BISHAN LAL GUPTA A

STATE OFHARYANA AND ORS.

January 12, 1978

[M. H. BEG, c. J., P. N. BHAGWATI AND D. A. DESAI, JJ.] B

(,'onstitution of India, Articles 136 and 311 Article 136 : Interference with, when warranted-Article 311 : Inquiry for determining, suitability of probationer to continue in service, whether amounts to "punishment"-Removal from service, probationer vis a vis confirmed Government servant.

Complaints \Vere received against the petitioner, a probationer in the Haryana Civil Service (Judicial Br8'nch), and the High Court held an inquiry C to determine his suitability to continue in service.

Show cause notices were issued and ihe petitioner was given reasonable opportunity to be heard, but it

was found that his explanations were belied by documentary evidence on record.

On the recommendation of the High Court, the State Government terminated his services by a.n innocuously worded order, after considering his further explanations. Three questions arose before this Court, firstly, whether the inquiry held by the High Court amounted to "punishment" within tfte meaning of Article 311, secondly whether probationers and confirmed Government servants stand at par in such cases and thirdly, whether on mere techni- D cal pleas, this Court should interfere under Article 136 of the Constitution.

Dismissing the special leave petition, the Court,

HEID : l. This Court would not interere under Article 136 of the Consti tution on a merely technical plea. It is only if patent facts disclose a serious enough infringernent of law as well as indubitably damaging and undeserved consequences upon a petitioner that the court's conscience could be so moved as to induce it to interfere.

[519 D-E] E

2. If the enquiry conducted and notices given are intended only to determine whether a probationer, who bas no fixed or fully formed right to continue in service (treated in the eye of law as a case of "no right" to continue in service), should be continued and more serious action is not contemplated, it means that no stigma is intended te be cast, even if the reputation of the probationer is to some degree affected, if those facts can not reasonbly be disputed by him.

In the eye of law, it is not a case of punishment, but of termination of service F simpliciter, unless the individual concerned bas suffered a substantial loss of reputation which may affect his future prospects.

[519 A-C]

Shamsher Singh v. State of Puniab, 1975(1) SCR 814; State of Puniab & Anr. v. Sukh Rai Bahadur 1968 II SLR 70l=AIR 1968 SC 1089; Ram Goval Chaturvedi v. State of Madhya Pradesh 1969 SLR 429; S. P. Vasudeva v. State of Haryana and Ors .. A.I.R. 1975 S.C. 2292; Champaklal v. Union of India A.I.R. 1964 S.C. 1854; State of Bihar and Ors. v.

Shiva Bhukshuk Mishra, A.I.R. 1971 S.C. 1011; Purshottamlal Dhingra v. Union of India, A.I.R. 1958 G S.C. 38; The State of Orissa & Anr. v. Ram Narayan Das, A.I.R.

1961 S.C. 177; Ranendra Chandra Banerjee v. The Union of India & Anr., A.I.R. 1963 S.C. 1552; State of Uttar Pradesh v. Akbar Ali Khan A.I.R. 1966 S.C. 1842 referred to.

~- There should be some difference, as to the nature of, or the depth of the inquiry to be held, as between a probationer whose service$ c~ be termin.ated by a notice and a confirmed Government servant who has a nght to continue in service until he reaches a certain age. A confirmed Government servant's H dismissal or removal is a more serious matter. This difference must necess:irily be reflected in the nature of inquiries for the two different purposes. Neither can be "punished". without a formal charae and ina_uiry. but a less formal

A inquiry may be sufficient to determine whether a probationer should be con tinned in service.

He has no "right'' to continue to serve without justifying the continuance. [519 G-H, 520 A]

C1v1L APPELLATE JURISDICTION : Petition for Special leave to Appeal (Civil) No. 3818 of 1976.

From the Judgment and Order dated the 12th August. 1976 of B the Punjab and Haryana High Court in Regular First Appeal No. 266/70.

G. L. Sa11ghi and E. C. Agrawala for the Appellant/Petitioner R. N. Sachthey for Respondents 1 and 3.

Hardev Singh and R. S. Sodhi for Respondent No. 2. c The Judgment of the Court was delivered by

BEG, C.J .-The Special Leave Petition before us arises out of a suit in which a point arose which had been referred for decision by a learned Judge of the High Court of Punjab and Haryana to a larger Bench on the ground that it involved an important question of law of some difficulty.

