank" ? It has been said in Jayanti
Prasad v. The State Of Uttar Pradesh (supra) that these are technical words used
in cases in which a person's services are terminated by way of punishment. Those
expressions, it is urged, have been taken from the service rules, where they
were used to denote the three major punishments and it is submitted that those
expressions should be read and understood in the same sense and treated as words
of art. This leads us to embark upon an examination of the service rules
relating to punishments to which the Government servants can be subjected. Rule
418 of the Civil Service Regulations of 1902 (hereinafter called the 1902 Rules)
provide, inter alia, that the removal of public servants from the service for
misconduct, insolvency, inefficiency not due to age or failure to pass a
prescribed examination entailed forfeiture of past services. Those 1902 Rules,
however, did not Bay under what circumstances or in what

       848

       manner and by which authority public servants could be removed.

       In exercise of the powers conferred by s. 96-B(2) of ,he 1915 Act the
Secretary of State in Council framed the Civil Service (Governor's Provinces)
Classification Rules (hereinafter referred to as the 1920 Classification Rules)
which came into force in December, 1920 and were applicable to Government
servants serving in the Governor's Provinces. Rule X of these 1920
Classification Rules laid down that a local Government might for good and
sufficient reasons (1) censure, (2) reduce to a lower post, (3) withhold
promotion from or (4) suspend from service, any officer of an all- India
service, provided that no head of the department appointed with the approval of
the Governor General in Council would be reduced to a lower post without the
sanction of the Governor General in Council. Likewise r. XIII provided that,
without prejudice to the provisions of any law for the time being in force, the
local Government might for good and sufficient reasons (1) censure, (2) withhold
promotion from, (3) reduce to a lower post, (4) suspend, (5) remove, or (6)
dismiss any officer holding a post in a provincial or subordinate service or a
special appointment. Rule XIV laid down the procedure in cases of dismissal,
removal or reduction in the following terms: " Rule XIV-Without prejudice to the
provisions of the Public Servants Inquiries Act, 1850, in all cases in which the
dismissal, removal or reduction of any officer is ordered, the order shall,
except when it is based on facts or conclusions established at a judicial trial,
or when the officer concerned has absconded with the accusation hanging over
him, be preceded by a properly recorded departmental enquiry. At such an enquiry
a definite charge in writing shall be framed in respect of each offence and
explained to the accused, the evidence in support of it and any evidence which
he may adduce in his defence shall be recorded in his presence and his defence
shall be taken down in writing. Each of the charges framed shall be discussed
and a finding shall be recorded on each charge. " Thus we find that these 1920
Classification Rules

       849

       enumerated the different kind-, of punishments that could be inflicted on
the different classes of Government servants and elaborately prescribed the
procedure which had to be followed before those punishments could be inflicted.
The Secretary of State in Council also promulgated, with effect from January 1,
1922, what are known and what will hereafter be referred to as the Fundamental
Rules governing the conditions of service, leave, pay and pension of all
Government servants whose pay was debitable to civil estimates in India and to
any other class of Government servants in India to which the Secretary of State
in Council might by general or special order declare them to be applicable. Like
r. 418 of the 1902 Rules, r. 52 of the Fundamental Rules provided that the pay
and allowances of Government servants, who were dismissed or removed from
service, would cease from the day of such dismissal or removal. Thus the penal
consequences of loss of pay and allowances continued to follow dismissal or
removal. On May 27, 1930, the Secretary of State for India in Council, in
exercise of the powers conferred by s. 96 B(2) of the Government of India Act,
1919, made the Civil Services (Classification, Control and Appeal) Rules,
(hereinafter called the 1930 Classification Rules) which superseded the 1920
Classification Rules. The 1930 Classification Rules, by r. 3, applied to every
person in the whole time civil employment of a Government in India (other than a
person so employed only occasionally or sub- ject to discharge at less than one
month's notice) except certain classes of persons therein specified which
included, inter alia, railway servants. Under r. 14 the public services in India
were classified under six heads, namely, (1) All-India Services, (2) Central
Services Class I, (3) Central Services Class II, (4)Provincial Services, (5)
Specialist Services and (6) the Subordinate Services. Under r. 15 read with sch.
I the following were the all-India services:-(I) Indian Civil Service, (2)
Indian Police Service, (3) Indian Agricultural Service, (4) Indian Educational
Service,

       850

       (5) Indian Forest Service, (6) Indian Forest Engineering Service, (7)
Indian Medical Service, (8) Indian Service of Engineers, (9) Indian Veterinary
Service and (10) Indian General Service. The Indian Railway ,Service was not
included in the list. Rule 49, as originally framed, provided as follows:

       "The following penalties may, for good and sufficient reason and as
hereinafter provided, be imposed upon members of the services comprised in any
of the class (1) to (5) specified in rule 14, namely:-(i) Censure, (ii)
Withholding of increments or promotion, including stoppage at an efficiency bar,
(iii) Reduction to a lower post or time-scale, or to a lower stage in a time
scale, (iv) Recovery from pay of the whole or part of any pecuniary loss caused
to Government by negligence or breach of orders, (v) Suspension, (vi) Removal
from the civil service of the Crown which does not disqualify from future
employment, (vii) Dismissal from the Civil Service of the Crown, which,
ordinarily disqualifies from future employment.

