Full Judgment Text
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PETITIONER:
STATE OF PUNJAB & ANR.
Vs.
RESPONDENT:
SHRI SUKH RAJ BAHADUR
DATE OF JUDGMENT:
22/02/1968
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SHAH, J.C.
RAMASWAMI, V.
CITATION:
1968 AIR 1089 1968 SCR (3) 234
CITATOR INFO :
RF 1970 SC 158 (9)
RF 1970 SC 537 (12)
R 1971 SC 836 (9)
R 1971 SC1011 (3)
R 1974 SC 423 (14,15)
RF 1974 SC1317 (11)
RF 1976 SC1766 (12)
R 1976 SC2547 (15,16,21)
D 1978 SC 363 (6,11)
R 1979 SC 684 (7)
R 1984 SC 636 (11)
RF 1986 SC1626 (23)
ACT:
Civil Service-Completion of probation-if probationer
entitled to substantive appointment-Reversion to substantive
post-When operates as punishment.
HEADNOTE:
The respondent who was a permanent official in the Delhi
Administration was appointed to the Punjab Civil Service
(Executive Branch). He was on probation in the new post for
a period of 18 months subject to extension of the period and
subject to his completing training. He passed all the
departmental examinations. The period of probation expired
in July 1954, and there was no extension of it. In January
1957, he received a charge-sheet with a letter from the
Anti-Corruption Department asking him to reply to the charge
sheet and to, state whether he would like to be heard in
person. The respondent replied that be wanted an
opportunity of being heard in person. There was however no
enquiry at all, and much later, by an order dated 23/26th
May 1958, the Punjab Government reverted him to his
substantive post in the Delhi. Administration without
making any reference to the- charges.
The respondent thereupon challenged the order on the grounds
namely (1) that on the expiry of the period of probation and
on his passing the departmental examinations he became
entitled to a substantive permanent appointment; (2) that
the impugned order terminated his service under the Punjab
Government and removed him from the said service, in viola-
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tion of the provisions of Art. 311(2) of the Constitution;
and (3) under r. 9 of the Punjab Civil Services (Punishment
and Appeal) Rules, 1952, it was mandatory that, before his
employment as a probationer could be terminated, be should
have been apprised of the grounds of the proposed
termination and given an opportunity to show cause against
it.
The High Court accepted the second contention and allowed
the petition.
In appeal to this Court,
HELD : (1) Merely because the respondent had passed all the
departmental examinations and completed the period of
probation fixed, he could not be considered to be holding
the post substantively, or as being entitled to it. [239 E-
F]
(2) The respondent could not complain against the order
reverting him to his former post because, the order of
reversion was not by way of punishment. [239 F]
The circumstances preceding or attendant on the order of
termination of service of a public servant have to be
examined in each case, f(t determining whether the order was
by way of punishment. The motive behind it is immaterial.
it is only in a case whether either of the two tests,
namely, (a) whether the public servant had a right to the
Post or rank. or (b) whether the public servant, no matter
whether he was a probationer or a temporary servant, has
been visited with evil consequences or an aspersion has been
cast on his character or integrity, that the order could be
said to be by way of punishment. But the services of a
temporary
235
servant or a probationer can be terminated under the rules
of his employment and such termination without anything
more, will not attract the operation of Art. 311. [240 A;
244 A-B, C-D]
Parshotam Lal Dhingra v. Union of India, [1958] S.C.R. 828,
State of Orissa v. Rain Narayan Das, [1961] 1 S.C.R. 606, R.
C. Lacy v. State of Bihar, C.A. No. 590 of 1962 dated 23-10-
63, A G. Benjamin v. Union of India-, C.A. No. 1341/66
decided on 13-12-66, followed.
Madan Gopal v. State of Punjab, [1963] 3 S.C.R. 716, State
of Bihar V. Gopi Kishore Prasad, A.I.R. 19 S.C. 689 and
Jagdish Mitter V. Union of India, A.I.R. 1964 S.C. 449.
referred to.
(3) As the High Court had not considered the contention of
the respondent based on r. 9 of the Punjab Civil Services
(Punishment and Appeal) Rules, 1952, the matter should be
remanded to the High Court for consideration of that
question. [244 H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 433 of 1965.
Appeal from the judgment and order dated January 7, 1963 of
the Punjab High Court in Letters Patent Appeal No. 157 of
1957.
Vikrant Chand Mahajan, R. N. Sachthey and S. P. Nayar, for
the appellants.
