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High Court Of Delhi
SAMSHER SINGH,ISHWAR CHAND - Appellant
Versus
STATE OF PUNJAB - Respondent
Civil 2289 of 1970.
Decided On : 08/23/1974
CONSTITUTIONAL LAW - APPOINTMENT AND REMOVAL OF SUB-JUDGES - POWER OF GOVERNOR - WHETHER GOVERNOR CAN ACT PERSONALLY OR ON THE ADVICE OF COUNCIL OF MINISTERS - SCOPE OF ARTICLES 233 TO 237 - PROTECTION OF ARTICLE 311 TO PROBATIONERS - TERMINATION OF SERVICE - WHETHER ENQUIRY NECESSARY - DISTINCTION BETWEEN TERMINATION FOR UNSUITABILITY AND PUNISHMENT FOR DELINQUENCY.
Fact of the Case:
Two sub-judges, one on probation and the other having completed his probation, were terminated from service. They challenged the termination orders, contending that the Governor, being the appointing authority under Article 234 of the Constitution, must exercise the power of removal personally and not on the advice of the Council of Ministers.
Finding of the Court:
The Court held that the Governor exercises the powers like other executive powers on the aid and advice of the council of ministers and not personally. The Court also held that a probationer is entitled to the protection of Article 311 of the Constitution if the termination of his service is by way of penalty. The Court further held that the substance and not the form of the order is decisive in determining whether the termination of service is by way of penalty.
Issues: 1. Whether the Governor can act personally or on the advice of the Council of Ministers in the appointment and removal of sub-judges? 2. Whether a probationer is entitled to the protection of Article 311 of the Constitution? 3. Whether the termination of service is by way of penalty, if there is no enquiry?
Ratio Decidendi: 1. The Court held that the Governor exercises the powers like other executive powers on the aid and advice of the council of ministers and not personally. The Court relied on the constituent Assembly debates and the case law on the subject to arrive at this conclusion. 2. The Court held that a probationer is entitled to the protection of Article 311 of the Constitution if the termination of his service is by way of penalty. The Court held that the substance and not the form of the order is decisive in determining whether the termination of service is by way of penalty. 3. The Court held that the termination of service is by way of penalty, if there is no enquiry. The Court held that an enquiry is necessary to determine whether the termination of service is for unsuitability or for misconduct.
Final Decision: The Court set aside the termination orders and declared that the sub-judges were entitled to the protection of Article 311 of the Constitution.
( 1 ) SAMSHER Singh was appointed as sub- judge on 1. 5. 64 He was on probation. On 22. 3. 67, Government gave him a show cause notice as to why his services should not be terminated since he was found unsuitable and then on 29. 4 67, his service was terminated with immediate effect under Rule 9 of Punjab Civil Service (Punishment and Appeal) Rules. Other appellant completed his 3 years probation on 11. 11. 6s. His services were dispensed with immediate effect under Rule 7 (3), Part D of P. CS. (Judicial Br.) Rules. They moved High Court without success and then they appealed to Supreme Court, Relying on the case Sardari Lal vs Union of India 1971. 3. SR. 461, they pleaded that as Governor was appointing authority U/art. 234 of the Constitution, he must exercise the power of removal personally Contention of the State was that the Governor exercises the powers like other executive powers on the aid and advice of the council of ministers and not pernonally. The Court upheld the contention of State on this constitutional question and over-ruled the decision of Sardari Lal.
( 2 ) IN the present appeals 2 rules which deal with termination of service of a probationer in Punjab are Rule 9 of Punishment and Appeal Rules, 1952 and Rule 7 (3) of P. C. S. (J) Rules. Rule 9 provides for termination of service of a probationer for unsuitability after an opportunity of show cause, Role 7 (3) lays down that if probationer is working against a permanent vacancy and his work is satisfactory then he may be confirmed on the recommendation of High Court and if his work is not satisfactory then either his service may be terminated or his probation may be extended. Rule 9 contemplates an enquiry while Rule 7 does not. The position of a probationer was considered in P. L. Dhingra s case 1958. S. C. R. 828, in which it was observed that if right exists under the contract or Rules to terminate service then motive operating on the mind of Government is not relevant and if termination is sought to be found on misconduct etc. then it is punishment. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order than that the services are terminated it can never amount to panishment in the facts and circumstances of the case. An authority may take the view that a probationer may be inadequate for the job or he may be discharged for any temperamental or other object not involving moral turpitude and in such a case no punishment is involved. Authority may in some cases be of the view that eonduct of probationer may result in dismissal on enquiry and may dispense with enquiry and simply discharge him without a stigma with a view to give him a chance to make good in other walks of life. If Government brands a probationer as incomptent then he is entitled to protection of Art. 311 per Gopi Kishore s case AIR. . 1960. S. C. 689.
( 3 ) THE fact of holding an enquiry is not conclusive. What is decisive is whether the order is by way of penalty per State Vs. Ram Narayan Das 1961. S C. R. 606. If there is enquiry, facts and circumstances should be looked into to find out whether order is one of dismissal in substance per Madan Gopal Vs. State 1963. 3. S. C. R. 716. If there is preliminary enquiry to find out if disciplinary enquiry should be held or not or to dispense with service then Art. 311 is not attracted per R. C. Lacy Vs. State of Bihar C. A. 590/62, D/ 23. 10. 63 C. G. Shah Vs. Union of India 1964. S. C. R. 190. A Statement in order that temporary servant is undesirable imports an element of punishment per Jagdish Mitter Vs. Union of India AIR 1964 S. C. 449.
( 4 ) IF facts and circumstances of an order indicate that the substance of the order is by way of pena
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