In the law relating to master and servant the expression “dismissal” has acquired a limited meaning – determination of employment as a method of punishment for misconduct or other cause.
That is the meaning in which the expressions “dismissal” is used in the rule published by Notification dated March 25, 1946. By S. 84 the Power of dismissal of a servant under S. 82 can only be exercised subject to the provision of this rule, and the expressions “dismiss” and “dismissal” must have the same connotation in the law which deal with the power and the procedure for exercise of that power. The view expressed by the High Court would lead to the result that even for mere termination of employment the procedure prescribed by the Notification may have to be followed. There is again inherent indication in S. 82, which supports the view that the expression has been used in a limited sense. The first proviso to Section 82 confers a right of appeal to servants of the Board, against orders of the President imposing a fine exceeding one month’s salary, suspension for a period exceeding one month, reduction by way of punishment, or supersession of a servant in the matter of promotion, as well as against orders of dismissal. The orders imposing fine, suspension, reduction or supersession are ex facie orders of punishment, and there is no reason why the order of dismissal which occurs in the same clause, and which is subject to appeal is not an order of that nature. The fourth proviso also confers a similar right of appeal against the order of the Board dismissing certain superior servants. An appeal against an order of mere determination of employment, which may generally by made in the exigencies of the services may serve no useful purpose. Provision of a right of appeal is indicative of the nature of the order. In our view it is competent under S. 84 read with S. 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by S. 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under cl. (d) of S. 84 to be exercised consistently with R. 3A. and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under S. 84 (b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contented that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee.[S. R. Tewari-AIR 1964 SC 1680 : (1964) 3 SCR 55]