       Explanation, The discharge-

       (a) of a person appointed on probation, during the period of probation,
(b) of a person appointed otherwise than under contract to hold a temporary
appointment, on the expiration of the period of the appointment, (c) of a person
engaged under contract, in accordance with the terms of -his contract, does not
amount to removal or dismissal within the meaning of this rule."

       The Explanation to r. 49 was amended on March 28, 1948, on February 28,
1950, and finally on January 28, 1955, when the Explanation was numbered as
Explanation I and the words in cl. (ii) of r. 49, namely, " including stoppage
at an efficiency bar" were deleted and Explanation II was added. So amended the
Explanations read as follows: " Explanation I-The termination of employment--(a)
of a person appointed on probation during or at the end of the period of
probation, in accordance with the terms of the appointment and the rules
governing the probationary service; or

       (b) of a temporary Government servant appointed 851

       otherwise than under contract, in accordance with rule 5 of the Central
Civil Services (Temporary Service) Rules, 1949; or

       (c) of a person engaged under a contract does not amount to removal or
dismissal within the meaning of this rule or of rule 55.

       Explanation II : Stopping a Government servant at an efficiency bar in
the time scale of his pay on the ground of his unfitness to cross the bar does
not amount to withholding of increments or promotion within the meaning of this
rule. "

       Like r. XIV of the 1920 Classification Rules, r. 55 of the 1930
Classification Rules, as originally framed in 1930, provided that, without
prejudice to the Public Servants Enquiries Act, 1850, no order of dismissal,
removal or reduction should be passed on a member of a service (other than an
order passed on facts which had led to his conviction in a criminal court or by
a court martial) unless he had been informed in writing of the grounds on which
it was proposed to take action and had been afforded an adequate opportunity of
defending himself Detailed provisions were made as to the grounds on which it
was proposed to take action being reduced to the form of a definite charge or
charges and for the communication thereof to the officer together with a
statement of the allegations on which each charge was based and further
provisions were made as to the procedure relating to the filing of the defence,
the right to cross-examine and to give evidence in person or to have such
witnesses called as he might wish to examine in his defence. Thus in the 1930
Classification Rules, as in the 1920 Classification Rules, were enumerated the
different kinds of punishments which could be inflicted on the Government
servants of the class to which those rules were applicable and out of those
varieties of punishments mentioned in r. 49, three of them, namely, dismissal,
removal and reduction in rank, were treated as major punish- ments and some
special procedural protection was prescribed in the interest of the Government
servants.

       At the date of the commencement of the Constitution the railway servants
were governed by a separate set 108

       852

       of rules collected in the two volumes of the Indian Railway Establishment
Code. The petitioner is a railway servant and as such is governed by the rules
of the Indian Railway Code. Chapter XVII, which is in Volume I, regulated the
conduct and discipline of the railway servants and the Railway Fundamental Rules
collected in Volume 11 regulated their conditions of service, pay and
deputation. These are similar to and are in pari materia with the 1930
Classification Rules. Rule 1702 of Chapter XVII prescribes eleven distinct
penalties which may for good and sufficient reasons be imposed upon railway
servants, namely, (1) censure, (2) withholding of the privilege of passes and/or
privilege ticket order, (3) fines, including forfeiture or reduction of running
allowances in the case of train and running staff, (4) withholding of increments
or promotion including stoppage at an efficiency bar, (5) reduction to a lower
post or time-scale or to a lower stage in a time scale, (6) recovery from pay of
the whole or part of any pecuniary loss caused to Government by negligence or
breach of orders, (7) suspension, (8) removal from the service, (9) dismissal
from the service, (10) withholding of the whole or part of Provident Fund and
Gratuity Rules (Chapters XIII and XV) and (11) reducing or withholding the
maximum pension admissible in accordance with the provisions of the rules
governing the grant of pensions. There is a Note below this rule to the effect
that the discharge (a) of a person appointed on probation, during the period of
probation, (b) of a person engaged under contract for a specific period, on the
expiration of such period in accordance with the terms of his contract, (c) of a
person appointed in a temporary capacity otherwise than under a contract, in
accordance with the general conditions of service applicable to temporary
employment and of some other persons enumerated therein, do not amount to
removal or dismissal within the meaning of r. 1702. Rule 1703 states that while
dismissal from service disqualifies a railway servant from future employment,
removal from service is not to be considered an absolute disqualification. Rule
1704 specifies the , authority 853