This Court issued notices to the State of Haryana and other parties and we have heard counsel for both sides.

Although D the case does not deserve grant of special leave, we propose to dismiss the petition with a statement of the position which may clarify what seems to have troubled the Judges of the High Court.

The petitioner before us had joined the Haryana Chil Service (Judicial Branch) as a probationer on 8th December, 1966.

He was served with a show cause notice on 22nd October, 1968, asking him E to explain certain allegations.

He was served with another show

cause notice on 18th June, 1969, asking him to explain probably the same, or at any rate, similar allegations again.

He replied to the first show cause notice on 15th November, 1968, and to the second on 4th July, 1969.

The High Court considered his explanations and found that they were similar but belied by documentary evidence on record.

The High Court then made a recommendation to the State Government that the services of the applicant may be terminated.

On 18h June, 1969, still another notice was served upon the applicant by the Chief Secretary to the Government which stated inter alia :

"It may be noted that both your earlier explanations and the one which you may submit now in pursuance of this revised notice, will be takn into consideration while determining your suitability for being retained in service.

The reply to this notice should !>e sent through the Registrar, High Court of Punjab and Haryana, within the stipulated period."

After considering his further explanation the services of the applicant were terminated by an innocuously worded order dated l 1th September, 1969.

The submission on behalf of the petitioner was

1that, although, the order of termination of his services was innocuous, .he was entitled to a fuller enquiry contemplated by Article 311 of the Constitut, ion as he was, in substance, punished.

The petitioner relies strongly upon certain observations of this Court in Shamsher Singh _v.

Punjab(') which was also the case of a probationer whose services had been tennjnated.

Reliance is placed .on behalf of the State on : State of Punjab & Anr. v. S11kh Raj Bahadur,(2) and Ram Gopal Chaturvedi v. State of Madhya Prndesh( 3) and S. P. Vasudeva v. State of Haryana & Ors.(4) In the last mentioned case, Alagiriswami J ., speaking for the Court, .observed ;

"We may in this connection point out that where an order of reversion as in the present case, of a person who had no right to the post, does not show ex facie that he was being reverted as a measure of punishment or does not cast any stigma on him. the Courts will not normally go behind that order_ to see if there were any motivating factors behind that order.

Certain cases of this Court have taken that view.

Certain other cases have taken the view that it is open to the Court to go behind the order and find out if. it was intended as a measure of punishment and if so whether the formalities necessary have not been followed.

In cases where enquiries have been held before orders of reversion of a l'robationer to his former lower post or discharge of a probationer or discharge from service of a temporary servant were passed, certain decisions have taken the view that where the enquiry was held in order to find out the suitability of the official concerned the order would not be vitiated.

In certain other cases it has been held that the enquiry was held with a view to punish and as the enquiry did not satisfy the requirements of Article 311 the punishment was bad".

It was also pointed out :

"After aU no Government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, \vithout any rhyme or reason.

If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simpliciter and which is by way of punishment.

The whole position in law is rather confusing.

We think it is time that the whole question was considered de novo and it would be better for all concerned and avoid a Jot of avoidable litigation if it should be held that the reversion of a probationer, from a higher to a lower post, or the discharge of a probationer,

(1) [1975] (I) S.C.R. 814.

<(2) 1968 II SLR 701 : AIR 1968 S.C. 1089.

(3) 1969 SLR 429.

, (4) AIR 1975 SC 2292.

or the discharge from service of a temporary servant cannot be qnestioned except on the basis of ma.Ja fides in the making of the order".

In our opinion, the confusion, if it is there, could be cleared up by considering what was exactly found, on facts, by the Court in each • case.

It appears from the detailed findings given by the Trial Court upon issues of fact in the case before us that the petitioner was given a reasonable opportunity to be heard in reply even assuming that his services had been tertninated for faults found with his condnct in the course of either performance of his duties or relating to other matters relevant for assessing his suitability to serve as a Sub-Judge. He had ample opportunity to answer in writing whatever was alleged against him. No rule was shewn to us to support the view that anything were was needed if the intention was not to hold a full departmental trial to punish but a summary inquiry to determine only suitability to continue in service.

