STATE OF PUNJAB& ANR. versus SHRI SUKH RAJ BAHADUR

This appeal is by a certificate granted by the Punjab High Court under Art. 133 of the Constitution against its judgment and order dated January 7, 1963 in Letters Patent Appeal No. 157 of 1959 reversing a decision of a single Judge of that Court who had dismissed a writ petition filed by the respondents on 'June 7, 1958 to declare that the order of the first appellant reverting him to his permanent post in the Delhi Administration was invalid and to quash the same.

p. 235, margin E

The facts laid in the writ petition are as follows. The petitioner, Sukh Raj Bahadur, respondent herein was a permanent official of the office of the Chief Commissioner, Delhi. On Decem- Oer 9, 1952 he was accepted as a candidate for the post of Extra Assistant Commissioner on the Register A~II of the Punjab Government along with two otliers, on the advice of the Punjab Public Service O>mmission. He was posted as Inspector, Local Bodies, Jullundur Division and Assistant to Commissioner, Jullundur Division. Later on, he acted as Personal ·Assistant to the Deputy Commissioner, Amritsar. On being relieved from the Delhi State Government on January 15, 1953 he assumed charge of the post of Personal Assistant to the Deputy Commissioner, Amritsar in the P.C.S. (Executive Branch Cadre) on January 24, 1953. He passed all the departmental examinations prescribed under rule 21 of the Punjab Civil Service (Executive Branch) Rules, 1930. Under r. 22 of the aforesaid rules, he was to remain on proba· tion for a period of 18 months subject to his completing the training and subject to further extension of the period of probation as the case may be. In his case, the period of probation expired in July 1954. '.J'he same was however not extended by any order of the Governor of Punjab. The petitioner claimed that Jlllder r. 24 of the said rules he became ·qualified for substantive permanent appointment to the P.C.S. (Executive Branch). He , received a charge sheet with a letter dated January 14, 1957 from the Secretary to the Government of PJllljab, Anti-Corruption Department, asking him to reply to the charge sheet within a fort· night and to inform whether he would produce defence or whether he would like to be heard in person. The petitioner replied to the charge sheet on January 28, 1957 stating that he wanted an opportunity of being heard in person. By order of the Punjab State dated 23/26th May 1958 puxporting to be one Jlllder r. 23 of the aforesaid rules, he was reverted by the Punjab State Government to his substantive post of Superintendent under the Chief Secretary, Delhi Administration with immediate effect.

pp. 235–236, margin E

According to the petitioner, the said order of 23 /26th May 1958 terminated his service under the Punjab State Government and permanently removed him from the Punjab Civil Service.

p. 236, margin C

The petitioner also complained that under r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, he should have been apprised of the grounds to terminate his employment as probationer for any specific fault or on account of any unsatis· factory record or unfavourable reports implying his unsuitability for service and given an opportunity to show cause against the s~me, before any orders were passed by th~ authority competent to terminate the appointment. The petitioner was never apprised of the grounds of any such proposal nor given an opportunity to show cause against it before the order reverting him to the post of Superintendent mentioned above was made. There was thus a clear breach of r. 23 of the Punjab Civil Service (Executive Branch) Rules. Accordin~ly the petitioner prayed that the said order of 23/26th May 1958 be quashed and suitable relief be given to him.

p. 236, margin C

The order complained of runs as follows :-

p. 236, margin G

"The Governor of Punjab is pleased to revert Shri Sukh Raj Bahadur, Extra Assistant Commissioner, officiating, from P.C.S. (Executive Branch) to the post of Superintendent under the Chief Secretary, Delhi Administration, with immediate effect."

p. 236, margin G

In the written statement of the respondents to the petition it was stated that the impugned order was not a penalty calling for compliance with the provisions regarding penalty etc. and the Punjab Civil Services (Punishment and Appeal) Rules were not applicable. It was submitted that he was appointed to the Punjab Civil Service (Executive Branch) as a nominee of the Chief Commissioner, Delhi, who was one of the nominating authorities under r. 8 of the Punjab Civil Service (Executive Branch) Rules, 1930 along with some of the officers of the Punjab Government. By passing the departmental examinations in November 1956, the petitioner was due for confirmation thereafter. The absence of confirmation implied that the probationary period was extended under r. 22(c) of the Punjab Civil Service Rules. Lastly, it was said that the reversion of a probationer to his substantive rank could not amount to a punishment.