       competent to impose penalties. Rule 1706 enumerates the causes for which
a railway servant may be dismissed from service, namely, (1) conviction by a
criminal court or by a court martial, (2) serious misconduct, (3) neglect of
duty resulting in or likely to result in loss to Government or to a Railway
administration, or danger to the lives of persons using the railway, or (4)
insolvency or habitual indebtedness, and (5) obtaining employment by the
concealment of his antecedents, which would have prevented his employment in
railway service had they been known before his appointment to the authority
appointing him. Procedure for dismissal is set out in r. 1707. "Removal from
Service" is dealt with by r. 1708 and the procedure for removal is regulated by
r. 1709. "Suspension" is the subject matter of r. 1711 and the procedure for
imposing the other penalties is contained in r. 1712. "Reduction to lower post"
is governed by r. 1714 which enjoins that when a railway servant is reduced for
inefficiency or misconduct to a lower post in timescale or to a lower grade or
to a lower stage in a time-scale the authority ordering the reduction must state
the period for which it will be effective and whether, on the expiry of that
period, it will operate to postpone future increments or to affect the railway
servant's seniority and, if so, to what extent. Rule 2310 provides that no
pension is to be granted to an officer dismissed or removed for misconduct,
insolvency or inefficiency although compassionate allowances may be granted in
deserving cases. Thus the Indian Railway Establishment Code also, like the 1930
Classification Rules, provides for different punishments and the procedure to be
followed for inflicting the same and the three graver punishments of dismissal,
removal and reduction are dealt with separately, and special provisions are made
regulating the procedure which must be followed before those graver forms of
punishments can be inflicted.

       In exercise of the powers conferred by sub-s. (2) of s. 241 of the 1935
Act, the Governor-General made certain rules called the Central Civil Service
(Temporary Service) Rules, 1949 (hereinafter referred to as

       854

       the 1949 Temporary Service Rules). These rules applied to all persons who
held a civil post under the Government of India and who were under the
rulemaking control of the Governor-General, but who did not hold a lien on any
post under the Government of India or any Provincial Government, but they did
not apply to several categories of persons, including the railway servants. By
those rules some protection had been given even to persons who did not
substantively hold permanent posts. Thus under r. 6 the services of those
persons whose services had ripened into what was therein defined as quasi-
permanent service could only be terminated in the same circumstances and in the
same manner as those of Government servants in permanent service could be
terminated or when the appointing authority certified that reduction had
occurred in the number of posts available to Government servants -not in
temporary service. Further protection was given by the two provisos to that
rule. By r. 5, however, the employment of persons holding temporary service
could be terminated at any time by a month's notice.

       Just to complete the history of the service rules reference may be made
to the all-India Service (Discipline and Appeal) Rules, 1955 which were
promulgated by the Central Government in September, 1955, after consultation
with the State Governments. For our present purpose it is enough to say that rr.
49 and 55 of the 1930 Classification Rules were substantially reproduced in rr.
3 and 5 respectively of these 1955 Rules except that the Explanation to r. 49
has been elaborated and the results of the judicial decisions have been
incorporated therein. In exercise of powers conferred by Art. 309 and Art. 148
(5) of the Constitution the President, on February 28, 1957, made the Central
Civil Services (Classification, Control and Appeal) Rules 1957. Rule 13 of these
Rules corresponds to r. 49 of the 1930 Classification Rules, and r. 3 of the
1955 Rules and r. 15 substantially reproduces r. 55 of the 1930 Classification
Rules and r. 5 of the 1955 Rules.

       The scheme of the Service Rules may now be broadly summarised as follows:
They enumerated different 855

       punishments which, for good and sufficient reason, might be inflicted on
Government servants and they prescribed special procedure which had to be
followed before the three major punishments, of dismissal, removal or reduction
in rank could be meted out to the Government servants. Thus rr. X and XIII of
the 1920 Classification Rules prescribed several kinds of punishments to which
the different classes of Government servants could be subjected and r. XIV of
those rules laid down certain special procedure for cases in which the three
major punishments of dismissal, removal or reduction of an officer were
contemplated. Likewise r. 49 of the 1930 Classification Rules reproduced with
some additions the punishments prescribed in rr. X and XIII and r. 55 of the
1930 Classification Rules provided similar procedural protection as had been
prescribed by r. XIV of the 1920 Classification Rules before the punishments of
dis- missal, removal or reduction in rank could be inflicted. The scheme of the
rules applicable to the railway servants was similar in substance. Thus rr. 1702
to 1714 and 2310 of the Indian Railway Code substantially reproduce the
provisions of rr. 49 and 55 of the 1930 Classification Rules. In short, the
service rules, out of the several categories of punishments, selected the three
graver punishments of dismissal, removal and reduction in rank and laid down
special procedure for giving protection to the Government servants against the
infliction of those three major punishments.

       It will be recalled that the opening words of s. 96-B (1) of the 1915 Act
were-" Subject to the provisions of this Act and the Rules made thereunder " and
subs. (4) confirmed the service rules that were then in force. In spite of this
it was held in R. Venkata Rao v. Secretary of State for India (1) with reference
to the rules made under s. 96-B of the 1915 Act that, while that section assured
that the tenure of office, though at pleasure, would not be subject to
capricious or arbitrary action but would be regulated by the rules, it gave no
right to the appellant, enforceable by action, to hold his office in accordance
with those rules. It

       (I) (1936) L.R. 64 I.A. 55.

