DBJAPADA DAS AND ANR

UNION° OF INDIA AND ORS.

April 11, 1980

[V. R. KRISHNA IYER, 0. C!IINNAPPA REDDY AND A. P. SEN, JJ.]

Coal Mines (IValionalisation Amendment) Act, 1976 (Act No. LXVll of 1976), Sections 3 (3) and 4, scope of-Whether Section 3 (3) offends Article 14 of the Cons; itution, inasmuch as in regard to Coal Mines, lVhere nlinuzg is prohibited by that provision, the work1nen are left in the cold, while in regard to nationalised coal n1ines the workmen are taken care of and benefits assured C -Private managements whether "deenzed custodians" under Section 5 of the Coal Mines Nationalist; itions Act, 1973.

Dismissing the Writ Petitions, the Court,

HELD : I. The provision contained in Section 3 ( 3) of Act LXVIl of 1976 is peremptory and the prohibition is mandatory because there is punishment provided for contravention of that provision. Breach of Section 3 (3) is made punishable with impriso!1lll<nt.

The 1976 Act totally prohibits w<>rking of any coal mines by any agency other than those which have been set out in Section 3 ( 3). Surely, there is no authority for the managements under whom the present petitioners are alleged to be workmen to operate coal mines in the face of the prohibition of the 1976 Act. Even for granting looses and their renewal by ; the State itself, the frown and force of the law stand four square between the mines and traction of coal by any but the agencies specified in section 3 (3) of the 1976 Act. [589F-G, 591A, B & CJ

2. Investigation of the Sta.te or . intimation by the private managements are obligatory under the appropriate legislation and in the absence of any iittima.. tion the presumption is that there are no such coal mines as are set up before the Court. What apparently has been done, if at all, is to d<> what has been described as 'scratching' that is sudace mining of coal bearing areas, destmctive of 1the natural resources of the nation without any thought for the morrow and without any reference to the pla.nned, phased programme of exploitation of coal for the benefit of the country in the public sector. The mines, if any, are illicitly being operated, there being no sanction of the law. It is precisely Ito prevent this mischief of slaugter mining that s.3 (3) was introduced and s.4 was enacted to make the activity punishable. 'I'he proscription is comprehen

sive and the penalty makes it imperative. When it is accepted that it is not permissible to operate these mines save by those specified in the 1976 stah1te, it necessarily follows that workmen, genuine or other, cannot claim any fundamental right to work these mines,,

[5910-G]

3. The prohibition of mining as under s. 3(3) of the 1976 Act, is in the public interest and indeed, the scheme shows that wherever public interest requires exploitation of coal mines it has been permitted in the public sector and even in the priva.te sector so far as certain specified industries, such as iron and steel industries, are concerned. The ban is part of a national policy, conceived for conservation of a vital national resource and the wisdom of the regulation of

fl..

DEJAPADA DAS v. UNION 587

fuel spurces and their planned user is beyond argument. Therefore, the language of s. 3 (3) is express, explicit and admits. of no exception. An aware Court will not relax when the language is peremptory, the legislation is charged with a critical purpose and even the commiserative cause of workmen-not wolves in sheep's clothing,-cannot override ithe larger cause of the nation.

No nation, no workmen.

[59!G-H, 592A]

4. It is audacious for the dubious managements under whom the petitioners are supposed to be innocent workmen to represent to the Court that they are "deemed custodians" working on behalf of the Central Government. [592D-E]

Under section 5, notifications are a sine qua non fori custodianship, actual or deemed and absent such notification taking over management no private agency can self-style. itself as "deemed custOOian".

Therefore, the manage ments.other than those specified in section 3(3) of the 1976 Act, can not claim to extract coal from any coal mines.

If this be so, no one can . cla.im as a workman. although in public interest, although it is imperative that such operation 'should stop.

[593E-F]

 S. There is no violation of Article 14 of the Constitution visavis the workmen concerned assuming them to be real workmen.

After the dismissal of the management's \\'rit petitions, the argument that the Act impugned is ultra vires vis a vis workmen is a daring legal workmanship. If a larger Bench of this Court has already upheld the vires of a statute the discovery of a new argument cannot invalidate that decision. That pr6position will make the binding effect of precedents, read in the light of Art. 141 a vanishing cream once a novel thought strikes a legal brain.

[593FH]

The question of discrimination between two classes of workmen hardly arises because one set of mines has been closed down validly.

If the closure is valid, no oneemployed there has a right to force it open on the score of discrimination.

Denial of lay.off or other benefits belong to a different jurisdiction. If any \VOrkmen are really aggrieved that their interests are not pro tected and that their future is in jeopardy, it is certainly open to them to make represep.tation to the Central Government for consideration of their lot. and certainly a welfare State will give due consideration for such representation if it is satisfied that the grievance is genuine.

[594A-B]

6. Section 3 (3) of the 1976 Act being mandatory and having been held constitutional by this Court, it is no longer permissible for any court in India to appoint a receiver or otherwise permit extraction of coal or coking ooal. [594D-El

ORIGINAL JURISDICTION: Writ Petition Nos. 1311, 11269-70, 1113, 1109, 1479-1480, 924-925, 1478, 1250-1251, 1219, 926-927, 1072-1076, 1565, 1652-1654, 1434-1435, 1648, 1306-1310, 1312 1314, 1590-1591, 1588-1589 of 1979 and 400, 192, 448 and 462 of 1980.

(Under Article 32 of t11e Constitution)

A. K. Sen and S. K. Sinha for the Petitioners in WP Nos. 1306- H 1314/79, 1434, il 13, 1109, 1250-1251, 1219, 1072-1076, 1565, 1652-1654, 1435/79 and 192/80.

5-_UPREME COURT REPORTS

[1980] 3 S.C.R.

A K. N. Choubey and A. K. Srivastava for the Petitioners in WP

Nos. 1269-1270, 1590-1591, 1588-1589, 924-925, 926-927 /79.

M. P. !ha for the Petitioners in W.P. 1648'/79.

A. K. Ganguli, for the Petitioner in W.P. Nos. 1479~1480/79.

Arun Madan' for the Petitioners in W.P. No. 400/80.

S. N. !ha for the Petitioners in W.P. No. 488/80.

K. N. Choubey and Mukul Mudgal for the Petitioners in W.P. 462180.

Lal Narain Sinha Att. Genl., M. K. Banerjee Addl. Sdl. Genl., and Miss A. Subhashini for the Respondent Union of India, Central Coal Fields, Easter Coal Field in WP. Nos. 1307, 1310, 1312, 1314 and Respondent 3 in W.P. Nos. 1308, 1588, 1589, 1434, 1072-1076/79.

Lal Narain Sinha Att. Genl. and U. p. Singh for the Respondents, State of Bihar and Its officials in W.P. Nos. 1588-89, 1434, 1109, 924-925, 1250-1251, 926-927, 1219, 1250-1251, 1072, 1290-91, 1648, 1479-80, 1073-1074, 1565/79 and 400, 192, 488 and 462/80.

Lal Narain Sinha Att. Genl. and Rathin Dass for the Respondents (West of Bengal) in W.P. Nos. 1306-1314, 1073-1074179.

P. K. Chatterjee for the State of West Bengal in W.P. 1072/79.

A. K. Srivastava for. the Caveator/Respondent No. 4 in W.P.

Nos. 1652-1654 of 1979.

The Judgment of the Court was delivered by

KRISHNA IYER, J. 'Survival after death' is the expression that aptly describes these writ petitions relating to coal mining by private agencies long after a prohibitory legislation and an order by this Court repelling the challenges to the vires of that Act. Parliament by the Coal Mines (Nationalisation) Amendment Act, 1976 (Act No.