pp. 236–237, margin G

It is not necessary to examine the charges which were levelled against the petitioner in the charge sheet. Suffice it to say that they were all of a fairly serious nature.

p. 237, margin C

The points put forward before the learned single Judge who heard the petition were :

p. 237, margin C

(l) On the expiry of the period of probation and on his passing the departmental examinations, the petitioner became qualified for substantive permanent appointment.

p. 237, margin C

(2) The impugned order in fact terminated Ins services under the Punjab State Government and removed him from the said service. The petitioner was not afforded any opportunity to show cause against the charg.es contained in the charge sheet or against the proposed punishment. As such there was violation of the provisions of Art. 311 (2) of the Constitution.

p. 237, margin D

(3) The petitioner being a probationer, r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was applicable. The procedure prescribed by the rule was not followed although it was mandatory that before his employment as a probationer could be terminated, he should have been apprised of the grounds of the prop.osed termination and given an opportunity to show cause agamst it .

p. 237, margin E

. The learned single Judge held that the Petitioner had not acqmri:d the status of a permanent member of the Punjab Civil Service merely by efflux of time and by reason of his having passed the ~epartmenta! examinat!o~s. He fu~ther held that the petitioner contmued only m an officiatmg capacity. The second point also wa~ turned down by th.e learned Judge hol~ing_ that the petitioner's case was one of revers10n and not of termmatton of service as the petiti?~er wa.s never ai;>pointed in a permanent capacity and was not VlSlted with any evII consequences. In comin~ to this conclusion the learned single Judge relied, on several decisions starting from the case of Parshotam Lal Dltingra v. Union of India(').

p. 237, margin F

s.c.~.

p. 237, margin H

The learned single 1 udge examined the third point at some length. It was urged before him that the petitioner did not fall within the definition of a 'probationer' in rule 2.49 of the Punjab Civil Service Rules, Volume I, Part I. On behalf of the petitioner, reference was made to the definition of 'Government' contained in r. 2.24 of the Punjab Civil Service Rules and the definition of 'cadre' contained in r. 29 and "it was submitted that if the petitioner had held a substantive post in a cadre under the Punjab Government and had been appointed on probation to another post, then the term 'probationer' would not have. covered his case, but since the petitioner held a lien on a post in Delhi State and not under the Punjab Government, he could not be deemed to fall within the exception contained in the definition of a 'probationer' in r. 2.49." Reference was made to a number of other rules on behalf of both the parties. Ultimately, on examination of the respective contentions of the parties, the learned Judge concluded that the petitioner "could not be regarded as a probationer within the meaning of r. 2.49 of the Punjab Civil Service Rules" and "he could not claim the ben~fit of r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952." He however did not think it necessary to decide whether in the presence of r. 23 of the Punjab Civil Service Rules the Punishment and Appeal Rules would apply at all. Further, even if the said rule applied, the petitioner did not fall within the meaning of the word 'probationer' as given in rule 9. The learned Judge was of the view that there was force in the contention that r. 9 of the Punishment and Appeal Rules could not cover the case of revision as r. 9 only dealt with a case where it was proposed to terminate the employment of a probationer. In the result, he dismissed the application.