       856

       was held that s. 96-B of the 1915 Act and the rules made thereunder only
made provision for the redress of grievances by administrative process. As if to
reinforce the effect of that decision, the opening words quoted above were, in
s. 240(1) of the 1935 Act, replaced by the words " Except as expressly otherwise
provided by this Act". The position of the Government servant was, therefore,
rather insecure, for his office being held during the pleasure of His Majesty
under the 1915 Act as well as under the 1935 Act the rules could not over-ride
or derogate from the statute and the protection of the rules could not be
enforced by action so as to nullify the statute itself. The only protection that
the Government servant had was that, by virtue of s. 96- B(1), they could not be
dismissed by an authority subordinate to that by which they were appointed. The
position, however, improved to some extent under the 1935 Act which, by s.
240(3), gave a further protection in addition to that provided in s. 240(2)
which reproduced the protection of s. 96-B(1) of the 1915 Act. In other words
the substance of the protection provided by r. 55 of the 1930 Classification
Rules which required a special procedure to be followed before the three major
punishments of dismissal, removal or reduction in rank out of the several
punishments enumerated in r. 49 was bodily lifted, as it were, out of the Rules
and embodied in the statute itself so as to give a statutory protection to the
Government servants. These statutory protections have now become constitutional
protections as a result of the reproduction of the provisions of s. 240 in Arts.
310 and 311 of our Constitution.

       It follows from the above discussion that both at the date of the
commencement of the 1935 Act and of our Constitution the words " dismissed ", "
removed " and " reduced in rank ", as used in the service rules, were well
understood as signifying or denoting the three major punishments which could be
inflicted on Government servants. The protection given by the rules to the
Government servants against dismissal, removal or reduction in rank, which could
not be en. forced by action, was incorporated in sub-ss. (1) and 857

       (2) of s. 240 to give them a statutory protection by indicating a
procedure which had to be followed before the punishments of dismissal, removal
or reduction in rank could be imposed on them and which could be enforced in
law. These protections have now been incorporated in Art. 311 of our
Constitution. The effect of s. 240 of the 1935 Act reproduced in Arts. 310 and
311, as explained by this Court in S. A. Venkataraman v. The Union of India (1),
has been to impose a fetter on the right of the Government to inflict the
several punishments therein mentioned. Thus under Art. 311(1) the punishments of
dismissal, or removal cannot be inflicted by an authority subordinate to that by
which the servant was appointed and under Art. 311(2) the punishments of
dismissal, removal and reduction in rank cannot be meted out to the Government
servant without giving him a reason. able opportunity to defend himself. The
principle embodied in Art. 310(1) that the Government servants hold office
during the pleasure of the President or the Governor, as the case may be, is
qualified by the provisions of Art. 311 which give protection to the Government
servants. The net result is that it is only in those cases where the Government
intends to inflict those three forms of punishments that the Government servant
must be given a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him. It follows, therefore, that if the
termination of service if; sought to be brought about otherwise than by way of
punishment, then the Government servant whose service is so terminated cannot
claim the protection of Art. 311(2) and the decisions cited before us and
referred to above, in so far as they lay down that principle, must be held to be
rightly decided. The foregoing conclusion, however, does not solve the entire
problem, for it has yet to be ascertained as to when an order for the
termination of service is inflicted as and by way of punishment and when it is
not. It has already been said that where a person is appointed substantively to
a permanent post in

       (1) [1954] S.C.R. 1 I50-

       858

       Government service, he normally acquires a right to hold the post until
under the rules, he attains the age of superannuation or is compulsorily retired
and in the absence of a contract, express or implied, or a service rule, he
cannot be turned out of his post unless the post itself is abolished or unless
he is guilty of misconduct, negligence, inefficiency or other disqualifications
and appropriate proceedings are taken under the service rules read with Art.
311(2). Termination of service of such a servant so appointed must per se be a
punishment, for it operates as a forfeiture of the servant's rights and brings
about a premature end of his employment. Again where a person is appointed to a
temporary post for a fixed term of say five years his service cannot, in the
absence of a contract or a service rule permitting its premature termination be
terminated before the expiry of that period unless he has been guilty of some
misconduct, negligence, in. efficiency or other disqualifications and
appropriate proceedings are taken under the rules read with Art. 311(2). The
premature termination of the service of a servant so appointed will prima facie
be a dismissal or removal from service by way of punishment and so within the
purview of Art. 311(2). 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 appoint- ing authority as fit for
employment in a quasipermanent capacity, such person, under r. 3 of the 1949
Temporary Service Rules, is to be deemed 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 posts available for Government servants
not in permanent service. Thus when the service of a Government servant holding
a post temporarily ripens into a quasi-permanent service as defined in the 1949
Temporary Service Rules, he acquires a right to the post although his
appointment was initially temporary and, therefore,

