# PUNJAB v. SUXH llAJ (Mitter, 1.)

- **Citation:** [1968] 3 S.C.R. 234
- **Court:** Supreme Court of India
- **Decided:** 1968-02-22
- **Case number:** Civil Appeal No. 433 of 1965
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/punjab-v-suxh-llaj-mitter-1-4355
- **Pages:** 12

## Headnote

STA'll!: OF PUNJAB a AN1L
p,
SHRI SlJKH RA1 BAii;\ DUR
February 22, 1968
[], C. SHAH, V. RAMASWAMI AND G. K. MiTTEll; 11:]
Civil Service-Completion of probation-If probationer •ntltld to tub-·
stanllve oppointment-Reversiun to sub.rtanti•• par,,__Whon O/J!Utllts "'
punishment.
·
The respondent who was a permanent oJ!icial in the Delhi Administra·
lion was appointed to the Punjab Civil Service (I!Xecutive Blanch). He
was on probation in the new post for a period of 18 mootba mbject to ex·
tension of the period and subject to his completing training; He passed all
the departmental examinations. The periDd of probation expired in 1uly
1954, and there was no i;xtension of it. In January 1957, he received a
charge-oheet with a Jetter from the Anti-Corruption Department liskin1!: him
to reply to the charge sheet and to state whether he would like to be lioard
in person. 'The respondent replied that he 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
departtnental exarilinations he became entitled to a substantive permanent
appointment; (2) that the impugned order terminated his servioe under
the Punjab Government and removed him from the said service, in viola•
tion of the provisions of Art. 311 (2) of the Constitution; and (3) under
r. 9 of the Punjab Civil Services (Punishinent and Appeal) RUies, 1952,
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 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 depart·
mental examinations and completed the period of probation fixed, ho could
not be considered to be holding the post substantively, or as being entitled
to it. [239 E-FJ
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(2) The J'OllpODdent could not complain· againat the order reverting
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him to his form..- post because, the order of reversion was not by way
of puni5h!nent. [239 Fl
The cil'cwmtante$ preceding or attendant on the order of termination
of service of a public servant have to be examined in each case, for deter·
mining whether the order was by way of punishment. The mot!\" behind
it is immaterial. It is only in a case wliether either of the two
tests,
namely, (a) ,Whether the public servant had a right to the post or rank,
or (b) wbedier the public servant, no matter whether he WD a pi;obationer
R
or a temporary llOl'Vilnt, has been visited with evil' consequences.· or ·an
aspersion baa been cast ·on his character or integrity, that the order could
be il8id to be by way of' punishment. BiJt· !lie serviCes of a· temporacy
• .
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PUNJAB v. SUXH llAJ (Mitter, 1.)
235
servant or :a probationer can be terminated under the rules of his employment and such termination without anything more, \\ill 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. Ram Narayan Das, [1961] 1 S.C.R. 606, R. C. Lac,y v. State of
Bihar, C.A. No. 590 of 1962 dated 23-10,63, A G. Benjamin v. Union of
lndi<.·, CA. No. 1341/66 decided on 13-12-66, followed.
Madan Gopal v. State of Punjcb, [1963] 3 S.C.R. 716, State of Bihar v.
Gopi Kishore Prasad, A.l.R. 1960 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 Qvil Services (Punishment and
Appeal) Ruks, J 952, the matter should be remanded to the High Court
for consideration of that questio