p. 238, margin A

The appeal was allowed by the Letters Patent Bench. It appears that the Bench examined only the second point urged before the learned single 1 udge and over-ruling his decision allowed the appeal quashing the ol:der reverting the writ petitioner from the P.C.S. (Executive Branch). The Bench relied principally on the judgment of this Court in Madan Gopal v. State of Punjab(') and The State of Bihar v. Gopi Klshore Prasad('). According to the Bench the enquiry started with a notice which expressly stated that it was being made under sub-r. (2) of r. 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. Sub-r. (1) of r. 7 provided that an order of dismissal, removal or reduction shonld not be passed unless the person concerned had been given reasonable opportunity of showing cause against the action prooosed to be taken in regard to him while sub-r. (2) laid down the manner in which the enquiry was to be held. From this the Bench inferred that:

p. 238, margin E

"When the c_harge sheet was sent to the appellant (writ petitioner), the object and the intention of the State Government was to punish him either by way of dismissal or removal or reduction in rank, . . . . Such an enquiry and any action consequent on such an enquiry would not be covered by principle of Ram N flT,ayan Das' s case, as laid down by the Supreme COurt

p. 239, margin A

in Madan Gopal v. The State of Punjab & others(').". The Bench however observed that altliough no enquiry in the proper sense of the word had been held the omission to hold such an enquiry could not be made a ground for saying that the case difiered in principle either from Gopi Kish_ore Prasad's( case or Madan Gopafs(') case. Accordingly the conclusion reached was that "the reversion of the appellant was by way of punishment and amounted either to reduction in rank or removal from the P.C.S. (Executive Branch)" and as "these actions could not be taken without affording the appellant, adequate opportunity of showing cause against the punishment" there was violation of Art. 311 (2) of the Constitution.

p. 239, margin A

We find ourselves unable to accept the reasoning or the conclusion arrived at by the learned J udgcs of the Division Bench of the Punjab High Court. It is not necessary to examine in detail the earlier decisions of this Court which bear on the issue before us. In this case, the respondent did not cease to be a probationer at the time when the impugned order w&s passed on him. Although the period of probation was fixed at 18 months and although the respondent had passed all the departmental examinations, he could not merely, as a consequence thereof, be considered to be holding a post substantively. Apart from the question as to the right of the respondent under the Punjab Civil Service Rules, the respondent· could not complain merely because he had been reverted to the post formerly held by him. He would have cause to complain if he could show that the order of reversion was by way of punishment. As was pointed out in Parshotam Lal·Dhingra's( case.

p. 239, margin D

"The mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules the ricrht to reduce him to a lower' post does not mea~ that an~ order ?f reduct?on of a servant to a lower post or rank cannot m any c1Tcumstances be a punishment. The real test for determining whether the· reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. . . . . the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be

pp. 239–240, margin F

taken as a dismissal or removal from service. . • • • .'' In the case of State of Orissa and another v, Ram Narayan Das(') the respondent who was a Sub-Inspector of Police on probation in the Orissa Police Force, was served with a notice to show cause why he should not be discharged from service "for gross neglect of duties and unsatisfactory work". He submitted an explanation whii:h was considered by the Deputy Inspector-General of Police as unsatisfactory. The said authority passed an .order discharging the respondent from service "for unsatisfactory work and conduct''. The respondent's contention.was that the order was invalid because he had . not been given a reasonable opportunity to Show cause against tbe proposed actioJ.1 in terms of Art. 311 (2) and that he was not given an opportunity to be heard nor was any evidence taken on the charges. It was pointed out by this Court that the enquiry against the respondent was only for ascertaining whether he was fit to be confirmed, and although "an order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualifications, may appropriately be regarded as one by way of punishment, an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature." The Court distinguished Gopi KiShore Prasad's( case on the· ground that there the pu.blic servant had been discharged from service consequent upon an enquiry into alleged misconduct and the. Enquiry Officer had found that the public servant was 'unsuitable for the post'. Finally it was held by this Court in Ram Narayan Das's(') case that

p. 240, margin A

". . . the fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment in the light of the tests

p. 240, margin F

laid down in Parshotam Lal Dhingra's( In the result the appeal of the State was allowed.