       859

       the termination of his employment otherwise than in accordance with r. 6
of those Rules will deprive him of his right to that post which he acquired
under the rules and will prima facie be a punishment and regarded as a dismissal
or removal from service so as to,. attract the application of Art. 311. Except
in the three cases just mentioned a Government servant has no right to his post
and the termination of service of a Government servant does not, except in those
cases, amount to a dismissal or removal by way of punishment. Thus where a
person is appointed to a permanent post in a Government service on probation,
the termination of his service during or at the end of the period of probation
will not ordinarily and by itself be a punishment, for the Government servant,
so appointed, has no right to continue to hold such a post any more than the
servant employed on probation by a private employer is entitled to do. Such a
termination does not operate as a forfeiture of any right of the servant to hold
the post, for he has no such right and obviously cannot be a dismissal, removal
or reduction in rank by way of punishment. This aspect of the matter is
recognised in the Explanation to r. 49 of the 1930 Classification Rules which
correspond to the Note to r. 1702 of the Indian Railway Code and r. 3 of the
1955 Rules and r. 13 of the 1957 Rules, for all those rules expressly say that
the termination of such an appointment does not amount to the punishment of
dismissal or removal within the meaning of those rules. Likewise if the servant
is appointed to officiate in a permanent post or to hold a temporary post other
than one for a fixed term, whether substantively or_on probation or on an
officiating basis, under the general law, the implied term of his employment is
that his service may be terminated on reasonable notice and the termination of
the service of such a servant will not per se amount to dismissal or removal
from service. This principle also has been recognised by the Explanations to r.
49 of the 1930 Classification Rules correspoding to the Note to r. 1702 of the
Indian Railway Code and r. 5 of the 1949 Rules and r. 3 of

       109

       860

       the 1955 Rules and r. 13 of the 1957 Rules. Shortly -put, the principle
is that when a servant has right to a post or to a rank either under the terms
of the contract of employment, express or implied, or under ,,the rules
governing the conditions of his service, the termination of the service of such
a servant or his reduction to a lower post is by itself and prima facie a
punishment, for it operates as a forfeiture of his right to hold that post or
that rank and to get the emoluments and other benefits attached thereto. But if
the servant has no right to the post as where be is appointed to a post,
permanent or temporary either on probation or on an officiating basis and whose
temporary service has not ripened into a quasi- permanent service as defined in
the Temporary Service Rules, the termination of his employment does not deprive
him of any right and cannot, therefore, by itself be a punishment. One test for
determining whether the termination of the service of a Government servant is by
way of punishment is to ascertain whether the servant, but for such termination,
had the right to hold the post. If he had a right to the post as in the three
cases hereinbefore mentioned, the termination of his service will by itself be a
punishment and he will be entitled to the protection of Art. 311. In other words
and broadly speaking, Art. 311 (2), will apply to those cases where the
Government servant, had he been employed by a private employer, will be entitled
to maintain an action for wrongful dismissal, removal or reduction in rank. To
put it in another way, if the Government has, by contract, express or implied,
or, under the rules, the right to terminate the employment at any time, then
such termination in the manner provided by the contract or the rules is, prima
facie and per se, not a punishment and does not attract the provisions of Art.
311.

       It does not, however, follow that, except in the three cases mentioned
above,, in all other cases, termination of service of a Government servant who
has no right to his post, e.g., where he was appointed to a post, temporary or
permanent, either on probation or on an officiating basis and had not acquired a
quasi.

       861

       permanent status, the termination cannot, in any circumstance, be a,
dismissal or removal from service by way of punishment. Cases may arise where
the Government may find a servant unsuitable for the post on acconut of
misconduct, negligence, inefficiency or, other disqualification. If such a
servant was appointed to a post, permanent or temporary, either on probation or
on an officiating basis, then the very transitory character of the employment
implies that the employment was terminable at any time on reasonable notice
given by the Government. Again if the servant was appointed to a post, permanent
or temporary, on the express condition or term that the employment would be
terminable on say a month's notice as in the case of Satish Chander Anand v. The
Union of India (1), then the Government might at any time serve the requisite
notice. In both cases the Government may proceed to take action against the
servant in exercise of its powers under the terms of the contract of employment,
express or implied, or under the rules regulating the conditions of service, if
any be applicable, and ordinarily in such a situation the Government will take
this course. But the Government may take the view that a simple termination of
service is not enough and that the conduct of the servant has been such that he
deserves a punishment entailing penal consequences. In such a case the
Government may choose to proceed against the servant on the basis of his
misconduct, negligence, inefficiency or the like and inflict on him the
punishment of dismissal, removal or reduction carrying with it the penal
consequences. In such a case the servant will be entitled to the protection of
Art. 311(2).

       The position may, therefore, be summed up as follows: Any and every
termination of service is not a dismissal, removal or reduction in rank. A
termination of service brought about by the exercise of a con'. tractual right
is not per se dismissal or removal, as has been held by this Court in Satish
Chander Anand v. The Union of India (supra). Likewise the termination of service
by compulsory retirement in terms of a

       (1) [1953] S.C.R. 655.