The High Court was not satisfied with his explanations.

It is difficult to see how a fuller enquiry, as contemplated by Article 311 of the Constitution, which also only requires a "reasonable opportunity of being heard" in respect of the charges made, could improve his position.

It may be that, if the petitioner had acquired a right to the post and was not a mere probationer whose services were being terminated, he could have, technically speaking, claimed a formally fuller process of hearing before he could be punished for a fault.

But, in the case before us, the petitioner had no right to continue in service despite adequate reasons for terminating hls services. He could, therefore, only claim a hearing which was reasonably sufficient and appropriate for determining whether there were adequate reasons to continue him in service, even if he could not be removed by way of punishment without a fuller inquiry. lt was observed in Champaklal v. Union of India(') in the case of a temporary Government servant :

"The contention on behalf of the appellant is that thls memorandum really amounted to a charge-sheet against the appellant and he was asked to give an explanation thereto and a'lso to state why disciplinary action should not be taken against him.

Stress is laid on the last sentence of the memorandum where the a.Ppellant was asked why disciplinary action shonld not be taken against him.

It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against hlm might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishlng hlm.

But, though thls may appear to be so, what is important to see is what actually happended after this memorandnm for the courts are not to go by the particular name given by aparty to a certain proceeding but are concerned with

(I) A.I.R. 1964 S.C. 1854.

......

the spirit and substance of it in the light of what preceded and succeeded it.

It is true that in the written statement of the respondent it is stated that from December 1953 onwards a deparmental enquiry was being conducted against the appellant, though the written statement went on to say that that departmental enquiry was not pursued as the evidence was not considered t<i' be conclusive. In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant.

This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were not pursued further.

It is however clear that no formal departmental enquiry as contemplated under Art. 311 (2) read with the relevant Central Services Rules was ever held after the notice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross-examine witnesses produced against him and would also have been entitled to lead evidence.

It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him, no departmental enquirv followed that memorandum and the matter was dropped".

We think that the position before us also is very similar.

No fullfledged departmental inquiry followed any show cause notice.

Proceedings for punishment conld be deemed to have been "dropped".

The only result of what happened was an innocuous order of termination of service without stating any ground for the termination.

If this, in itself. inYOlved some reflection upon the petitioner's capabilities it cannot be helped. It was not undeserved.

Therefore, there could be no question of injustice.

The Division Bench to which the case was referred for hearing considered the rules applicable to termination of services of a probationer and found that they had been fully complied with.

It also examined cases which laid down that the form of the order is not decisive bnt the Court can be go behind the ostensibly innocuous order and investigate the real nature of \he proceedings.

The cases mentioned in this connection were : The State of Punjab & Ors. v. Sukh Raj Bahadur (supra), and the State of Bihar & Ors. v. Shiva Bhukshuk

Mishra.(') It then relied on cases in which the position of a probationer had been considered.

These were : Parshotam Lal Dhingra v.

Union<'/ India('); the State of Orissa & Anr. v. Ram Narayan Das('); and Renendra Chandra Banerjee v. the Union of India & Anr.('), State

(1) A.l.R. 1971 S.C. IOI I.

(2) A.I.R. 1958 S.C. 36.

(3) A.LR. 1961 S.C. 177 .

. (4) A.T.R. 1963 S.C. 1552.

. '. "

\ SUPREME COURT REPORTS

[1978] 2 S.C.R. 'A . f, Ut:ar Pradesh~- 'Akbar Ali Khizn('); the State of .Punjab & Anr. v.

, _ __,.,.. ..

Sukh Raj Baluulur (supra); Shamsher Sir.gh v. State of Punjab & Anr. (supra); and S. P. Vasudeva v. State of Haryana (supra). The deci- ' . sion in each of these case turned upon its own facts. It is only the -{ principle laid down which can be binding law.

After considering the cases mentioned above, the High Court reached the following conclusion :

"The members of the State Judicial Service sometimes do incur the displeasure of the litigants against whom they decide cases.

Such litigants do not spare them and in many cases send a large number of complaints against them to this Court.