LXVII of 1976) (For short, the 1976 Act) totally prohibited all mining of coal save by instrumentalities set out in s. 3, sub-s. (3) which we may excerpt here :

(3) On and from the commenc, ement of Section 3 of the Coal Mines (Nationalisation) Amendment Act, 1976.-

(a) no person, other than- 8

(i) the Central Governmerrt or a Government company or a corporation owned, managed or controlled by the Central Government, or

' 1

(ii) -a person to whom a sub-lease, referred to in the .

proviso to cl. ( c), has been granted by any such Government, compariy or corporation, or

(iii) a company engaged in the production of iron and. steel shall carry on coal mining operation, in India.; in any form;

(b) excepting the mining leases granted before such commencement in favour of the Government, company or corporation, referred to in clause (a), and any sub-lease granted by any such Government, company or corporation, all other mining leases and sub-leases in fo.:rce immediately before such commencement, shall, in so far as they relate to the winning or mining of coal, stand terminated;

( c) no lease for winning or mini'ng coal shall be granted in favour of any person other than the Government, company or corporation, referred to in clause (a). /

Provided that the Government, company or corporation to whom a lease for winning or mining coal has been granted may &rant a sublease to any person in any area on such terms and conditions as may

be eipecifiaj in the instrument granting the sub-lease, if the Govern- E ment, company or corporation is satisfied that-

(i) the reserves of coal in the area are in isolated small pockets or are not sufficient for scientific and economical development in a co-ordinated and integrated manner, and

(ii) the coal produced by the sub-lease will not be required to be transported by rail.

It is obvious that the provision is peremptory and the prohibition is mandatory because there is punishment provided for contravention of that provision. Section 4(1) of the 1976 Act makes a breach of s. 3 (3) punishable with imprisonment.

This broad spectrum ban in law arrested the extraction of coal and was naturally assailed as ultra vires by the managements themselves in writ petitions under !\rt. 32. A bench of seven judges of this court heard erudite and elaborate arguments, at the e'nd of which the writ petitions were dismissed. But it is not unusual for many litigants 'even though vanquished, to argue still'. Here, however, the challenge and challenger are. of different colour. For, the petitioners before us

11'

claim to be workmen who are. thrown out of employment on account of the 197 6 Act and lament in this Court that they are discriminated. against and on that score the law is violative of Art. 14 of the Constitution. The plea put for, ward is that in regard to nationalised coal mines the workmen are taken care of and their benefits assured, while in regard to coal mines where milling is prohibited by s. 3 (3) of the 1976 Act the workmen are left in the cold. This is stated to be discrimination between workmen and workmeri, thus contraveniug the mandate of equality before the law. Maybe, the writ missiles of the managements proved damp squibs but the workers undaunted by that rebuff, want to try a new weapon of ultra vires. The coal will go to the employers and the wages to the workers.

The Union of India resists this relief and contends that the writ petitioners are mere reincarnations of the old managements which have fought and lost and are masquerading as workmen so as to facilitate a second challenge. The State asserts that clandestine coal mining mafia having been stopped, these racketeers are playing the maricha game through bogus workers in tears. Without going into the merits of this avernment we may state that every other conceivable objection to the validity of the 1976 Act and other sister enactments had been urged in vain before the seven judges' bench. Now the alleged workmen are complaining of discriminatory denial of benefits to one class of workers. The Union df India counters this plea as factually a ruse for clandestine mining operations by management and legaUy a second battle after the legal Waterloo, hoping against hope that there is nothing to lose in a gamble. Even if a spell of stay were got the gain will outweigh possible losses in litigation. Indeed, the State's contention is that considerable losses to Government and traumatic consequences on the nation are being daily inflicted by such clandestine operations. The whole mischief contemplated by the 1976 Act is being continued under the guise of invalidity of the legislation and, alternatively, by going to court and getting receivers appointed so that a legal colour is imparted to lawless depradations.

It is true that nationalisation of coal, as a policy, has been evolved over the seventies. In the beginning, the management of coal mines

was taken over and at a later stage ownership itself vested in the Union of India by virtue of ownership of all coal mines is the simple and incontrovertible fact emerging from the bunch of legislation we have' been taken through. We are not going into the catena of enactments and their Gequence covering this question, because they are bei'ng discussed in greater detail and fuller depth in the comprehensive judgment where , reasons have yet to be given but the result, by way

:....--.

of brief order, has already been announced. Suffice it to say that the 1976 Act totally prohibits working of any coal mines by any agency other than those which have been set out in s. 3(3). Surely, there is oo authority for the managements under whom the present petitioners are alleged to be workmen to operate coal mines in the face of the prohibition in the, 1976 Act. There is a point of dispute raised by the Union of India that the managements which have come up before this Court do not have even leases under the Mines a'nd Minerals (Regulation and Development) Act, 1957. This is controverted by the other side but we may side-step that issue because it is not essential for the decision of this case. For one thing, no such lease is before us. For another, what is relied on i'n some cases is hukumnamas which cannot do duty for leases. Even granting leases and their renewal by the State itself as is asserted in a few cases, the grown and force of the Jaw stand four square between the mines and extraction of coal by any but the agencies specified in s.3(3) of the 1976 Act.

It is common ground that there is no specification of the coal mines in question i'n the schedule to the nationalisation legislation of 1973, nor is there any specific notification relating thereto. Investigation by the State or intimation by the private managements are obligatory under the appropriate legislation and in the absence of any intimation-none has been produced before us-we have to presume that these are no such coal mines as are set up before us. What apparently has been done, it at all, is to do what has been described as 'scratching that is surface mining of coal bearing areas, destructive of thei

natural resonrces of the nation without any thought for the morrow and without any reference to the planned, phased programme of exploitation of coal for the benefit of the country in the public sector.

We are satisfied that on the materials placed before us in all these cases, the mines, if a'ny, are illicitly being operated, there being no sanction of the Jaw. It is precisely to prevent this mischief of slaughter mining that s. 3 (3) was introduced and s. 4 was enacted to make the activity punishable. The proscription is comprehensive and the penalty makes it imperative. Once we' accept the position that it is not permissible to operate these mines save by those specified in the 1976 statute, it necessarily follows that wor);:men, genuine or other, cannot claim any fundamental right to work these mines. The prohibition of mining coal except as under s. 3(3) of the 1976 Act, is in the public interest and indeed, the scheme shows that wherever public interest requires exploitation of coal mines it has been permitted in the public sector and even in the private sector so far as certai.n specified industries~ such as iron and steel industries, are concerned. The ban is part of a

national policy, conceived for conservation of a vital national resource and the wisdom of the regulation of fuel sources and their planned user is beyond argument. Therefore, the language of s. 3(3) is express, explicit and admits of no exception. An aware court will not relax when the language is peremptory, the legislation is charged with a critical purpose and even the commiserative cause of workmen-not wolves in heep's clothing. as is asserted,-cannot override the larger cause of the nation. No nation no workmen;

Assuming for a moment that the private managements are, as Dr. Chitale and Shri A. K. Sen urged, deemed custodians within the c scheme of the legislative take-over, they are necessarily to operate oil behalf and under the direction of the Central Government. Here is the Central Government protesting, as stridently as it can, against the mining operations by the alleged mine-owners. Both the State and Central Governments are making common cause and demand that no

deemed custodian need work any mine on their behalf. How can a surrogate custodian exceed the command of the principal to stop mi_ning? The whole case of the Union of India is that a clandestine cluster a sort of coal mafia which may even have got sham registers of workmen-is defying Government and extracting coal on the sly. It is audacious for the dubious managements, under whom the petitioners are supposed to be innocent workmen, to represent to the court that they are 'deemed custodians', working on behalf of the Central Government.

 Nor are we prepared to accept the naive case that the petitioners' employers can be regarded as deemed custodians under s. 5. We may read s. 5 of the Coal Mines Nationalisation Act, 1973.

