Commodore Commanding, Southern Naval Area, Cochin v. V.N. Rajan, AIR 1981 SC 965: (1981) 2 SCC 636: (1981) 3 SCR 165: (1981) 2 SCJ 85: (1981) Lab IC 605: 1981 (II) LLJ 1: (1981) 42 FLR 323: (1981) 1 SLR 656
Facts: The respondent, in the first instance, was appointed as a casual labourer for a month but was continued against an existing vacancy. He was later appointed as a labourer in a regular cadre in an existing vacancy. Sometime later he was promoted and appointed as Ammunition Repair Labourer, Grade II. Three years thereafter his services were terminated.
Issue : Whether termination of services of the respondent who was appointed to the post of Ammunition Repair Labourer Grade II (A.R.L. Grade II), when juniors were retained in service, was discriminatory and was in contravention of article 16 of the Constitution?
Judgment : In the Writ Petition the respondent attacked the termination order on two grounds, namely: (1) that he was appointed permanently to the post of A.R.L. Grade II; and (2) that persons junior to the respondent have been retained in service and, therefore, the termination of the services of the respondent without any reason whatsoever, is discriminatory and contravenes article 16 of the Constitution. In the counter-affidavit filed in the Writ Petition the appellant contended that the phraseology “regular cadre” does not imply as it may in some other instances in the employment of government, a substantive post, that the post in the “regular cadre” is also a purely temporary one and that the post of Ammunition Repair Labourer Grade II to which the respondent was promoted and appointed, was also on a temporary basis. The appellant denied that there was any discrimination in the termination of the services of the respondent. The learned Single Judge repelled the contention that the respondent had been permanently appointed to the post of A.R.L. Grade II on the ground that there is nothing in the order to show that the respondent had been appointed permanently to the post. Regarding the second ground urged by the respondent the learned Single Judge held, relying upon the Supreme Court’s decision in Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 and two other decisions of the Mysore and Andhra Pradesh High Court in Diddaiah v. State of Mysore, AIR 1967 Mys 223: 1968 (I) LLJ 794 and Jankiraman v. State of Andhra Pradesh, AIR 1959 AP 185: 1959 Andh LT 59, respectively that article 16 of the Constitution applies even to temporary government servants. The learned Judge observed that there is no denial of the fact that persons junior to the respondent have been retained in service and that there is nothing in the termination order, or in the counter affidavit filed by the respondent in the Writ Appeal to show that the respondent was guilty of any misconduct or was otherwise unfit to hold the post. The learned Judge further observed that in paragraph 8 of the counter-affidavit it has only been stated that the fact that other persons who are junior to the respondent are retained in service, would not confer any right on the respondent to continue in service. In this view the learned Judge held that the termination of the respondent’s services without assigning any reason was discriminatory and accordingly allowed the Writ Petition without costs. In the Writ Appeal filed under section 5 of the Kerala High Court Act, the Division Bench followed the decision in Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854: 1964 (I) LLJ 752, and agreed with the learned Single Judge that the appellant’s action in terminating respondent’s services is violative of article 16 of the Constitution. The learned Judges observed in their judgment that no reason at all was either alleged or proved as to why appellant chose to terminate the respondent’s services under rule 5 of the Central Services (Temporary Services) Rules, 1965 such as that it was administratively convenient to do so or that the respondent’s work or conduct was unsatisfactory or that it was a case of retrenchment and the respondent was chosen as the junior-most person. The learned Judges accordingly dismissed the Writ Appeal. The principle that even temporary government servants are entitled to the protection of article 311(2) in the same manner as permanent government servants if the government takes action against them by meting out one of the three punishments of dismissal, removal or reduction in rank, is well-settled. The Supreme Court has held in Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854, that temporary servants are also entitled to the protection of article 311(2) in the same manner as permanent government servants if the government takes action against them by meting out one of the three above punishments following the decision in Purshotam Lal Dhingra v. Union of India, (1958) SCR 828: AIR 1958 SC 36, and that this protection is only available where the discharge, removal or reduction in rank is sought to be infected by way of punishment and not otherwise. The same view has been reiterated by the Supreme Court in Manager, Govt. Branch Press v. D.B. Beliappa, AIR 1979 SC 429: (1979) 1 SCC 477, where it has been observed thus:
“……………. if the services of a temporary government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of article 16.”
Held : The respondent was only a temporary government servant and that even as a temporary government servant he is entitled to the protection of article 311(2) of the Constitution where termination involves a stigma or amounts to punishment. The decision to terminate the services of the respondent had been taken at the highest level on the ground of unsuitability of the respondent in relation to the post held by him and it is not by way of any punishment and no stigma is attached to the respondent by reason of the termination of service. In these circumstances the appeal is allowed and the judgment of the High Court is set aside. The appellant’s order terminating the services of the respondent is confirmed.