       862

       specific rule regulating the conditions of service is not tantamount to
the infliction of a punishment and does not attract Art.; 311(2), as has also
been held by this Court in Shyam Lal v. The State of Uttar Pradesh (I). ,In
either of the two abovementioned cases the termination of the service did not
carry with it the penal consequences of loss of pay, or allowances under r. 52
of the Fundamental Rules. It is true that the misconduct, negligence,
inefficiency or other disqualification may be the motive or the inducing factor
which influences the Government to take action under the terms of the contract
of employment or the specific service rule, nevertheless, if a right exists,
under the contract or the rules, to terminate the service the motive, operating
on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v.
Union of India (supra), wholly irrelevant. In short, if the termination of
service is founded on the right flowing from contract or the service rules then,
prima facie, the termination is not a punishment and carries with it no evil
consequences and so Art. 3 1 1 is not attracted. But even if the Government has,
by contract or under the rules, the right to terminate the employment without
going through the procedure prescribed for inflicting the punishment of
dismissal or removal or reduction in rank, the Government may, nevertheless,
choose to punish the servant and if the termination of service is sought to be
founded on misconduct, negligence, inefficiency or other disqualification, then
it is a punishment and the requirements of Art. 311 must be complied with. As
already stated if the servant has got a right to continue in the post, then,
unless the contract of employment or the rules provide to the contrary, his
services cannot be terminated otherwise than for misconduct, negligence,
inefficiency or other good and sufficient cause. A termination of the service of
such a servant on such grounds must be a punishment and, therefore, a dismissal
or removal within Art. 311, for it operates as a forfeiture of his right and he
is visited with the evil consequences of loss of pay and allowances. It puts an
indelible stigma on the officer (1) [1955] I S.C.R. 26.

       863

       affecting his future career. A reduction in rank likewise may be by way
of punishment or it may be an innocuous thing.' If the Government servant has a
right to a particular rank, then the very reduction from that rank will operate
as a penalty, for he will then lose the emoluments and privileges of that rank.
If, however, he has no right to the particular rank, his reduction from an
officiating higher rank to his sub-: stantive lower rank will not ordinarily be
a punishment. But the mere fact that the servant has no title to the post or the
rank and the Government has, by contract, express or implied, or under the
rules, the right to reduce him to a lower post does not mean that an order of
reduction of a servant to a lower post or rank cannot in any circumstances be a
Punishment. The real test for determining whether the reduction in such cases is
or is not by way of punishment is to find out if the order for the reduction
also visits the servant with any penal consequences. Thus if the order entails
or provides for the forfeiture of his pay or allowances or the loss of his
seniority in his substantive rank or, the stoppage or postponement of his future
chances of promotion, then that circumstance may indicate that although in form
the Government bad purported to exercise its right to terminate the employment
or to reduce the servant to a lower rank under the terms of the contract of
employment or under the rules, in truth and reality the Government has
terminated the employment as and by way of penalty. The use of the expression "
terminate " or " discharge " is not con, elusive. In spite of the use of such
innocuous expressions, the court has to apply the two tests mentioned above,
namely, (1) whether the servant had a right to the post or the rank or (2)
whether he has been visited with evil consequences of the kind hereinbefore
referred to ? If the case satisfies either of the two tests then it must be held
that the servant has been punished and the termination of his service must be
taken as a dismissal or removal from service or the reversion to his substantive
rank must be regarded as a reduction in rank and if the requirements of the
rules and Art.311, which give protection to Government servant

       864

       have not been complied with, the termination of the service or the
reduction in rank must be held to be wrongful and in violation of the
constitutional right of the servant. Applying the principles discussed above it
is quite clear that the petitioner before us was appointed to the higher post on
an officiating basis, that is to say, he was appointed to officiate in that post
which, according to Indian Railway Code, r. 2003 (19) corresponding to F.R. 9
(19) means, that he was appointed only to perform the duties of that post. He
had no right to continue in that post and under the general law the implied term
of such appointment was that it was terminable at any time on reasonable notice
by the Government and, therefore, his reduction did not operate as a forfeiture
of any right and could not be described as reduction in rank by way of
punishment. Nor did this reduction under Note 1 to r. 1702 amount to his
dismissal or removal. Further it is quite clear from the orders passed by the
General Manager that it did not entail the forfeiture of his chances of future
promotion or affect his seniority in his substantive post. In these
circumstances there is no escape from the conclusion that the petitioner was not
reduced in rank by way of punishment and, therefore, the provisions of Art. 311
(2) do not come into play at all. In this view of the matter the petitioner
cannot complain that the requirements of Art. 311 (2) were not complied with,
for those requirements never applied to him. The result, therefore, is that we
uphold the decision of the Division Bench, although on somewhat different
grounds. This appeal must, therefore, be dismissed with costs.

       BosE. J.-With great respect I cannot agree that Art. 311 is not attracted
in this case.

       I agree with my Lord that Art. 311 applies to all classes of Government
servants mentioned in it and that it makes no difference whether they are
permanent, quasi-permanent, officiating, temporary or on probation. There may be
good reasons for having all these shades of difference in the civil services and

       865

       among those who bold civil posts in the Union and the States but I am
clear that the protections afforded by Art. 311 and other parts of the
Constitution cannot be nullified or whittled down by clever phrasing and subtle
ingenuity. I am also clear that

   " Except as expressly provided by this Constitu- tion, every person
etc............ holds office during the pleasure of the President...............
"

       These words are absolute and leave no room for inference or deduction.
The " pleasure " can only be controlled by some express provision in the
Constitution. One of them is in Art. 310(2), another in Art. 31 1. There are
also others, such as Arts. 124(4) and 217(1)(b), but it is not necessary to
enumerate them because I am only concerned with the broad principle here.