5. Power of Central Government to direct vesting of rights in a Government company :-

(1) Notwithstanding anything contained in Sections 3 and 4, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, wrth such terms and conditions as that Gover'.nmeut may think fit to impose, direct, by an order in writing, the right, title and interest of an owner in relation to a coal mine referred to in Section 3, shall; instead of continuing vest in the Central Government, vest in the Government company either on the date of publication of the direction or on such earlier or later date (not being a date earlier tnan the appointed day), as may be specified in the direction.

' .1 :ff.

. ··~

) •

(2) Where the right, title and i11terest of an owner in relating to a coal mines vest in a Government company under sub-section ( 1), the Government company shall on

and from the date of such vesting, be deemed to have become the lessee in relation to such coal mine as if a mining lease in relation to the coal mine had been granted to the Government company and the period of such lease shall be the entire period for which such lease could have been granted under the Mineral Concession Rules; and all the rights and liabilities of the Central Government in relation to such coal mine shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Governme"nt company.

(3) The provisions of sub-section (2) of section 4 shall apply to a lease which vests in a Government company as they apply to a lease vested in the Central Government and references therein to the "Central Government" shall be construed as references to the Government company.

The notification required under s. 5 authorising the mine to be worked, is admittedly absent. No such notification exists or has been hinted at or is existing. In the absence of the relevant notification contemplated by s. 5, it is impossible to postulate 'deemed custodianship'.

There are scheduled mines or notified mines, under the scheme of statutory management in the Management Take-over

Act.

Notifications a.re a sine qua non for custodian-ship, actual or deemed and absent such notification taking over management no private agency can self-style itself as deemed custodian. It follows that on any view of the matter the managements other than those specified under s. 3(3) of the 1976 Act can claim to extract coal from any coal mines. If this conclusion is sound, as we have demonstrated it is, the inference is irresistible that no one can claim to extract coal as a workman, although in public interest, it is imperative that such operation should stop. We hold that there is no violation of Art. 14 of the Constitution, vis-a-vis the workmen concerned assuming them to be real workmen.

We have grave doubts about the varacity of this p.iece of workmanship that the petitio'ners and others of their ilk are actual, not imaginary. Anyway, after the dismissal of the managements' writ petitions, the argument that the Act impugned is ultra vires vis a vis

workmen is a daring legal workmanship. If a larger bench of this Court has already upheld the vires of a. statute the discovery of a new argument cannot invalidate that decision.

That proposition will make the binding effect of precedents, read i'n the light of Art. 141, a vanishing cream once a novel thought strikes a legal brain.

The question of discrimination between two classes of workmen hardly arises because one set of mines has been closed down validly.

If the closure is valid, no' one employed there has a right to force it open on the score of discrimination, Denial of lay"off or other benefits belong to a different jurisdiction, If any workmen are really aggrieved that their interests are not protected and that their future is in jeopardy, it is certainly open to them t_o make representation to the Central Government for consideration of their lot, and certainly a welfare State will give due consideration for such representation if it is satisfied tlrat !he grievance is genuine.

We dismiss the Writ Petition with costs.

It has been mentioned on more than one occasion in this court that interlocutory orders have been passed, that Receivers have been appointed by civil courts, including High Courts, and that working of mines is licitly going on. In the face of the all-pervasive statutory prohibition which is peremptory in language and punishable in consequence, it is surprising that any Receiver could at all dare to work mines.

While we disapprove of that conduct we make it perfectly plain that there will be no more _sauction for any receiver or other officer of court to extract coal or coking coal from any mine in India.

Section 3 (3) of the 1976 Act being mandatory and having been held constitutional by this Court, it is no longer permissible for any court in India to appoint ll receiver or otherwise permit extraction of coal or cokiug.coal.

We vacate all interim orders forthwith.

It may be fair to the learned Attorney General, whose hunch we share to state that this wealth of "workers" writ petitions is a kind of litigative puppetry, the illicit mine exploiters being the puppetteers and those who figiire as worker petitioners being the puppets.

S.R.

Petitions dismissed.

( • __.__

• '

~- -

ANR

UNION° OF INDIA AND ORS

April 11, 1980

V. R. KRISHNA IYER

0. C!IINNAPPA REDDY

A. P. SEN, JJ.

Sections 3

Section 3

Article 14

Section 5

Section 3

Section 3

Section 3

section 3

s. 3(3)

s. 3

Central Government

section 5

section 3(3)

Article 14

Art. 141

Section 3

India

Article 32

A. K. Sen

S. K. Sinha

A K. N. Choubey

A. K. Srivastava

M. P. !

A. K. Ganguli

Arun Madan

S. N. !

K. N. Choubey

Mukul Mudgal

Lal Narain Sinha

M. K. Banerjee

A. Subhashini

U. p. Singh

State of Bihar

Lal Narain Sinha

Rathin Dass

P. K. Chatterjee

KRISHNA IYER

Amendment Act, 1976

s. 3

Section 3

Amendment Act, 1976

Central Governmerrt

Section 4(1)

s. 3

Art. 14

s. 3

Union of India

Union df India

s. 3(3)

s. 3

s. 4

s. 3(3)

s. 3(3)

Chitale

Central Governments

s. 5

s. 5

Coal Mines Nationalisation Act, 1973

Sections 3 and 4

Section 3

section 4

s. 5

s. 5

s. 3(3)

Art. 14

Art. 141

Section 3


MAHJ.Nl)RA NATII SHUKLA AND ORS.

STATE OFI BIHAR AND ORS. ETC.

April 11, 1980

[V. R. KRISHNA IYER, 0. CllINNAPPA REDDY AND A. p, SEN, JI.] a

Coal Mines (Natio1ialisatiQn) ACI, 1973 (Act 26 of 1973) as am<nded by Coal Mines (Nationalisation) Amendment Act, 1976, Section 3(3)-Whether the andment relates only to Coal Mines and not to Coking Coal Mines-

Worda 'Ind Phrases-MfQmng of "no person, other than the Central Govern ment ot a Govern111ent Compiiny or a , Corporation owned, managed or controll

ed iy. 1h1 CBntrql Governnient . .. , . , , ... shall carry on coal mining operatiom C, in lndla, In any form".

Diuni..n.1 the petitions, the Court

HELD : 1. "Coal Mine" in the 1976 Act includes coking coal mine and section 3 ( 3) of that Act clamps down the ban on extraction of Coking Cail

also

[601BCJ

Hiatory may illumine but cannot imprison interpretation.

It is true that in 1971 when Parliament was faced with a crisis regarding need for Coking coal in iron and steel industries, on an emergency footing was made solely confined to coking coal mines. The plan of the nation in regard to these natural resources was then embryonic and later final and there was step-by-step legislation to implement the policy on a phased programme. The culmmalion came in the blanket ban of 1976. [5991>-EJ

The expression in Section 3(3) is semantically sweeping and is wide in meaning so as to spare no class of coal, including even coking coal, because coking coal is a species of coal, coal itself being the genus.

Section 2(b) of the 1973 Act defines coal mine to mean "a mine in which there exists one or more seams of coal", Even a coking coal mine is a coal mine because the definition ii broa4 and this is clear from the definition of coldng coal mine in Section 3(c) of the Cokins Coal Mines (Nationalisation) Act, 1972, [600E-G]

Go1'iwi is QlDre precious, strategically speaking, than other forms of coal and it would be an error, qay a blunder, to prevent private extraction of common coal and to permit removal of coking coal. It would be pathetic llnd bathetic for any policy-maker to be so egregious. Parliament may err but not bo abJitrd! So cotllltUtd, it is obvious that coking coal, which is more im portantly ne<ded for th• nation than other supplies of coal, muat be the last to be squandered away by permitting it to be privately exploited.