p. 240, margin F

Reference may also be made to the case of R. C. Lacy v. The State of Bihar and others('). In this case the appellant who was working as an Assistant Professor of Botany in Class II Bihar Educational Service was temporarily promoted to Class I of the said service against a permanent post created in April 1949 and 1 S.C.R. A.l.R. 196° S.C.R. Civil Appeal No. appointed Professor of Botany in the college where he was work· ing. He was informed that Government would consider him for permanent appointment depending on the efficiency with which he ran the department, the extent to which he enjoyed the good· will of his colleagues and the devotion to research work that he revealed during the course of the year. In April 1950 the appellant moved the Government for confirmation in Class I. The. Government however decided to continue his temporary service in Class I for another year with the concurrence of the Public Service Commission. Following an incident on February 9, 1951, the Commissioner of Patna Division was appointed to make an enquiry into the same. The report of the enquiry was against the appellant. On August 21, 1951, the Government passed an order reverting the appellant to his substantive post in Class II and trans· ferred him from Patna College to Ranchi College. The appellant filed a suit which was dismissed by the Subordinate Judge. Losing· appeal before the High Court, the appellant came to this Court by special leave. It was contended on his behalf that the order of 21st August, 1951 amounted to infliction of punishment. In dismissing the appeal, it was pointed out by this Court that

pp. 240–241, margin G

"the enquiry which was held by the Commissioner in this case was in the nature of a preliminary enquiry to en· able the Government to decide whether disciplinary action should be taken against the appellant. . . . It is clear .however that the Government did not decide to hold any enquiry for the purpose of. taking disciplinary action against the appellant, for no enquiry officer was appointed, no charges were framed and no regular de· partmental enquiry as envisaged by the rules and Art.

p. 241, margin D

311(2) of the Constitution was ever held." According to this Court the action of the Government was in pursuance of its right to revert an officer holding a higher post temporarily if he was not found fit for the purpose.

p. 241, margin E

In Madan Gopal v. State of Punjab(') the termination of the appell.ant:s service was held to be in violation of Art. 311 (2) of the Cons1ttut10n. There the appellant, Madan Gopal, was appointed an Inspector of Consolidation "on temporary basis and terminable with one month's notice". He was served with a charge sheet to the effect that he had received illegal gratification and called uoon t~ show cause why disciplinary action .should not be taken against hnn. The appellant submitted his explanation and the Settlement Officer who had se1;1t ,out the charge sheet- submitted his report to !he Deputy Co!11m1ss1oner that the charge relating to receipt of 11l~g~l grat1ficalion had. been proved. Thereupon the Deputy Comm1ss10i:er ordered t~at !he services of Madan Gopal be terminated forthwith and that m heu of notice he would receive one month's pay as required by the rules. It was held by this Court that the enquiry made by the Settlement Officer was with the object of ascertaining whether disciplinary action should be taken against the appellant for his misdemeanour and the purpose of the enquiry was to take punitive action including dismissal or removal from service if the charge was substantiated. After discussing Ram Narayan Das's(1) case, the conclusion arrived at was that:

pp. 241–242, margin F

"Such an enquiry and order consequent upon the report made in the enquiry will not fall within the prin-

p. 242, margin B

ciple of Ram Narayan Das' s(') case." In the result, the appeal was allowed.

p. 242, margin B

In Jagdish Mitter v. Union of India(') this Court allowed 'the appeal of the appellant who was appointed as a temporary second division clerk in the General Post Otlice, Lahore for a period of six months in October 1946. His appointment was continued from time to time when the impugned order was passed terminating his services. It was pointed out by this Court that even before discharging a temporary servant the authority may have to examine the question about the suitability of the said servant to be continued and :

p. 242, margin C

"acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not. There_ is no element of punitive pmceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not . . . . . . . . in some cases, the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a fonnal departmental enquiry in that behalf. If such a formal enquiry is held, and an order terminating the services of a tempcrary servant is passed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to the dismissal of the

p. 242, margin D

temporary servant." The Court however was careful to add that considerations of the motive operating in the mind of the authority had to be eliminated in determining the character of the tennination cf service of a temnorary servant and that the form in which the order terminal· ing his services was expressed would not also be decisive. If a (I) 6~6.