Sardar Bahadur, Arub B. Saharya, Vishnu B. Saha a and
Youginder Khushalan, for the respondent.
The Judgment of the Court was delivered by
Mitter, J. 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
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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.
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 December 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 others, on the
advice of the Punjab Public Service Commission. 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 De-Duty Commissioner, Amritsar in
the P.C.S. (Executive Branch Cadre) on January 24, 1953. He
passed all the departmental examinations prescribed under
rule
236
21 of the Punjab Civil Service (Executive Branch) Rules,
1930. Under r. 22 of the aforesaid rules, he was to remain
on probation 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 maybe. In his case, the
period of probation expired in July 1954. The same was
however not extended by any order of the Governor of Punjab.
The petitioner claimed that under 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 Punjab, Anti-Corruption Department, asking
him to reply to the charge sheet within a fortnight 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 purporting to be one,
under 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.
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.
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 unsatisfactory record or unfavourable reports
implying his unsuitability for service and given an
opportunity to show cause against the same. before any
orders were passed by the authority competent to terminate
the appointment. The petitioner was never apprised of the
rounds 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. Accordingly the petitioner prayed
that the said order of 23/26th May 1958 be quashed and
suitable relief be given to him.
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The order complained of runs as follows
"The Governor of Punjab is pleased to revert
Shri Sukh Rai 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."
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
237
Punjab Civil Services (Punish ment 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.
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.
The points put forward before the learned single Judge who
heard the petition were :
(1) On the expiry of the period of probation and on his
passing the departmental examinations, the petitioner became
qualified for substantive permanent appointment.
(2) The impugned order in fact terminated his 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 charges 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.
(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 proposed
termination and given an opportunity to show cause against
it.
The learned single Judge held that the petitioner bad not
acquired the status of a permanent member of the Punjab
Civil Service merely by efflux of time and by reason of his
having passed the departmental examinations. He further
held that the petitioner continued only in an officiating
capacity. The second point also was turned down by the
learned Judge holding that the petitioner’s case was one of
reversion and not of termination of service as the
petitioner was never appointed in a permanent capacity and
was not visited with any evil consequences. In coming to
this conclusion the, learned single Judge relied on several
decisions starting from the case of Parshotam Lal Dhingra v.
Union of India(1).
(1) [1968] S.C.R. 828.
238
The learned single Judge examined the third point at some
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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 1, Part 1. 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 4 cadre’
contained in r. 29 and "it was submitted that if the peti-
tioner 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 benefit 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.
The appeal was allowed by the Letters Patent Bench. It ap-
pears that the Bench examined only the second point urged
before the learned single Judge and over-ruling his decision
allowed the appeal quashing the order 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 (1) and The State of Bihar v. Gopi
Kishore Prasad (2) . 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 should not be passed unless the person concerned
had been given reasonable opportunity of showing cause
against the action proposed 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 :
(1) [1963] 3 S.C.R. 716.
(2) A.I.R. 1960 S.C. 689.
239
.lm15
"When the charge 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 Rain Narayan Das’s case, as laid down by the
Supreme Court in Madan Gopal v. The State of Punjab &
others(1)."
The Bench however observed that although 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
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the case differed in principle either from Gopi Kishore
Prasad’s(2) case or Madan Gopal’s(1) 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.
We find ourselves unable to accept the reasoning or the con-
clusion arrived at by the learned Judges 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 was 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 (3) case.
"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 right to reduce him to a lower
post does not mean that an order of reduction
of a servant to a lower post or rank cannot in
any circumstances 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
(1) [1963] 3 S.C.R. 716. (2) A.T.R. 1960 S.C.
689.
(3) [1958] S.C.R. 828.
240
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 taken as a dismissal or
removal from service............."
In the case of State of Orissa and another v. Ram Narayan
Das(1) 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 which 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 the proposed action in
terms of Art. 31.1(2) and that he was not give an
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opportunity to be heard nor was any evidence taken on the
chaires. It was pointed out by this Court that the enquiry
against the respondent was only for ascertaining whether lie
was fit to be confirmed, and although "an order discharging
a public servant, even if a probationer-, in in 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(2) case on the --round that there the
public 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(1) case that
"...... 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 laid down
in Parshotam Lal Dhingra’s (3 ) ."
In the result the appeal of the State was allowed.
Reference may also be made to the case of R. C. Lacy v. The
State of Bihar- and other(1). In this case the appellant
who was working, as in Assistant Professor of Botany in
Class IT Bihar Educational Service was temporarily promoted
to Class I of the said service against a Permanent post
created in April 1949 and
(1) [1961] 1 S.C.R. 606. (2) A.I.R. 1960
S.C. 689.