## Text

STA'll!: OF PUNJAB a AN1L
p,
SHRI SlJKH RA1 BAii;\ DUR
February 22, 1968
[], C. SHAH, V. RAMASWAMI AND G. K. MiTTEll; 11:]
Civil Service-Completion of probation-If probationer •ntltld to tub-·
stanllve oppointment-Reversiun to sub.rtanti•• par,,__Whon O/J!Utllts "'
punishment.
·
The respondent who was a permanent oJ!icial in the Delhi Administra·
lion was appointed to the Punjab Civil Service (I!Xecutive Blanch). He
was on probation in the new post for a period of 18 mootba mbject to ex·
tension of the period and subject to his completing training; He passed all
the departmental examinations. The periDd of probation expired in 1uly
1954, and there was no i;xtension of it. In January 1957, he received a
charge-oheet with a Jetter from the Anti-Corruption Department liskin1!: him
to reply to the charge sheet and to state whether he would like to be lioard
in person. 'The respondent replied that he 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
departtnental exarilinations he became entitled to a substantive permanent
appointment; (2) that the impugned order terminated his servioe under
the Punjab Government and removed him from the said service, in viola•
tion of the provisions of Art. 311 (2) of the Constitution; and (3) under
r. 9 of the Punjab Civil Services (Punishinent and Appeal) RUies, 1952,
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 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 depart·
mental examinations and completed the period of probation fixed, ho could
not be considered to be holding the post substantively, or as being entitled
to it. [239 E-FJ
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(2) The J'OllpODdent could not complain· againat the order reverting
G
him to his form..- post because, the order of reversion was not by way
of puni5h!nent. [239 Fl
The cil'cwmtante$ preceding or attendant on the order of termination
of service of a public servant have to be examined in each case, for deter·
mining whether the order was by way of punishment. The mot!\" behind
it is immaterial. It is only in a case wliether either of the two
tests,
namely, (a) ,Whether the public servant had a right to the post or rank,
or (b) wbedier the public servant, no matter whether he WD a pi;obationer
R
or a temporary llOl'Vilnt, has been visited with evil' consequences.· or ·an
aspersion baa been cast ·on his character or integrity, that the order could
be il8id to be by way of' punishment. BiJt· !lie serviCes of a· temporacy
• .
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PUNJAB v. SUXH llAJ (Mitter, 1.)
235
servant or :a probationer can be terminated under the rules of his employment and such termination without anything more, \\ill 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. Ram Narayan Das, [1961] 1 S.C.R. 606, R. C. Lac,y v. State of
Bihar, C.A. No. 590 of 1962 dated 23-10,63, A G. Benjamin v. Union of
lndi<.·, CA. No. 1341/66 decided on 13-12-66, followed.
Madan Gopal v. State of Punjcb, [1963] 3 S.C.R. 716, State of Bihar v.
Gopi Kishore Prasad, A.l.R. 1960 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 Qvil Services (Punishment and
Appeal) Ruks, J 952, the matter should be remanded to the High Court
for consideration of that question. [244 HJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 433 of
1965.
Appeal from the iudgment and order dated January 7, 1963
of the, Punjab High Court in Letters Patent Appeal No. 157 of
1957.
Vikram Chand Mahajan, R. N. Sachthey and S. P. Nayar,
for the appellants .
Sardar Bahadur, Arub B. Saharya, Vishnu B. Saharya and
Youginder Khushalani, for the respondent.
The Judgment of the C2urt 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 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 DecemOer 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
236
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(1968] 3 S.C.R.
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.
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 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.
The order complained of runs as follows :-
"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."
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
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PUN.JAB v. SUKH RA.J (Mitter, .J.)
237
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.
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 :
(l) 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 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.
(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 .
. 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(').
(Il [I968J s.c.~. 828.
238
(1968] 3 S.C.R.
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.
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:
(1) (1963] 3 S.C.R. 716.
(2) A.l.R. 1960 S.C. 689.
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PUNJAB v. sum RAJ (Mitter, 1.)
239
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"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, .
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Such an enquiry and any action consequent on such an
enquiry would not be covered by principle of Ram
a
N flT,ayan Das' s case, as laid down by the Supreme COurt
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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(2 )
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.
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(8 ) 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 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
(I) [1963] 3 S.C.,R. 716.
(2) A.I.R. 1960 S.C. 689.
(3) [1958) S.C.R. 828.
240
SUPRBMB COURT REPORTS
[1968] 3 s.c.R.
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(')
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(2 ) 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
". . . 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(8 )."
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 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) [1961) 1 S.C.R. 606.
(2) A.l.R. 196° S.C. 689.
(3) (1958) S.C.R. 828.
(4) Civil Appeal No. 590/1962
decided on 23-10-63.
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PUNJAB v. SUKH RAJ (Mitter, /,)
241
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
"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.
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(') 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
(1) [1963] 3 S.C.R. 716.
~42
SUPRBMB COURT REPOllTS
[1968] 3 S.C.R.
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(') case."
In the result, the appeal was allowed.
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 :
"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
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) [1961] I S.C.R. 6~6.
(2) AJ.R. 1964 S.C. 449 .
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
PUNJAB v. SUK11 RAJ (Mitter, I.)
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 :
"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
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<
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 :
"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·
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. 1341/1966 decided on 13-12·196b.
(2) [1963] 3 S.C.R. 76.1
244
SUPREME COURT RBPOllTS
(1968) 3 S.C.R.
On a conspectus of these cases, the following propositions are.
A
.cJear:
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.
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 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.
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.
5. If there be a full-scale departmental enquiry envisaged by
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.
In this case the departmental enquiry did not proceed beyond
the stage of submission of a charge sheet followed by the respon·
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(1),
R. C. Lac,v v. The State of Bihlll'(') and A. G. Benjamin v. Union
of India(').
In this view of the matter, we are unable to concur with the
opinion ot 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 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
(I) [1963J 3 S.C.R. 716.
(2) A.I.R. 1964 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 Ob 23-10-68.
B
c
D
E
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G
H
PUNJAB v. sum RAJ (Mitter, 1.)
245
A
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.
B
V.P.S.
Appeal allowed and case remanded.