If this Court were to act indiscriminately on such complaints without getting them verified by the District and S<ss; ons Judges the members of the judicial service would be left with little .or no security of tenure. . It is precisely for trus reason that this Court usually has an enquiry held into .. the matter before getting the explanation of the judicial officer concerned.

Sometimes allegations of corruption are also levelled against judicial officers. Preliminary enquiries are also held to verify such allegatioris before deciding whether a full fledged enquiry should be held against the judicial officer who is a probationer for awarding him a punishment or . his explanation should be obtained for deciding whether he should be continued in service or not. In the latter class of cases the notices issued usually mention that explanation was being called for taking action under rule 7 (2) appearing in part D of the Haryana Civil Service (Judicial Branch) Rules, 1951, read with rule 9 of the Punjab Gvil Services (P\lnishmerit and Appeal) Rules 1952.

Such a mention of the rules. gives a clear indication to the judicial officer concerned that no action to impose a punishment on him was envisaged.

This is precisely what was done in the instant case and the appellant cannot contend with any justification that his rights under Article 311 (2) of the Constitution have been violated".

In Shamsher Singh's case (supra)· this Court said :

-- c. "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case.

If a probationer is discharged on the ground of misconduct, or inefficiency or for a siinilar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from ser- , vice within the meaning of Article 311 (2) of the Constitution".

(I) A. LR. 1966 S. C. 1842 .

These observations must, we think, be meant to cover those cases A. where, even though the probationer may have no right to continue in service, yet, the order terminating his service.§ casts a stigma on his name.

This means that the individual concerned must suffer a substantial loss of reputation which may affect his future prospects.

In that case, Justice requires a fuller hearing.

If, however, after going into the particular facts and circumstances of a case the C,0urt finds, as seems to be the position in the case before us, that the enquiry conduc- B led and notices given were intended only to arrive at a finding on the desirability of continuing a person in service, and more serious action was not contemplated, it means that no stigma was intended to be cast. It may be that, in some cases, the mere form does not indicate the exact nature and result of the proceeding judged by its nature and its effects upon a probationer.

To. some extnt the courts are bound to take 'into account what the incontrovertible evidence disclosed.

It C may conclude that, even if the reputation of a probationer was to some degree affected by what took place, yet, if those facts could not reasonably be disputed by him, it provided a sufficient ground for terminatin'

his sel\lices.

There is, in such cases, no injustice.

This Court would certainly not interfere under Article 136 of the Constitution on a merely technical plea that the case deserved a fuller enquiry.

It must be shewn that such an enquiry could serve a useful purpose.

The facts must indicate that if this fuller inquiry was held, the Govt. servant will be found to be blameless.

Otherwise, further prnlougatinn of such litigation is pointless.

It is impossible to lay down propositions which are so clear cut as E to cover every conceivable case.

Indeed, an attempt to do so may make the Jaw too rigid. It is only if patent facts disclose a serious enough infringement of law as well as indubitably damaging and undeserved consequences upon a petitioner that the Court's conscience could be so moved as to induce it to interfere under Article 136 of the Constitution.

We are quite ceIT, tin that this is not one of those cases.

On this ground alone this case could not be one in which we F could grant special leave to appeal.

There is, however, another point of view also, already indicated above, from which the case could be considered.

It is that the High Court held that this was not really a case of punishment.

On this aspect of the case, the High Court rightly seems to us to have proceeded on the view that there should be atleast some difference, as to the nature of or the depth of the inquiry to be held, as between a proba: tioner whose services can be terminated by a notice .and a confirn1ed Govt. servant who has a right to continue in service until he reaches a certain age.

It is true that neither can be "punished" without a for, ma! charge and inquiry.

But, a less formal inquiry may be sufficient,

as it was here, to determine whether a probationer, who has no fixed H or fully formed right to continue in service (treated in the eye of law as a case of "no right" to continue in service), should be continued.

A confirmed Govt. servant's dismissal or removal is a more serious matter.

A This difference must necessarily be reflected in the nature of the inquiries for the two different purposes.

We are satisfied that, on facts found, th>' findings on petitioner's suitability to continue in service were rightly not interfered with.

It was, in the eye of law, not a case of punishment but of termination of service simpliciter.

The petitlioner should be thankful that a more serious view was not taken of his short-

B comings.

Consequently, we dismiss this petition.

M.R.

Petition dismissed.