Case: Ram Saran Dass Vs. State of Punjab

order was in substance an order of dismissal and as such, amounted to punishment under Art. 3 II of the Constitution and so, he contended that since the said order had been passed without complying with the mandatory provisions of Article 311(2) it was invalid Alternatively, the appellant urged that the impugned order had been pasted mala fide and in an arbitrary capricious and unconstitutional manner, and his case was that the exercise of the power by the governor to terminate his services which was mala fide was open to challenge on that ground alone.( 3 ) As we have already mentioned, the High court of Punjab dismissed the appellants petition in limine and so the respondent had no occasion to file a return in respect of the allegations made by the appellant. After the appellant was granted special leave to appeal So this court, the respondent has appeared and by C.M P. No. 865/1963 it has prayed that it should be allowed to file its counter affidavits in reply to the appellants case. We have accordingly allowed this application and taken on record the affidavits by Mr. Bhim Singh and M. S. C. Jain who is the Deputy secretary to the government of Punjab (Administration and Political Deptt).( 4 ) As we have briefly indicated, the petition filed by the appellant makes serious allegations in support of his, case that the impugned order announces to punishment and has been passed mala fide. It appears that the High court was not impressed by these allegations, and so, there to dismiss the petition summarily. In our opinion, the High court should not have adopted such as course the present case. It may sound dementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High court under Art.226 and contends that the termination of his services, though ostensible made in exercise of the power conferred under rule 23 of the Rules, really amounts to his dismissal or that its exercise is mala fide, the High court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were what would be the result of the said finding on his argument that the impugned order amounts to dismissal, or has been pasted mala fide.( 5 ) The learned Deputy Advocate General who appeared before us on behalf of the respondent attempted to the argue that ever if all allegations made by the appellant in his writ petition are assumed to be true, that would not justify his contention that the impugned order amounts to his dismissal, or that the said order was made mala fide. We are inclined to hold that in a case of this kind, such an approach would be open to the criticism that it is casual and superficial. If the appellant is not able to prove any of the allegations which he has made in his writ petition, then, of course, there is an end of his case. If, on the other hand, the appellant is able to prove all or some of the allegations made by him two questions will fail to be considered. does the proof the said allegations justify the contention of the appellant that the impugned order, is in substance, an order of dismissal. There can be no doubt that in such cases, the form in which the order has been passed cannot be regarded as decisive. If in the light of the evidence adduced before it, the court is satisfied that not withstanding the ostensible form in which the impugned order has been passed, in substance it amounts to the appellants dismissal then the court may be driven to the conclusion that Art. 311 applied to the case and non - compliance with the mandatory, provisions of Art. 311 (2) may render the order invalid. The other question which may also require consideration is; if the appellant is able prove the allegations made by him. Would that justify his grievance.. that the Exercise of she powers conferred on the governor under Rule 23 the Rules, was mala fide. In that connection it will necessary to examine the question as to whether proof of mala fide against Mr. Bhim Singh can introduce an element of mala fides in the order ultimately passed by the governor. We wish to express no opinion on any of these points. We have set out these considerations to indicate why we think that it would have been more appropriate if the High court had called upon the respondent to file its return and then examined the merits of the writ petition filed by the appellant.( 6 ) The learned Deputy Advocate General no doubt suggested that we might deal with the appeal on the merits ourselves, but we take the view that it is necessary that the questions of facts raised by the appellant should first betrayed by the High court and if either party it aggrieved by the view that the High court may take and comes to this Court in appeal, we should have the benefit of the finding of the High Court that is why we do not propose to deal with the merits of the appeal ourselves at this stage. In a case of this kind where serious allegations are made by the appellant against responsible officers of the State, it may be desirable not to rely merely on affidavits, but to take evidence in court that however is a matter which the High court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence in support of his allegations the High court may allow him to do so. In that extent the respondent also may be called upon to give evidence in rebuttal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The main contention which has been urged before us on his behalf by Mr. Dayal is that having regard to the all gations made by the appellant in his writ petition: the High court should not have summarily rejected his petition. In our opinion, this contention is well founded and must bethe appellant was granted special leave to appeal So this court, the respondent has appeared and by C.M P. No. 865/1963 it has prayed that it should be allowed to file its counter affidavits in reply to the appellants case.We have accordingly allowed this application and taken on record the affidavits by Mr. Bhim Singh and M. S. C. Jain who is the Deputy secretary to the government of Punjab (Administration and Political Deptt).( 4 ) As we have briefly indicated, the petition filed by the appellant makes serious allegations in support of his, case that the impugned order announces to punishment and has been passed mala fide. It appears that the High court was not impressed by these allegations, and so, there to dismiss the petition summarily. In our opinion, the High court should not have adopted such as course the present case. It may sound dementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High court under Art.226 and contends that the termination of his services, though ostensible made in exercise of the power conferred under rule 23 of the Rules, really amounts to his dismissal or that its exercise is mala fide, the High court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were what would be the result of the said finding on his argument that the impugned order amounts to dismissal, or has been pasted mala fide.( 5 ) The learned Deputy Advocate General who appeared before us on behalf of the respondent attempted to the argue that ever if all allegations made by the appellant in his writ petition are assumed to be true, that would not justify his contention that the impugned order amounts to his dismissal, or that the said order was made mala fide. We are inclined to hold that in a case of this kind, such an approach would be open to the criticism that it is casual and superficial. If the appellant is not able to prove any of the allegations which he has made in his writ petition, then, of course, there is an end of his case. If, on the other hand, the appellant is able to prove all or some of the allegations made by him two questions will fail to be considered. does the proof the said allegations justify the contention of the appellant that the impugned order, is in substance, an order of dismissal. There can be no doubt that in such cases, the form in which the order has been passed cannot be regarded as decisive. If in the light of the evidence adduced before it, the court is satisfied that not withstanding the ostensible form in which the impugned order has been passed, in substance it amounts to the appellants dismissal then the court may be driven to the conclusion that Art. 311 applied to the case and noncompliance with the mandatory, provisions of Art. 311 (2) may render the order invalid. The other question which may also require consideration is; if the appellant is able prove the allegations made by him. Would that justify his grievance.. that the Exercise of she powers conferred on the governor under Rule 23 the Rules, was mala fide. In that connection it will necessary to examine the question as to whether proof of mala fide against Mr. Bhim Singh can introduce an element of mala fides in the order ultimately passed by the governor. We wish to express no opinion on any of these points. We have set out these considerations to indicate why we think that it would have been more appropriate if the High court had called upon the respondent to file its return and then examined the merits of the writ petition filed by the appellant.( 6 ) The learned Deputy Advocate General no doubt suggested that we might deal with the appeal on the merits ourselves, but we take the view that it is necessary that the questions of facts raised by the appellant should first betrayed by the High court and if either party it aggrieved by the view that the High court may take and comes to this Court in appeal, we should have the benefit of the finding of the High Court that is why we do not propose to deal with the merits of the appeal ourselves at this stage. In a case of this kind where serious allegations are made by the appellant against responsible officers of the State, it may be desirable not to rely merely on affidavits, but to take evidence in court that however is a matter which the High court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence in support of his allegations the High court may allow him to do so. In that extent the respondent also may be called upon to give evidence in rebuttal.