[601ABJ

3. Even OSlluming there is a fire clay or other layer somewhere in the bowels ol the earth the statutory mandate is that once you come up on a coal seam you shall stop •xll'N:ting it to proceed beyond. May be some injury may be caused, fancied or real, but it is permissible for Parliament to make provision

11'

to prevent evasion of the PQrpoae of the statnte by prohibition of mining H other inincra!a wllic1' Jl!iY iJlci4entally \!cfeat the co.i IUltioisation lllWUll. [601l>-l')

18-289 SCJ/80

59B

SUPRIME COURT !\!!PORTS

(1980] 3 S.C.R.

4. Section 3(3) of the 1976 Act, being all.ino!usivoimdhhing been con stitutionally upheld it is no longer permissible for any Court in India to ~- appoint a receiver for or Qtherwise pe'rmit extraction of coal or coking coal.

The Court cannot :sanction the com-mission of a Crime:-

__ [6910, H1 602A]

ORIGINAL JuRismcnoN: Writ Petition Nos. 112-115, 175, 297, 194-198, 489-90, 459, 215, 2-3 and 432/80, 1477 of 19.79, 1516- B 1517/79.

(Un<ler Article 32 of the Constitution)

AND

SPECIAL LEAVE PETITION (CIVIL) NO. 2746 of 1980.

From the judgment and order dated the 11th February, 1980 of the High Court of Calcutta in Appeal from an Order No. Nil of 1980.

A. K. Srivastava for the Petitioners in WP Nos. 213 and 175/80 . . H.K. Puri for the Petitioners in. WP Nos. 1516, 1517,.1477/79 and 2-3 of 1980. M. P. !ha for the Petitioners in WP No. 297 /80.

Dr. Y. S. Chitale, B. P. Singh and Naresh K. Sharma for the Petitioners in WPs Nos. 112-115/80.

P. R. Mridul and D. P. Mukherjee for the Petitioners in WPs 489 490 and 432 of 1980.

E A. K. Sen, S. K. Sinha and C. K. Ratnaparkhi for the Petitioners in WPs. 194-198/80.

Dr. Y. S. Chitale, G. S. Chatterjee, and D. P. Mukherjee. for the Petitioners in SLP No. 2746 of 1980.

S. K. Jain for the Petitioners in WP No. 439/80.

M. K. Banerjee Addi. Sol. Genl. and Miss A. Subhashlni for the Respondent No. 3 in WP Nos. 112-115, 175/80.

Lal Narain Sinha Att. Genl. and U. P. Singh for the Respondent State of Bihar and Its Official in WP Nos. 112-115/80, 1477/79, 175, 213, 2-3, 459, 489-90/80 and SLP No. 2746/80.

M. K. Banerjee, Addi. Sol. Genl. and S. B. Sinha and D. P.

Mukherjee for the Respondent No. 9 in WPs 112-115 of 1980.

Rathi11 Das for the Respondents (State of West Bengal) in WPs.

Nos. 1516-1517/79.

S. S. Jauhar for the Interveners in WP No. 175/80.

ff The Judgment of the Court was delivered by~

KRISHNA IYER, J.-We have a hunch-we leave -it -at .that~ that these "Workers" writ petitions are a kind of litigatie pnppe:try,.

• +

·----e..

• I

the illicit mine exploiters being the puppeteers. This set of writ peti- A tions, where some private managements claim to have the right to extract coking coal on the score that prohibition enacted in the Coal Mines (Nationalisation) Amendment Act, 1976 does 'not affect or operate on coking coal mines, must be dismissed as devoid of deserts.

The short point sharply focussed by Dr. Chitale and echoed with B some variant notes by other counsel, in support of these writ petitions may be briefly stated thus.

According to him,. the history of coal nationalisation legislation in this country in the seventies of this cehtury shows that Parliament has treated coal and coking coal separately for legislative purposes in regard to taking over of management, nationalisation of onwership and the like. It all began with the year C 1971 when Parliament enacted the Coking Coal Mines (Emergency Provisions) Act, 1971 (hereinafter called the 1971 Act, for short).

H took over management of coking coal mines.

Iron and Steel are key industries requiring, importantly, coking coal for their very survival.

When Parliament found that coking coal was not being made available properly to the Industry on account of the unsatisfactory con- D duct of the private sector operating in this field, the entire management of coking coal mines was taken over on an emergency footing in the public interest by the 1971 Act.

Thereafter, with more deliberation and detailed investigation, the management of coking coal mines (and of other coal mines) was taken over by appropriate legislation.

Still E later, after mature planning and understanding of implications, Parliament enacted legislation for vesting of ownership of coking coal mines and eventually of all coal mines. The Management of coking coal was taken over by the Central Government under Coking Coal Mines (Emergency Provisions) Act, 1971. The management of all other coal mines was taken over by the Central Government under the Coal F Mines (Taking over of Management) Act, 1973.

The second step after management came under the control of the Central Government was the actual nationalisation of ownership itself. This state of planning led to Parliamentary enactments of Coking Coal Mines (N ationa-

Iisation) Act, 1972 (36 of 1972) and the Coal Mines (Nationalisation) Act, 1973 (26 of 1973). The sequence of events shows the G evolution of national policy in this regard. Coking coal, being abs<>- lutely essential, was first taken over urgently.

Later on, the entire coal industry came under Parliamentary consideration and management thereof was taken over.

Finally, the ownership of all coal mines, including coking coal mines, was vested in the Central Government and in certain instrumentalities created by Central Government. Thus H we see that the comprehensive plan behind coal nationil!isation did not permit of private agencies operating in the field.

Coking coal was

19-289 SCI/80

more strategic than ordinary coal having regard to its use for iron and steel industries. Nevertheless, it was found as a fact that on account of these mines being located in remote places and in jungles, especially in the State of Bihar and Bengal, the Central Government wanted to take effective steps to put an end to clandestine mining by any private agency. The jungle of laws haphzardly enacted partly helped the privateers get round the law and clandestinely or eveu through court receivers extract coal as there was big money in it.

Therefore, the 1976 Act was, enacted to plug all loopholes, virtually banish the private sector and to ensure legal success for Project Public Sector in the field of coal mining. Section 3(3) of the 1976 Act reads thus:

3.(3) On and from the commencement of section 3 of the Coal Mines (Nationalisation) Amendment Act, 1976 :-

( i) the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government, or

(ii) a person to whom a sub-lease, referred to in the proviso to clause ( c) has been granted by any such Government, company or Corporation, or

(iii) a company engaged in the production of iron and steel, shall carry on coal mining operation in India, in any form;

(b) excepting the mining leases granted before such commencement in favour of the Government, company or corporation, referred to in clause(a), and any sub-lease granted by any such Government, company or corporation, all other mining leases and sub-leases in force immediately before such commencement, shall, in so far as they relate to the winning or mining of coal, stand terminated;

( c) no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation, referred to in clause(a) :

Section 4 of the same Act super-adds severe punishment for contravention of the prohibition contained in s. 3(3). The total effect

thus is clear. The Parliament wanted to prevent the mischief of coal R mining and other illicit extraction of coal to the national detriment.

Scratching, slaughter mining and such like activities on the sly were regarded as defeating the nationalisation scheme.

( • ....__

Counsel for the petitioners contended that the legislative history was relevant to the interpretatioo of s. 3(3) of the 1976 Act. In his submission, the amendment brought about in 1976 incorporating total interdict of mining applied only in relation to coal mines and not in relation to coking coal mines. For this argument he sought sustenance from the existence of two sets of legislation dealing with coal mines and coking coal mines throughout the 1970s. He further pointed out that even as late as 1978 when amendments were contemplated in regard to coal mines' and coking coal mines' nationalisation there were separate provisions separately inserted in both the nationalisation measures. He cited the 1978 Act as illustrative, even decisive. The absence of any mention of coking coal mines in the 1976 Act, was, in his submission, conclusive of the parliamentary intent in his favour, especially when read in the light of the history of the package of nationalisation legislations.

We are far from satisfied that there is substance in this submission.