(3) [1958] S.C.R. 828.
(4) Civil Appeal No. 590/1962 decided on 23-10-63.
241
appointed Professor of Botany in the college where he was
working. 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 goodwill 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 11 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
"the enquiry which was held by the
Commissioner in this case was in the nature of
a preliminary enquiry to enable 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
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regular departmental enquiry as envisaged by
the rules and Art. 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.
In Madan Gopal v. State of Punjab(1) the termination of the
appellant’s service was held to be in violation of Art.
311(2) of the Constitution. 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 ratification and called upon to show cause
why disciplinary action should not be taken against him.
The appellant submitted his explanation and the Settlement
Officer who had sent out the charge sheet submitted his
report to the Deputy Commissioner that the charge relating
to receipt of illegal gratification had been proved.
Thereupon the Deputy Commissioner ordered that the services
of Madan Gopal be terminated forthwith and that in lieu of
notice he would receive one month’s
(1) [1963] 3 S.C.R. 716.
242
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
"Such an enquiry and order consequent upon the
report made in the enquiry will not fall
within the principle of Ram Narayan Das’s(1)
case."
In the result, the appeal was allowed.
In Jagdish Mitter v. Union of India(1) this Court allowed
the appeal of the appellant who was appointed as a temporary
second division clerk in the General Post Office, 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 LO examine the question about the
suitability of the said servant to. be, continued and:
"a 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 proceedings 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 formal departmental enquiry in
that behalf. If such a formal enquiry is
held, and an order terminating the services of
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a temporary 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 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 termination
of service of a temporary servant and that the form in which
the order terminating his services was expressed would not
also be decisive. If a
(1) [1961] 1 S.C.R. 606.
(2) A.I.R. 1964 S.C. 449.
243
formal departmental enquiry had been held in which findings
were recorded against the temporary servant and as a result
of the 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 dismissal of the
temporary servant. The order of discharge of the appellant
ran as follows :
"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 months notice
of discharge with effect from November 1,
1949."
According to this Court, the order cast an aspersion on the
temporary servant and in substance it amounted to an order
of dismissal.
The last decision to which we may refer is the one in A. G.
Benjamin v. Union of India(1). 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
Organisation sent a notice to him asking him to show cause
why disciplinary 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 Secretary that :
"The departmental proceedings will take a much
longer time and we are not sure whether after
going through all the formalities we will be
able to deal with the accused 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 appellant 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 (2 ) case
and held that the principle of that case could not be
applicable.
(1) Civil Appeal No. 1341/1966 decided on 13-12-1966. (2)
(19631 3 S.C.R. 76.1
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244
On a conspectus of these cases, the following propositions
are clear:
1. The services of a temporary servant or a probationer
can be terminated under the rules of his employment and such
termination without anything more would not attract the
operation of Art. 31 1 of the Constitution.
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.
3. If the order visits the public servant with any evil
consequences 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.
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 service, does not attract the
operation of Art. 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged
Art. 311 i.e. an Enquiry Officer is appointed, a charge
sheet submitted, explanation called for and considered, any
order of termination of service made thereafter will attract
the operation of the said article.
In this case the departmental enquiry did not proceed beyond
the stage of submission of a charge sheet followed by the
respondent’s explanation thereto. The enquiry was not
proceeded with, there were no sittings of any Enquiry
Officer, no evidence recorded and no conclusion arrived at
on the enquiry. In these circumstances, the principle in
Madan Gopal’s(1) case or Jagdish Mitter’s (2) case will not
be applicable. The case is in line with the decisions of
this Court in State of Orissa v. Ram Narain Das(3). R. C.
Lacy v. The State of Bihar(3) and A. G. Benjamin v. Union
of India(5).
In this view of the matter. we are unable to concur with the
opinion of the Division Bench of the Punjab High Court.
This does not however conclude the matter. The respondent
also complained against the non-observance of the Punjab
Civil Services (Punishment and Appeal) Rules. The learned
single Judge of the Punjab High Court does not appear to
have expressed 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
(1) [1963] 3 S.C.R. 716. (2) A.I.R. 1964 S.C. 449.
(3) [1961] 1 S.C.R.606. (4) C.A. No. 590/1962
(5) C.A No. 1341/66 dated 13-12-66.decided on 23-10-68.
245
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.
246