p. 242, margin G

formal departmental enquiry had been held in which findings wero. recorded against the temporary servant and as a result of tho said findings, his services were terminated, the fact that the order by which his services were terminated, ostensibly purported to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounted to the dis· missal of the temporary servant. The order of discharge of the appellant ran as follows :

p. 243, margin A

"Shri Jagdish Mitter, a temporary Second Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month'8 notice of discharge with effect from November

p. 243, margin B

1, 1949." According to this Court, the order cast an aspersion on the tern· porary servant and in substance it amounted to an order of dis· missal<

p. 243, margin C

The last decision to which we may refer is the one in A.· G. Benjamin v. Union of India('). In this case, the appellant was temporarily employed as Stores Officer in the Central Tractor Organisation. As he was not a confirmed government servant, his services could be terminated under r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 with one month's notice on either side. The services of the appellant were terminated on April 23, 1954. There. had been certain complaints against him in respect whereof the Chairman of the Central Tractor Organisa· tion sent a notice to him asking him to show cause why discipli· nary action . should not be taken against him and an Enquiry Officer was appointed, but before the enquiry could be completed, the Chairman recommended that the services of the appellant should be terminated under r. 5 observing in his note to the Se~retary that :

p. 243, margin C

"The deoartmental proceedings will take a much Ion· ger time and we are not sure whether after ~ing through all the formalities we will be able to deal with the accus·

p. 243, margin F

cd in the way he deserves." Acting upon this suggestion the appellant was served with the order complained of. The order was to the effect that the appel· lant was being informed that his services were no longer required in the organisation and the same were terminated with effect from the .date on which the notice was served on him. He was further informed that in lieu of the notice one month's pay and allowances due to him, he would be given the same for that" period. This Court distinguished the facts in this case from those in Madan Gopal's(') case and held that the principle of that case could not be applicable. (ll Civil Appeal No. decided on 13-12·196b. 3 S.C.R.

p. 243, margin F

On a conspectus of these cases, the following propositions are. A .cJear:

p. 244

1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such ter· mination without anythin¥. more would not attract the operation of Art. 311 of the ConstJtution.

p. 244

2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

p. 244

3. If the order visits the public servant with any evil co!lse· quences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

p. 244

4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in ser· ·vice, does not attract the operation of Art. 311 of the Constitution.

p. 244

5. If there be a full-scale departmental enquiry envisaged by D Art. 311 I.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of tmni· nation of service made thereafter will attract the operation of the said article.

p. 244

In this case the departmental enquiry did not proceed beyond the stage of submission of a charge sheet followed by the respon· E dent's explanation thereto. The enquiry was not proceeded with; there were no sittings of any Enquiry Officer, no evidence record· ed and no conclusion arrived at on the en~uiry. In these circum· stances, the principle in Madan Gopal's( ) case or Jagdish Mit· ter's(') case will not be applicable. The case is in line with the decisions of this Court in State of Orissa v. Ram Nlll'ain.Das( ), R. C. Lac,v v. The State of Bihlll'(') and A. G. Benjamin v. Union of India(').

p. 244

In this view of the matter, we are unable to concur with the opinion ot the Division Bench of the Punjab High Court.

p. 244

This does not however conclude the matter. The respondent also complained against the non-observance of the Punjab Civil G Services (Punishment and Appeal) Rules. The learned single Judge of the Punjab High Court does not appear to have ex· pressed himself definitely on the third point canvassed before him although he observed that the contention of the Advocate General about the inapplicability of r. 9 was not without force. The learned Judges of the Division Bench did not consider this

p. 244

3 S.C.R. 716. (2) A.I.R. S.C. 449. (3) [l961J I S.C.R.616. (4) C.A. No. 590/1962 (5) C.A No. 1341/66 dated 13-12·66. docidtd 23-10-68.

p. 244

question at all. We therefore allow the appeal and set aside the judgment of the Punjab High Court and remand the matter to that court for consideration of the respective contentions of the parties based on Punjab Civil Services (Punishment and Appeal) Rules, 1952. The costs of this appeal will abide by the decision of the High Court. V.P.S. Appeal allowed and case remanded.

p. 245, margin A