       I also agree with my Lord that the words, dismissal, removal and
reduction in rank, used in Art. 311 have special meaning. I would not have said
this had it not been for ambiguities that arise otherwise. We were faced with
that in Satish Chandra Anand v. Union of India (1), where we had to construe the
words " dismissal " and " removal " and to determine whether they were merely
tautologous or bad been introduced to emphasise a difference in meaning.
According to the dictionary, they mean the same thing or, at any rate, have
subtle shades of distinction that are meaningless in the context in which they
are used. It was therefore necessary to look to the surrounding circumstances
and determine whether they had acquired special technical significance at the
date of the Constitution. For that purpose, it was necessary to examine the
history of the conditions of service under the Crown and look to the various
statutes and rules then in force. Except for that, I do not think it would have
been proper to look at the rules for I cannot agree that the Constitution can be
construed by reference to Acts of the Legislature and rules framed by some
lesser authority and, in particular, to rules made and Acts passed after the
Constitution. (1) [1953] S. C. R. 655.

       866

       I agree with my Lord that Art. 311 applies when penal consequences ensue
from the dismissal or removal or reduction in rank, though I prefer to phrase
this in wider terms and say that the Article is attracted whenever a " right "
is infringed in the way in which I shall proceed to explain, for a right can be
infringed in that sort of way even when no penal consequences follow.

       I have used the word " right" but must hasten to explain that I use it in
a special sense. The " right " need not necessarily be justiciable nor need it
necessarily amount to a contract but, broadly speaking, it must be the sort of
"right " which, even when not enforceable in the courts, would form a good
foundation for a "Petition of Right" in England.

       It is as difficult to speak of "rights " (except those expressly
conferred by the Constitution) when one holds at " pleasure " as to speak of
"contracts." But they are convenient expressions to convey a particular thought,
provided the limitations imposed by the context are not forgotten.

       The word " contract" is used in Art. 310(2), but as these " contracts "
are as much subject to "pleasure" as any other engagement of service (except as
otherwise provided by the Constitution) they are not contracts in the usual
sense of the term; nor are the conditions of service that apply to Government
servants who do not serve under a special "contract". A contract that can be
determined at will despite an express condition to the contrary (and that is
what Art. 310(2) contemplates) is not a contract as usually understood; nor are
conditions of service that can be unilaterally varied without the consent of the
other it contracting party ", and even behind his back. But they are convenient
terms to convey a thought and that is the sense in which " contract " is used in
Art. 310(2) and the sense in which it has been used in some Privy Council
rulings. Now these " conditions of service " (and of course special " contracts
" as well) confer " rights " and though the conditions can be varied
unilaterally because of the " pleasure ", they cannot be ignored so

       867

       long as they are in force ; and if a dismissal, or removal, or reduction
in rank infringes one of these rights ", then, in my judgment, Art. 311 is
attracted.

       I said in Satish Chandra Anand's case (1), that the President and
Government are as free to enter into special contracts as any other person
provided they are consistent with the Constitution. That also applies to
conditions of service where there are no special " contracts ". Anything else
would be anomalous especially as anyone who serves under the Union or under a
State serves at " pleasure ". It is, therefore, possible for the President to
make " contracts " that are terminable in a particular way or at a particular
time or on the happening of a given event, provided, they do not offend the
Constitution ; and when they are so determined, they can, broadly speaking, be
called contractual terminations".

       Two such cases have already been before this court. In Satish Chandra
Anand's case (supra), it was a special " contract " terminable with a month's
notice on either side. In Shyam Lal v. State of Uttar Pradesh (2) it was a
condition of service that permitted compulsory retirement at a particular age.
Any other variation that does not offend the Constitution would be equally
permissible. These conditions confer a " right" on one side and correspondingly
reduce the ambit of the " rights " conferred by the " contract " on the other.
Therefore, when Government exercises one of their " rights " there is no
infringement of the other party's " rights " because to that extent he has none.
It follows that when, in a given case, Government has an option to adopt one of
two courses as, for example, to " dismiss " or " reduce " for misconduct and at
the same time to terminate or alter the service under a term of the " contract "
or because of a condition of the service, then, if it chooses to act under the
right conferred by the " contract ", Art. 311 is not attracted even though
misconduct is also present and even though that is the real reason for the
action taken. But, if Government chooses to adopt such a course, it must be
careful to see that no evil consequences

       (1) [1953] S.C.R. 655. (2) [1955] 1 S.C.R. 26. 110

       868

       will ensue over and beyond those that would ordinarily follow from a
normal termination or alteration when there is no misconduct or blame on the
part of the person affected. But I repeat that any such condition must be,
consistent with the Constitution and that no clever artifice or juggling with
words can destroy or whittle down the guarantees of Art. 311, or any other
Article for that matter.

