CHAPTER V
TERMINATION OF TEMPORARY SERVICE*
Article 311(2) of the Constitution does not in terms say that the protection
of that article applies only to persons who are permanent members of the
services or those who hold permanent civil posts. To limit the operation of the
protective provision of this article to the permanent government servants alone
would amount to adding of qualifying words to the article. The protection
afforded by that article applies equally to persons in permanent appointment as
well as to those appointed on temporary basis.1 It is a well settled law that the
service of a persons appointed on a temporary basis in the service of the state
is liable to be terminated in the exigencies of public service by ordering
termination in accordance with rules regulating temporary government servants
and to such termination provisions of article 311(2) does not apply because
such termination is neither dismissal nor removal within the meaning of article
311(2). But if the concerned authority chooses to terminate the service of
temporary government servant on the basis of alleged misconduct, it is
mandatory for the authority to comply with the provisions of article 311(2)
before issuing such an order of termination. Termination for misconduct ola
temporary employee falls within the expression of 'removal' or 'dismissal'
contained in article 311(2). A temporary government servant, in such
circumstances is entitled to the protection guaranteed in article 311(2).
Therefore, any order of termination of service of a temporary government
servant for misconduct without holding an enquiry and without giving a
reasonable opportunity against such termination is void as offending article
311(2).2 Similarly, a person appointed as extra-departmental postal delivery
agent is a civil servant entitled to the protection of article 311 (2) if his termination
is made as a measure of punishment.3
An order of termination of service of a temporary employee simpliciter is
not invalid. But, if disciplinary grounds or other reasons are set out in the
termination order, the same attaches stigma to the employee and, therefore,
* Revised by S.S. Jaswal. Assistant Research Professor, ILL
1 Purushothamlal Dhingra v. Union of India, AIR 1958 SC 36: Union of India v. /' K.
More, AIR 1962 SC 630,
2 Nagaraja Rao v. State of Mysore, 1957 Mys LJ 347: Madan Copal v. State of Punjab.
AIR 1963 SC531; 1963(3) SCR 716; State of Mys ore v. Padmavati. 1964 Mys L.I Supp
138: Union Territory ofTripura v. Gopalachandra. AIR 1963 SC 601.
3 Ύ. C. Govindan v. Inspector of Post Offices, SLR 1967 Ker 515.
Termination of Temporary Service 275
such an order cannot be made without inquiry.4 When the order of termination
of service is passed by way of punishment and is ex facie punitive in nature,
such an order cannot be passed even in respect of temporary employee, without
a regular departmental inquiry.5
The Supreme Court has ruled that if there are allegations of misconduct
against an employee on probation and an inquiry is held to find out the truth of
that misconduct wherein an order terminating the service is passed on the
basis of that enquiry, the order would be punitive in nature as the enquiry was
held not with a view to assess the general suitability of the employee for the
post in question, but to find out the truth of allegations of misconduct against
that employee. In such a situation, the order would be founded on misconduct.0
If the government dismisses such an employee in a punitive manner, or as
a punishment, then termination of his service may amount to 'dismissal' or
'removal' attracting the application of article 311.7 In such a case, it becomes
incumbent to hold a formal inquiry by framing charges against him and giving
him reasonable opportunity in accordance with article 311(2).
As in the case of reversion in cases of termination of service of persons in
temporary service or appointed under special terms and conditions, it is the
duty of the court in a given case to find out by applying the relevant tests
whether the termination of a temporary government servant is termination
simpliciter under the rules regulating termination or a penalty for misconduct,
when such an order is challenged as violative of article 311 (2).8 The principles
governing the cases of termination of temporary civil servants attracting the
provisions of article 311(2) are set out below.
Motive for passing the order not relevant
Where the order of termination of service of a temporary civil servant in
form and substance is nothing more than the discharge effected under the
terms of contract or the relevant rule, it cannot in law be regarded as dismissal
because the appointing authority was actuated by the motive that the servant
does not deserve to be continued in service for some alleged inefficiency or
misconduct:
4 Chandreshwar Narain Dubey v. State ofUttar Pradesh, AIR 1998 SC 2671.
5 Nar Singh Pal v. Union of India, AIR 2000 SC 1401.
6 Chander Prakash Shahi v. State ofUttar Pradesh, AIR 2000 SC 1706.
7 State ofMadhya Pradesh v. Ramashankar Raghuvanshi, AIR 1983 SC374: Kanhailal
v. Distt. Judge, AIR 1983 SC 351; Nepal Singh v. State ofUttar Pradesh; AIR 1980 SC
1459.
8 A.G Benjamin v. Union of India, SLR 1967 SC 185; Union oj India v. PS Bhatt, SLR
1981 (1) SC 370; Gill GS, v. State of Punjab, AIR 1974 SC 1898; State ofU.P. v.
Ramachander, AIR 1976 SC 2547; SLR 1976(2) SC 859; Vishal Mallapa v. Stale of
Karnataka, 1976(1) Kar LJ 503.