History may illumine but cannot imprison interpretation. It is true that in 1971 when Parliament was faced with a crisis regarding need

for coking coal in iron and steel industries a legislation, on an emergency footing, was made solely confined to coking coal mines.

As we have earlier explained, the plan of the nation in regard to these natural resources was then embryonic and later final and there was step-by-step legislation to implement the policy on a phased programme. The culmination came in the blanket ban of 1976. We are concerned here with the interpretation of s. 3(3) which we reproduce again for facility of reference at this stage :

3. ( 3 ) On and from the commencement of section 3 of the Coal Mines (Nationalisation) Amendment Act, 1976,-

(a) no person, other than-

(i) the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government, or

(ii) a person to whom a sub-lease, referred to in the proviso to clause ( c) has been granted by any such Government, company or corporation, or

(iii) a company engaged in the production of iron and H steel, shall carry on coal mining operation, in India, in any form;

(b) excepting the mining leases granted before snch commencement in favour of the Government, company or corporation, referred to in clause (a), and any sub-lease granted by any such Government, company or corporation, all other mining leases and sub-leases in force immediately before such commencement, shall, in so far as they relate to B the winning or mining of coal, stand terminated;

( c) no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation, referred to in clause (a) :

Provided that the Government, company or corporation to whom a lease for wjnning or mining coal has been granted may grant a sub-lease to any person in any area on such terms and conditions as may be specified in the instrument granting the sub-lease, if the Government, company or corporation is satisfied that-

( i) the reserves of coal in the area are in isolated small pockets or are not sufficient for scientific and economical development in a co-ordinated and integrated manner, and

(ii) the coal produced by sub-lessee will not be required to be tran_sported by rail.

The_ short question of statutory construction turns on the meaning to be assigned to the expression "no person, other than the Central Government or a Government company or a corporation owned, managed or controlled by the Central Government. ......... shall carry on coal mining operations in India, in any form". The; expression F is semantically sweeping and is wide in meaning so as to spare no class of coa•J, including even coking coal, because coking coal is a species of coal, coal itself being the genus. What is more, there is a definition of 'coal mine' in the Coal mines (Nationalisation) Act, 1973.

Section 2(b) of the 1973 Act defines coal mine to mean "a mine in which there exists one or more seams of coal". It is apparent that G even a coking coal mine is a coal mine because the definition is broad.

It is inarguable that coking coal is not coal. This conclusion is reinforced by looking at the definition of coking coal mine in s. 3 ( c) of the Coking Coal Mines (Nationalisation) Act, 1972.

Section 3(c) reads thus :

H "coking coal mine" means a coal mine in which there exists one or more seams of coking coal, whether exclusively or in addition to any seam of other coal.

Indeed, it is irrefutable, viewed literally, lexically, semantically, teleologically or applying the rule in Heydon's case(') that coking coal mine is a coal mine. If it is a coal mine it is covered by the 1976 Act.

Coking coal is more precious,, strategically speaking, than other forms of coal and it would be an error, nay a blunder, to preve'nt private extraction of common coal and to permit removal of coking coal. It would be pathetic and bathetic for any policy-maker to be so egregious.

Parliament may err but not be absurd ! So constrned, it is obvious that coking coal, which is more importantly needed for the nation than other supplies of coal, must be the last to be squandered away by permitting it to be privately exploited.

We have no hesitation in holding that 'coal mine' in the 1976 Act includes coking coal mine ands. 3(3) of that Act clamps down the ban on extraction of coking coal also.

It was feebly submitted that some of the mines may have fire-clay layers to reach which the mining operation may hve to pass through coal seams; and, therefore, such operation cannot be prohibited. We are not impressed with this argument at all. Even assuming there is fire clay or other layer somewhere in the bowels of the earth the statutory mandate is that once you come up on a coal seam you shall stop extracting it to proceed beyond.

Maybe, some injury may be caused, fancied or real, but it is permissible for Parliament to make provision to prevent evasion of the purpose of the statute by prohibition of mining other minerals which may incidentally defeat the coal nationalisation measure.

In this view we find no merit in any of the writ petitions and dismiss them all with costs.

It has been mentioned on more than one occasion in this court that interlocutory orders have been sought and obtained, that Receivers have been appointed by other courts and that they have been working these mines.

In the face of the statutory prohibition which is imperative in tone and all-embracing in language, even punishable for violation, it is surprising that any Receiver could at all dare to work mines without running a grave risk. The court cannot sanction the commission of a crime.

We make it perfectly plain that there will be no more authorisation for any receiver or other officer of court to extract coal or coking coal from any mine in India. Section 3 (3) of the 1976 Act, being all-inclusive and having been constitutionally upheld by this Court, it is no longer permissible for any court in India

(!) [1584] 3 Rep. 7b.

20-289 SCI/80

to appoint a receiver for or otherwise permit extraction of coal or coking coal.

These observations and reasonings must converge to only one conclnsion that the crowd of writ petitions deserve to be and are hereby dismissed-of course, with costs.

We would conclude with a conscientious query-will the State keep the coal mafia out, break the coal racket where government agencies are suspect and demonstrate that, the court having come to the aid of the Executive, nationalisation will fulfil the targets and tide over the crisis ? Caesar's wife must be above suspicion.

S.R.

Petitions dismissed.

STATE OFI BIHAR AND ORS. ETC

April 11, 1980

V. R. KRISHNA IYER

0. CllINNAPPA REDDY

Amendment Act, 1976

Section 3(3)

section 3

Section 3(3)

Section 2(b)

Section 3(c)

Parliament

(1980] 3 S.C.R.

4

Section 3(3)

India

Article 32

K. Srivastava

H.K. Puri

M. P. !

Y. S. Chitale

B. P. Singh

Naresh K. Sharma

P. R. Mridul

D. P. Mukherjee

E A. K. Sen

S. K. Sinha

C. K. Ratnaparkhi

G. S. Chatterjee

S. K. Jain

M. K. Banerjee

A. Subhashlni

Lal Narain Sinha

U. P. Singh

S. B. Sinha

D. P.

Mukherjee

Rathi11 Das

S. S. Jauhar

KRISHNA IYER

Amendment Act, 1976

Chitale

Central Government

Bihar

Bengal

Section 3(3)

section 3

Amendment Act, 1976

Central Government

Section 4

s. 3(3)

s. 3(3)

s. 3(3)

section 3

Amendment Act, 1976

Section 2(b)

s. 3

Section 3(c)

Heydon

Section 3


OIL AND NATURAL GAS COMMISSION AND ORS.

DR. MOHD. S. !SKENDER ALI

April 14. 1980

[A. C. GUPTA, S. MURTAZA FAZAI. Au AND P. S. KAILASAM, JJ.J B

Tennination of Services-Tern1ination Si111pliciter-Services of a probationer terminated without further proceeding against the departmental enquiry- Whether offends Art. 311 (2) of the- Constitution and attaches any stigma.

The respondent was appointed on a purely temporary basis to the post of a medical ofl:cer in the Oil and Natural Gas Commission. Under the terms and C conditions of service. he was to remain on probation for a period of one y1e'ar \V1iich could be extended -at the disi;; retion of the appointing authority He was appointed on Ottober 15, 1965. During the period of his probation. on a repart ag<iinst him for negligence and dereliction of duty, a departn1ental enquiry was held against him but that was not proceeded with, nor was any punishment imposed on him.

His period of probation was extend 4 ed for six months from 15-10-1966 and before his services were tenninated, there D was no express order either confirming hin1 or extending the period of probation.

His services were terminti.tcd with effect fron1 28th July 1967.

T11e respondent filed a \vdt petition in the High Court on the ground that the order tenninating his services was n1afa(idc and was in fact passed by way of penalty entailing evil consequenc.!S.

The plea taken by the respondent forind favour with the High Court which aJlowed the petition and quashed the E order of the appellant terminating the services of the respondent.