       To my mind, the test must always be whether evil consequences over and
above those that would ensue from a " contractual termination " are likely to
follow. Were it otherwise, the blameless man against whom no fault can be found
would be at a disadvantage. It would be anomalous to bold that a man who has
been guilty of misconduct should have greater protection than a blameless
individual. But any man who is visited with evil consequences that would not
ensue in the case of another similarly placed, but free from blame, can, in my
opinion, claim the protection of Art.311. Now what happened in this case? The
appellant was appointed to an All-India service of the Union in August, 1924. He
has not been removed or dismissed from service, so he is still a member of an
All-India service.

       On July 2, 1951, he was appointed Assistant Superintendent of Railway
Telegraphs in class II service. On August 19, 1953, he was relieved of this
appointment and reverted to his substantive post in a class III appointment.
There can be no doubt that this was a reduction in rank. The only question is
whether it was so within the meaning of Art. 311 for, as I said earlier, these
words have special meaning and do not apply in every case where a person is
removed from a higher to a lower post.

       The argument on behalf of the Union of India is that the higher post to
which the appellant was appointed was temporary and that the appellant was only
officiating in it; and rules were cited to show that Government had the right,
under those rules, to shift the appellant from a higher to a lower post. I need
not consider this argument because we are all

       869

       agreed that Art. 311 applies even when the appointment is temporary, or
officiating and, on the view I take, it does not matter whether Government had
what I might call a " contractual right " to reduce because even if it had, it
exercised it in a way that evoked evil consequences over and above those that
would have ensued in a similar case where there was neither misconduct nor
blame.

       Our attention was directed to remarks in the appellant's confidential
reports and to various administrative notings on his files. All these are, in my
opinion, irrelevant. We are only concerned with the operative order made by the
proper authority competent to make it and with the consequences that ensue from
that order.

       In this case, the order of reversion dated August 19, 1953, is non-
committal. It merely says that Shri Bishambar Nath Chopra is appointed to
officiate in the appellant's place and that on relief the appellant will revert
to a lower rank. That in itself might be harmless but the order does not stand
alone and though the various administrative notings are irrelevant, the General
Manager's remarks on them, which form the real foundation of the order, cannot
be ignored because the sting lies there and the evil con- sequences of which I
speak flow from them. They are really part and parcel of the order and the two
must be read together. I say this because, quite obviously, the constitutional
guarantees of Art. 311 cannot be evaded by passing a non-committal order that is
innocuous and at the same time making another order in secret that would have
attracted Art. 311 had it been made openly. I am not suggesting that that was
done here or that the object was to evade Art. 311 by a secret manoeuvre. All I
am pointing out is that the consequences of Art. 311 cannot be evaded by
cleverly splitting up an order into two parts. Now what were those remarks? They
were endorsed on the appellant's file on June 11, 1953. The General Manager
said:

       " I am disappointed to read these reports. He 870

       should revert as a subordinate till he makes good the ,short-comings
noticed in this chance of. his as an officer."

       What does that mean ? In plain English it means that ,he is not to be
promoted to a like post until some competent officer chooses to think he has
made good his previous short-comings. That is an evil consequence over and above
that which would ensue in the case of what I may call again a " contractual
termination " of the engagement in. the higher post.

       It was virtually admitted in the arguments before us that a man who is
reduced in rank for misconduct for a particular period, say, one year or two
years, is being " punished " and therefore Art. 311 will apply. What difference
is there if the reduction is for an unspecified period instead of for one that
is certain ? In both cases, the possibility of promotion is stayed and whether
that is a " punishment" or a "penalty" it is, in my judgment, an evil
consequence over and above that which would ensue in a case where the man
"reduced" is faultless.

       In view of the almost frivolous resort that is sometimes made to Art. 311
1 want to guard against too wide an interpretation of what I have said. I do not
mean to imply that the reasons that lead to an order of reduction are relevant
when there is a "contractual right" to act in a particular way; nor do I mean to
imply that a mere recording of disappointment or dissatisfaction would attract
Art. 311 even if it is followed by a contractual termination of the engagement.
All that is not of the essence. The real test is whether additional evil
consequences are implicit in the order.

       It is here that I venture to dissent, with the very greatest respect,
from my Lord's construction of Art. 311. If I read his judgment aright, I gather
that his view, and that of my learned brothers, is that Art. 311 is confined to
the penalties prescribed by the various rules and that one must look to all the
relevant rules to determine whether the order is intended to operate as a
penalty or not. With deep respect, I do not think that the gist of the matter is
either the form

       871

       of the action or the procedure followed; nor do I think it is relevant to
determine what operated in the mind of a particular officer. The real hurt does
not lie in any of those things but in the consequences that follow and, in my
judgment, the protections of Art. 311 are not against harsh words but against
hard blows. It is the effect of the order alone that matters ; and in my
judgment, Art. 311 applies whenever any substantial evil follows over and above
a purely "contractual one". I do not think the article can be evaded by saying
in a set of rules that a particular consequence is not a punishment or that a
particular kind of action is not intended to operate as a penalty. In my judg-
ment, it does not matter whether the evil consequences are one of the
"penalties" prescribed by the rules or not. The real test is, do they in fact
ensue as a consequence of the order made ?

       I would allow the appeal with costs.

       BY THE COURT.-In accordance with the opinion of the majority, the appeal
is dismissed with costs. Appeal dismissed.