276 Se¡~vicvs under the State
The motive behind the discharge is wholly irrelevant. Even where the
government does not intend to take action by way of punishment against a
temporary servant on a report of bad work or misconduct, a preliminary
enquiry is usually held to satisfy the government as to whether there is reason
to dispense with the service of the temporary employee. Λ preliminary enquiry
of this nature must not be mistaken for the regular departmental enquiry in
order to inflict one of the three major penalties. The preliminary enquiry is not
governed by article 311(2). There is no element of punitive proceedings in
such an enquiry. The idea in holding such an enquiry is not to punish the
temporary government servant but just to deicide whether he deserves to be
continued in service or not. If as a result of such enquiry, the authority comes
to the conclusion that the temporary government servant is not suitable, it
may pass a simple order of discharge under the rules. In such a case, it is not
open for him to invoke the protection of article 311(2).9
When termination is punitive
(a) Whether the order of termination of the services of a temporary
government servant is discharge simpliciter or punishment is, of necessity, to
be determined with reference to each individual case. In so doing while the
motive operating on the mind of the authority in terminating the services of a
temporary employee is irrelevant the mere form of the order terminating the
service is not decisive. If a formal departmental enquiry has been held in
which findings have been recorded against a temporary government servant
and as a result of the said findings, his services are terminated, the mere fact
that the order by which his services are terminated though ostensibly purports
to be a mere order of discharge, would not disguise the fact that in substance
and in law the discharge in question amounts to dismissal. The court has,
therefore, to examine in each case whether the order of discharge is really an
order of discharge or one of dismissal. When an authority wants to terminate
the services of a civil servant in temporary service it can pass a simple order
of discharge without casting any aspersions against the temporary servant or
attaching any stigma to his character. But if the order casts an aspersion on
the temporary servant, such an order cannot be considered as a simple order
of discharge. The test in such case is, does or does not the order of termination
attach stigma to the officer concerned when he is purported to be discharged
from service? If the answer is in the affirmative, then regardless of the form
of the order, the termination must be held as amounting to dismissal.10
(b) Where the services of a temporary employee is terminated on the
ground that he has been found undesirable such an order clearly imposes a
9 Ibid
10 Jagadish Muter v. Union of India. AIR 1964 SC 449.
Termination of Temporary Service 277
stigma on the civil servant and therefore amounts to a penalty and the provisions
of article 311(2) of the Constitution is attracted."
(c) Whether an order of termination made against a temporary government
servant attaches a stigma or not is a question of fact to be decided having
regard to all the facts and circumstances of the case. In a case where the
government intended to serve a show cause notice to a civil servant and a
public statement was made on the floor of legislature and thereby publicity
was given, an order of termination made thereafter by giving one month's
notice amounts to an imposition of penalty. In these circumstances though the
order appears to be an order of termination simpliciter, the effect would be
punitive.12
(d) Temporary employee has to prove that termination is a penalty: A
temporary employee claiming article 311(2) protection has to prove that the
termination in his case amounts to removal or dismissal within the meaning of
that article. Where on the face of it, the termination of the employment of a
temporary employee is in accordance with rules or contract, the onus of
proving that such an order of termination really amounts to dismissal is not on
the employee concerned. If he proves that it is a 'penalty and that article
311(2) is not complied with, then the order is liable to beset aside.13 If he fails
to prove that it is a penalty then the termination has to be upheld.14
Other aspects relating to termination
The termination of service of a temporary civil servant cannot be made
either in contravention of articles 14 and 16 or the rules governing terminations.
Such cases are dealt with in the chapter relating to articles 14 and 16 in part II
and the chapter relating to termination of temporary service in part VII.
Where appointments were made on temporary basis and the services were
terminable without notice or assigning any reasons, such employees are not
entitled to hearing before termination of their services.'^ Order of termination
simpliciter on the basis of unsatisfactory service record without attaching any
stigma against the employee and without holding any departmental inquiry is
notviolative of article 311.' 6 Whereduringthependency of a criminal trial for
assault, the services of a temporary employee were terminated for the same
assault, it was not a simple order of termination but was punitive, amounting
11 Madan Mohan v. State of Bihar, SLR 1973( 1) SC 630; State ofPunjab v. Prakash Singh.
SLR 1975 SC 85; Anoop Jaiswal \. Govt. of India, MR 1985 SC636.
12 ¡bid.
13 Nagaraja Rao v. State of Mysore, 1957 Mys. LJ 347; Madan Gopal v. Stale of Punjab,
AIR 1963 SC53U 1963(3) SCR 716.
14 Union Territory ofTripura v. Gopalachandra, AIR 1963 SC 601.
15 M. P. Hasta Shilpa Vikas Ltd. v. Devender Kumar Jain, (1995) 1 SCC 638.
16 llukam Chanel Khundia v. Chandigarh Administration. (1995) 6 SCC 534.
278 Services under the State
to dismissal. Since the order was passed on the basis of a preliminary inquiry
and not that of a regular inquiry, the order was held to be invalid.17
Where the petit'oners should have been treated as government servants,
their services could not have been terminated on the ground that their services
were no longer required. The only ground stated for terminating their services
was that it was only for five years and their services were no longer required.
It was held by the court that termination was illegal and petitioners were
entitled to be reinstated in service with consequential benefits.18 The mere fact
that the status of the employees amounts to government servants would not
by itself entitle them to get all the benefits as is available to the regular
government servants or even to their counterparts serving in the CSD canteen. ' 9
Ordinarily the order of termination simpliciter does not attach any stigma.20
The question whether the termination is simpliciter or punitive has been
examined in several cases.21 In two recent decisions the apex court,22 after a
survey of most of the earlier decisions touching on the question, has observed
as to when an order of termination can be treated as simpliciter and when it
can be treated as punitive and when a stigma is said to be attached to an
employee discharged during the period of probation.
17 Nar Singh Pal v. Union of India, (2000) 3 SCC 588.
18 Union of India v. M. Aslam. AIR 2001 SC 526.
19 G Srinivas Rao v. Union of India. 2006( 1) SLR 109.
20 State ofU.P.Ashok Kumar. 2006(10) SLR 413.
21 Dhanjay v. ChiefOJficer, Zila Parishad, Jalna, AIR 2003 SC 1175; Mathew P. Thomas
v. Kerala Stale Civil Supply Corporation, JT 2003 (2) SC 162.
22 Ibid.