Hence the appeal by special leave by the State.

AI!owing the appea.1 the Court

HELD : 1. A temporary employee is <lppointed on probation for a particular period only in order to test' whether his conduct is good and satisfactory so that he niay he retained.

The remarks, in the assessment roll merely indicate the nature of the perfonnancc put in by the officer for the limited pilrpose of detern1ining ""hrther or not his probation should be extended.

These remarks were not intended to cnst any stigmn. f607G-H. 608A]

R. L. Butail v. [Inion of India, [1971] 2 S.C.R. 55, followed.

2. The contention thrit the real motive behind the termination of the service G .of the respondent \V'as to inflict a punishn1cnt on him and as the appellants did nt, t comply with the requirements of Article 3 I 1 of the Constitution, the order in1pugned \Vas illegal is not correct. Jn the first place, it was clearly pleaded by the Ciover11n1ent in its counter-affidavit thnt talthough an enquiry was held it was not continued and no punishment was in1poscd on the respondent.

As the respondent was merely a probationer the appointing authority did not consider it necessary to continue the enquiry but decided to terminate the services of the H respondent a~ he was not found suitable for the job.

In the case of Q probationer or a temporary employee. who has no right to 1he post, such a terrnina-

A tion of his service is valid and does not attract the provisions of Article 311 of the Constitution. [608C-E, G-H, 609A]

Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the tctrms of appointment of the respondent such a power flo\ved from the B contract of service it could not b~ termed as penalty or punishment. [61 lC-D]

Shamsher Singh and Anr. v. State of Punjab, [1975] 1 SCR 814; Purshotta.'n Lal Dhbzgra v. Union of Indi.a, [19581 SCR 828; Sta.te of U.P. v. Rc11n Chand Trivedi, [1977] 1 SCR 462; State of Maharaslit1'll v. J7eerappa R. Saboji end Anr. [1980] I SCR 551, followed.

3. The order i'mpugned is prhna facie an order of termination simpliciter C without invohr:ing any stigma. The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probati.oner and had no right to the service. The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment. The short history of the service of the respondent clearly showed that his work had nfi.vcr been satisfactory and he was not found suitable for being D retained in service and that is v.hy even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him.

In these circumstances therefore. if the appointing authority considered it expedient to terminate the services of th'e respondent-a probationer-it cannot. b~ said that the order of termination attracted the provisions of Art. 311 of the Constitution. Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned. [61 lG-H.

612B-DJ

State of Bihar v. Gopi Kishore Parsad, A.I.R. 1960, 689; distin.uished.

CIVIL APPELLATE JuR1smcnoN : Civil Appeal No. 1385 of 1979.

Appeal by Special Leave (rom the Judgment and Order dated F 10-7-1969 of the Assam & Nagaland High Court in Civil Rule No. 249

-1j_

of 1967. ---.~.

 B. D(ltta for the Appellant.

A. R. Barthakur, S. K. Nandy and P. Bhanlwkur for the Respon- ( dent.

G The Judgment of the Court was delivered by

FAZAL Au, J.

This appeal by special leave is directed against! a judgment and. order dated 10th July 1969 of the High Court of Assam and Nagaland. The facts giving rise to the appeal lie within a very narrow compass. lbe respondent, Dr. Md. S. Iskender Ali, was H appointed on a purely temporary basis to the p-0st of a medical officer in the Oil and Natural Gas Commission: Under the tenns and conditions of his service, he was to remain on probation for a period of

O.N.G. COMMISSION v. !SKENDER ALI (Fazcil Ali, J.) 605

one year which could be extended at the .discretion of the appointing authority. The respondent was appointed on October I 5, 1965 and the order of his appointment may be extracted thus :

''No. 52 '~S/65-ENT Dated the 15th October 1965

MEMORANDUM

With re; ferencc to his interview on the 18th August 1965 held at Sibsagar, Shri Dr. Md. S. Iskender Ali is hereby inturmed that he/she has been selected for a temporary post of l\Iedical Officer in the Oil & Natural Gas Commission on an initial pay of Rs. 325/- p.m. in the scale of pay of }{s. 325-25-500-30-EB-30-800 (plus non practising allowance @ 25% of basic pay subject to m; nimum of Rs. 150/-).

He will be entitled to draw dearness and other allowances at such rates and subject to such condit:ons as may be laid dovm in the rules and orders governing the grant of such allowances from time to tilne."

The order of appointment was accompanied by conditions regulating his appointment and two of them may be extracted below, as they appear to be very relevant for the purpose of deciding the question at issue:-

"(ii) The appointment may be terminated at any time by one 1nonth's notice to be given by either side, viz., the appointee or the appointil1g authority, without ass1gmng any reasons.

The appointing authority, however, reserves the right of terminating the services of the appointee without notice or before exp'ration of the stipulated period of notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice or the unexpireid portion thereof;

\iii) He will be on probation for a period of one year from

tlm date of appointment.

This period may be extended at the, discretion of the appointing authority, if necessary.

During the period of probation, the

ervices are liable to be terminated at any time without notice, and/pr assigning any re, sons whatsoever."

 It appears that during the period of his probation there were some reports agaimt the respondent as a result of which a departmenlJ 1 H enquiry was held against him but which does not appear to have been prO<:eeded with nor, was 'any punishment imposed on him.

After he

had completed the period of one year on 15-10-1966 his probation was

xtended for c.nother six months :rnd before his services were terminated, there w; is no express order either confirming him or extending the period of probation.

Ultimately, by an order dated 28th July 1967 the services of the respondent were terminated with effect from 28th July 1967. The order of termination runs thus :-

"No. 57/191/67-ENT Dated July 28, 1.967

OFFICE ORDER

Under para 2!iii) of offer of appointment No. 52/;35/65- ENT dated October 16, 1965 the service of Dr. Md. Iskender Ali, Medical Officer (still on probation), is hereby tenninated with effect from the date of the service of this order on hinL"

The respcndent felt aggrieved by the termination of his services and filed a writ petition in the High Court on the ground that the order terminating his services was mala fide and was in fact passed by way of penalty entailing evil consequences.

The plea taken by the respondent found favour with the High Court which allowed the peti- , tion and quashed the order of the appellant terminating the services of the respondent.

The appellant obtained special leave to appeal from this Court; hence the appeal has now been posted before us for hearing.

The only point raised before us by the appellants was that as the respondent wa5 a mere probationer and the order temunating his services was an order of termination simpliciter without ilil.volving any stigma or penalty, the High Court was in error in quashing the order of tennination and directing the reinstatement of the respondent. The counsel for the appellants submitted that reading the order per se there is nothing to indicate that it was passed by way of punishment.

As the respondent was a temporary employee on probation, it was open to the employer to terminate his services at any time be.fore he was confirmed. If the employer was sa'isfied that he was not suitable for being retained in service.

The cot1nsel for the respondent, on the other hand, submitted that the o'der, tl1ough per se innocuous, was really a cloak to conceal the real mischief which the order purported to perpetuate as the order of termination was preceded by a full-fledged departmental inquiry and a regular chargesheet was submitted against the respondent, it was because the respondent ':'as found guilty that he was punished by way of c!ilsmissal from service. In other words, the argument of the respondent was that the order of termination of the

services passed by the appellant was an order which amounted to A dismissal from service involving a clear stigma and would, therefore, attract the provisions of Art. 311 of the Constitution and was rightly quashed by the High Court,

Before examining the respective contentions of the parties it may be necessary to mention a few admitted facts : B

( 1) It is not disputed that the respondent was appointed in a temporary post of Medical Officer and on probation of one year.

(2) Being a probationer, the respondent had no right to the service.

(3) Under the tenns of his appointment particularly clauses (ii) and (iii), extracted above, the appointing authority could terminate the services without assigning any reasons.

(4) Under clause (iii) of the conditions of appointment, the appointing authority had a discretion to extend the period of probation and to terminate the services of the respondent without any notice and without giving any reasons whatsoever.

(5) After the respondent had put in one year's probation, his period of probation was extended for a further period of six months which is a clear pointer to the fact that the appointing authority was not convinced that the respondent !tad satisfactorily completed the pe_riod of his probation.

The conliden, tial roll reflecting the assessment of the work of the respondent during the period 31-12-1965 to 30-12-1966 clearly shows that the officer was careless and lacking in sense of respqnsibility. The report also shows that the reporting officer recommended that the period of probation should be extended. In accordance with the recommendation, the period of probation was further extended by six months.

The learned counsel for the respondent submitted that the remarks made in the assessment roll went to show that the intention of the appointing authority was to proceed against the respondent by way of punishment.

We are, however, unable to agree with this submission. It is obvious that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained.

The remarks, in the assessment roll, merely indicate the nature of the perfonnance put in by the officer

A for the limited purpose of Jetermining whether or not his probation

should be extegded.

These remarks were not intended to cai; t any stigma.

In the case of R. L. Butail v. Union of India & Ors.,(') this Court while indicating the nature of assessment made by the reporting officer observed as follows :-

"These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comperative merit when questions of promotion, confirmation, etc., arise."

It was then vehemently contended by the respondent that as the appointing authority chose to institute a departmental inquiry against the respondent for dereliction of duty and negligence in not attending to a baby who died due to his carelessness, the enquiry should have been carried to its logical end and charge-sheet having been framed, the provisions of Art. 311 of the Constitution were clearly attracted and therefore it was not open to the appellants to have terminakd the services by giving the order a cover of termination simpliciter.

In other words, the contention was that the real motive behind the termination of the service of the respondent was to inflict a punishment on him and as the appellants did not comply with the requirements of Art. 311 of the Constitution, the order impugned was illegal.

We are, however, unable to agree with this argument.

Jn the first place, it has been clearly pleaded by the Government in its counter-affidavit that although an enquiry was held yet it was not continued and no punishment was imposed on the respondent. In this connection, relevant portion of paragraph 11 of the counter-affidavit before the High Court may be extracted :-

"A preliminary enquiry was made before the charge. was framed and on the enquiry report a prirna facie case having been found against the petitioner due charge was framed against him. No punishment under Regulation 28 of Oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulation was inflicted on the petitioner."

In these circumstances, therefore, it is obvious that as the respondent was merely a probationer, the appointing authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job. It is well settled by a long course of decisions of this Court that

(I) [19711 2 S. C. R. 55.

~--

/ (---~

' '

in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his services is valid and does not attract the provisions of Art. 311 of tbe Constitution. In the

case of Shamsher Singh & Anr. v. State of Punjab,( 1) the matter was considered in all its aspects by a Constitution Bench comprising seven Judges of this Court and the Court adumbrated the following pro- . 8 positions :-

"Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any tempermenta! or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. . . . . . The fact of holding an inquiry is not always conclusive.

What is decisive is whether the order is really by way of punishment. .... A probationer whose temis of service provided that it could be terminated without any notice and without any cause being assigned could 'not claim the protection of Article 311(2) ....

An order terminating the services of a temporary servant or probationer under the Rules of Employment and withont anything more will not attract Article 311.

Where a departmental enquiry is contemplated and if an enquiry is not in fuct proceeded with Aricle 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct."

Similarly, the matter was previously considered in Parshotam Lal Dhingm i. Union of lndia(2) where the following observations were made:-

"Shortly put, the principle is that when a servarit 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 ms 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

"1) [1975] 1 S. C.R. 814.

(2) [1958] S. C., R. 828.

get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on pr<>- bation or on an officiating basis and whose temporary service il'as 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 Governmen servant is by way of punishment is to ascerta.in 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 oases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 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."

All these decisions were reviewed in the case of State of U.P. v.

Ram Chandra Trivedi(') where this Court observed as follows :-

"Keeping in view the principles extracted above, the respondent's suit could not be decreed in his favour.

He was F a temporary ha'nd and bad no right to post. It is a'.so not denied that both under the contract of service and the service rules governing the respondent, the State bad a right to terminate his services by giving him one month's notice.

The order to which exception is taken is ex facie an order of ter-

G mination of service simpliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.

In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution.

B We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriv- ,,

(I) [1977] I S. C. R. 462.

~·

.... ..

ing at the finding that the impugned order was passed by way of punishment by probing into the departmental corespondence that passed between the superiors of the respondent overlooking the observations made by this Court in I. N.

Saksena v. State of Madhya Pradesh [1967 (2) S.C.R. 496) that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Conrt would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such rese<arch."

The facts of the present case appear to be on all fours with those c of the aforesaid decision.

From the undisputed facts detailed by us in an earlier part of the judgment, it is manifest that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed D from the contract of service it could not be termed as penalty or punishment.

The matter was again considered at great length by a recent decision of' this Court in the case of State of Maharashtra v.

Veerappa R. Saboji & Anr.,(') where Untwalia, J., observed thus :

"Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order."

Applying the principles enunciated by this Court in various cases to the facts of the present case, the position is that the order impugned is prima facie an order of termination simpliciter without involving any stigma.

The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probationer and had no right to the service.

The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment.

(1) A. I. R.

1980 S. C. 42 .

Reliance was, however, placed by the respondent on a decision of this Court in the case of The State of Bihar v. Gopi Kishore Prasad('), where it was held that although termination of the service of a person holding the p06t on probation cannot be said to deprive him of any right to the post and is no punishment but where instead of terminating a person's service the employer choose to hold an enquiry into his alleged misconduct and proceeds by way of a punishment, such a course involves a stigma and an order of termination is bad. Such, however, is not the case here. The short history of the service of the respondent clearly shows that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even C though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him. In these circumstances, therefore, if the appointing authority considered it expedient to terminate the services of the respondent-a probationer-it cannot be said that the order of termination attracted the provisions of Art. 311 of the

Constitution.

Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned as held and observed by this Court in the cases cited above.

For these reasons, therefore, we are satisfied that the order termi nating the services of the respondent was valid and did not involve any stigma and was fully justified in the facts and circumstances of the present case. The' High Court, therefore, erred in law in quashing the impugned order. For these reasons, we allow this appeal, set aside the judgment and decree of the High Court and hold that the order terminating the services of the respondent was valid in law. In the circumstances of the case, there will be no order as to costs.

S.R.

Appeal allowed~

(!) A. I .R. 1960 S. C. 689.

OIL AND NATURAL GAS COMMISSION AND ORS

DR. MOHD. S. !SKENDER ALI

April 14. 1980

A. C. GUPTA

P. S. KAILASAM, JJ

Art. 311

Oil and Natural Gas Commission

Ottober 15, 1965

28th July 1967

[1971] 2 S.C.R. 55

Article 3

Article 311

[1975] 1 SCR 814

[1977] 1 SCR 462

Art. 311

Nagaland High Court in Civil Rule

B. D(ltta

A. R. Barthakur

S. K. Nandy

P. Bhanlwkur

FAZAL Au

Md. S. Iskender Ali

Sibsagar

Md. S. Iskender Ali

s. 325

Md. Iskender Ali

Art. 311

Art. 311

Art. 311

Art. 311

Article 311(2)

Article 311

[1975] 1 S. C.R. 814

Article 311

Art. 311

Art. 311

Article 311

Untwalia

Art. 311


i i

' ~

NEPAL SINGH

STATE OF UP. AND ORS.

April 15, 1980

[R. S. SARKARIA AND R. S. PATHAK, JJ.]

Termination Sinzpliciter-An order tetminating the services of a te1nporary .Government servant and ex-facie innocuous in that it does not cast any

stignuz on tile Government servant or visits him with penal consequences a1nounts to termination simpliciter-Order does not contravene Article 311 (2) of the Constitution of India 1950.

The appellant was a temporary sub-inspector of Police. While he v.•as posted at Shahjahanpur the SuperintenUent of Police, Shahjahanpur con1menced disciplinary proceedings against him on the charge that he had violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 in as n1uch as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive. At the stage

of evidence, the Deputy Inspector General of Police, Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence has been committed at Pithoragarh, situated in a different police

roang~, and therefore, the proceeding_s ta.ken against the appellant were ..... incompetcnt.

1\-feanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub-inspectors whose reputation and integrity \\'ere very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police Service or who were involved encouraging crime. The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him. On April 27, 1970, the Dy. Inspector General of Police made an order terminating the services of the appellant, reciting that the services of the appellant ''are no more required and that he will be considered to have ceased to be in service .... ''

The appell•ant filed a Writ Petition against the order tern1inating his services and claimed that the order contravened .A.rticle 311(2) of the Constitution inasmuch as it was an order in1posing the punishment of dismissal or rem9val from service without satisfying the conditions prescribed therein. Allegations of fnala/i<Je were also iµade. The Writ Petition was dismissed. An appeal to the Division Bench was also dismissed. Hence the appeal by special leave.

Dismissing the appeal, the Court.

}J.ELD : 1. It is now settied law that an order terminating the services of a temporary Government servant and ex facie innocuous in that it does not -cast any stigma on the Government ser\ant or visits him with penal conse- B quences must be regarded as effecting a termination simpliciter, but if it is diseovered on the basis of material adduced that although innocent in its

SUPREME COURT REPORTS [1980] 3 s.c.R.

terms the order was passed in fact 'vith a view to punishing the Government servant, it is a punitive order which can be passed only after complying with Art. 311(2) of the Constitution.

[615H, 616AB]

2. The question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by wa.y of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order. The application of the test is not always easy. In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in ; elation to the post held by him it was intended simply to terminate his services. The function of the Court is to discover the nature of the order by attempting to ascertain \.Vhat was the motivating consideration in thf; mind of the authority which prompted !he order.

[616B-E]

In the instant case: (a) the appellant was a temporary Government servant, and the question whether he should be retained in service was u matter which arose directly during the drive instituted by the Inspector General of Police in March 1970 for weeding out Police Officers who were unsuitable or unfit to be continued in ser\ice; (b) the material which the Superintendant of Police considered \Vas sufficient to lead to the conclusion that the appellant, who \Vas a tempofary Government seryant, was not suitable for being retained in service-his general character and conduct led to that impression and there was nothing to show that the impugned order was made by way of punishment; ( c) the circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment, and (d) the impugned order was not intended by way of punishment.

[616£-G]

State of Maharashtra v. Veerappa R. Saboii and Anr. [1980] 1 S.C.R. 551 A.I.R. 1980 SC 42; applied.

C1v1L APPELLATE JurusDICTION : Civil Appeal No. 621 of 1973.

From the Judgment and Order dated 13-3-1973 of the Allahabad ; High Court in Sp!. Appeal No. 9 /73). ~

V. l. Francis for the Appellant.

0. P. Rana for the Respondent.

The Judgment of the Court was deHvered by

PATHAK, J. This appeal by special leave arises out of a writ petition H filed by a police officer aggrieved by the termination of his services.

The appellant was a temporary Sub-Inspector of Police.

He was posted at Sliahajahanpur in 1969. The Superintendent of Police,

NEPAL S!NGHV. U.P. STATE (Pathak, J.) 615

Shahjahanpur commenced disciplinary proceedings against the appellant on the charge that he had violated Rule 29 of the U .P. Government Servants Conduct Rules, 1956 ; nasmuch as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive.

The charge was denied by the appellant. The Superintendent of Police recorded evidence. But at this stage the Deputy Inspector General of Police Bareilly made an order ou March 12, 1970 quashing the disciplinary proceedings on the ground that the offence had been committed at Pithoragarh, s; tuated in a different police range, and therefore the proceedings taken against the appellant were incompetent.

Meanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub-Inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police service or who were involved in encouraging crime.

The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him.

On April 27, 1970, the Deputy Inspector General of Police made an order terminating the services of the appellant. The order recites that the services of the appellant, "are no more required and that he will be considered to have ceased to be in service ........ "

The appellant filed a writ petition against the order terminating his services, and claimed that the order contravened Article 311 (2) of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from serrice without satisfying the conditions prescribed in that provision. It was also alleged that the order wa5 passed mala fide.

The writ petition was dismissed by a learned Single Judge of the Allahabad High Court.

An appeal was dismissed by a Division Bench of the High Court on March 13, 1973.

In the appeal before us, it is urged for the appellant that the High Court was wrong in holding that the order terminating the appellant's G services was , not an order imposing a punishment.

We are referred

_.._ to the disciplinary proceedings instituted against the appellant in 1969 and it is submitted that although the order of termination does not refer to those proceedings and the charge on which they were commenced, the appellant's services were terminated with a view _to punish him for contracting a second marriage without prior permis- H sion of the Government. We are satisfied that the contention is without substance. It is now settled law that an order terminating the

6i6

SUPREME COURT REPORTS [1980) 3 S.C.It.

services of a temporary Government servant and ex facie inriocnous in that it does not cast my stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying 'vith Article 311(2) of the Constitution. The scope of the enquiry called foi: in such a case has been outlined by one of us in State of Maharashtra v. Veerappa R.

Saboji and another.(') But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter; if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order.

The application of the test is not always easy.

In each case it is necessary to examine the. entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services.

The function of the court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.

In the present appeal, the appellant was a temporary Government servant.

The question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March, 1970 for weeding out police officers who were unsuitable or unfit to be continued in service. The Superintendent of Poliee prepared a list of Sub-Inspectors functioning within his jurisdiction, and included the name of the appellant in that list.

The material which he considered was sufficient to lead to the conclusion that the appellant, who was a temporary Government servant, was not suitable for being retained in service.

His general character and conduct led to that impression.

There is nothing to show that the impugned order was made by way of puniShment. The circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment.

As we have observed, that is a conclusion which must follow from the nature of the intent behind the order. That intention can be discovered and proved, like any other

(I) [1980] I S. C.R. 551-A.I.R. 1980 S. C. 42.

NEPAL SINGH v. U.P. STATE (Pathak, J.) 61 7

fact, from the evidence on the record. ln this case, it is not proved A that the impugned order was intended by way of punishment.

Learned counsel for the appellant relies on Stale of B ihar & Ors.

v. Shiva Bhikshuk Mishra(') and State of Uttar Pradesh & Ors. v.

Sugher Singh.( 2 ) Both were cases of permanent Government servants. And as regards Regional Manager & Anr. v. Pawan Kumar Dubey,(') to which also reference has been made, that was a case where on the facts the Court found that there were no administrative reasons for the impugned reversion.

The appeal fails and is dismissed, but in the circumstances there is no order as to costs.

S. R.

(I) [1971] 2 S. C.R. 191.

(2) [1974] 2 S. C. R. 335 •

• (3) [19761 3 S. C: R. 540.

Appeal dismissed.

NEPAL SINGH

STATE OF UP. AND ORS

April 15, 1980

R. S. SARKARIA

R. S. PATHAK, JJ.

Article 311

Constitution of India

Government Servants Conduct Rules, 1956

Bareilly

March 12, 1970

Pithoragarh

March 8, 1970

Uttar Pradesh

Shahjahanpur

April 27, 1970

Art. 311(2)

[1980] 1 S.C.R. 551

V. l. Francis

P. Rana

PATHAK

Sliahajahanpur

Shahjahanpur

Government Servants Conduct Rules, 1956

Article 311

Allahabad High Court

March 13, 1973

Article 311(2)

[1971] 2 S. C.R. 191

[1974] 2 S. C. R. 335