# SHAMSHER SINGH v. PUNJAB

- **Citation:** [1975] 1 S.C.R. 814
- **Court:** Supreme Court of India
- **Decided:** 1974-08-23
- **Case number:** Civil Appeals Nos. 2289 of 1970
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shamsher-singh-v-punjab-6262
- **Pages:** 67

## Headnote

814
SHAMSHER SINGH & ANR.
AND
STATE OF PUNJAB
August 23, 1974
[A. N. RAY, C.J., D. G. PALEKAR, K. K. MATHEW, Y. V. CHANDRACHUD,
A. ALAGJRISWAMI, P. N. BHAGWATI
AND v. R. KRISHNA
IYER, JJ.J
President and Governor~Whether fornzal heads-Whether bound 'to act on
aid and advice of Council of Ministers-Articles 166(3), 154(1). 53(1)
of
constitution o j l ndia.
Constitution of India-Article 311-termination of service by innocuously
worded order whether hit by article 311.
A
B
Civil service probationer lvhether can be dee1ned to be confirmed on the exC
piry of probation period.
Pun.Jab Civil Service (Judicial Branch) Rules 1951 rr. 7. 9.
Constitution of India Article 235-lfigh Court whether can depute an executive authority to inquire into allegations made against subordinate judiciary.
Constitution of India, Article 234-Appointment and determination of services
of subordinate judges if to be made by Governor personally.
The appellant Shamsher Singh was a Subordinate Judge on probation.
His
5ervices were terminated by the Government of Punjab in the name of Governor
of Punjab by an order which did not give any reasons for the termination.
Likewise, the services of Ishwar Chand Agarwal were also term:nated by
the Government of Punjab in the nam~ of Governor on the recommendation of
the High Court. The appellants contended that the Governor as the constitutional
or t~ formal head of the State can GXercise powers and functions of appointment
and removal of members of the subordinate judicial service only personally. The
appellants placed reliance on the decision of this Court in Sardari Lal's case where
it is held that the satisfaction for n1aking an order under Article 311 is the personal
satisfaction of i.he President or the Governor. The State, on the other hand, contended that ihe Governor exercises pO¥iers of appointment and removal conferred
on him by or under the Constitu.tion like executive powers of the State Government only on the aid and adviee of his council of Ministers and not per5onally.
The Governor is by and under. the Constitution required to act in his discretion in
r.everal matters. Articles where the ~xpression "acts in his discretion'' is used in
relation to the powers and functions of the Governor are those which speak of
r.pecial responsibilities of the Governor. Our constitution embodies generally the
parliamentary or .::abinet system of Government of the Biritish model. Under this
system the President is the constitutional or formal head of thi UnTOn and exercises his powers and functions conferred on him by or under the Constitution on
Hie aid and advice of his council of Ministers. Under the cabinet system of Government, the Governor is the constitutional or formal head of the State and exercises all his powers and functions conferred on him by or under the Constitution
on the aid and advice of his council of Ministers, save in spheres \\'here the Governor is required by or under the Constitution to exercise his functions in his discretion. These appeals have been placed before a larger bench to consider whether
the decision in Sardari Lat's case correctly Jays down the '1a\v.
It was further contended that since the probationer continued in service after
the expiry of the maximum period of probation he became confirmed that the
termination was by way of punishment and was in violation of article 31 l; and
that the High Court failed to act in terms of the provisions of art. 235 of the Constitution and abdicated the control over subordinate judiciary by asking the
govern1nent to enquire through the vigilance department.
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SHAMSHER SINGH v. PUNJAB
8 15
(Per A. N. Ray C. J., Palekar, Mathew, Chandrachud. Alagiriswami, JJ).
HELD :-The decision in Sardari Lal's case that the President has to be satisfied personally in exerciso of executive power or function and that the functions
of the President cannot be delegated is not the correct statement of law and is
against the established and

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814
SHAMSHER SINGH & ANR.
AND
STATE OF PUNJAB
August 23, 1974
[A. N. RAY, C.J., D. G. PALEKAR, K. K. MATHEW, Y. V. CHANDRACHUD,
A. ALAGJRISWAMI, P. N. BHAGWATI
AND v. R. KRISHNA
IYER, JJ.J
President and Governor~Whether fornzal heads-Whether bound 'to act on
aid and advice of Council of Ministers-Articles 166(3), 154(1). 53(1)
of
constitution o j l ndia.
Constitution of India-Article 311-termination of service by innocuously
worded order whether hit by article 311.
A
B
Civil service probationer lvhether can be dee1ned to be confirmed on the exC
piry of probation period.
Pun.Jab Civil Service (Judicial Branch) Rules 1951 rr. 7. 9.
Constitution of India Article 235-lfigh Court whether can depute an executive authority to inquire into allegations made against subordinate judiciary.
Constitution of India, Article 234-Appointment and determination of services
of subordinate judges if to be made by Governor personally.
The appellant Shamsher Singh was a Subordinate Judge on probation.
His
5ervices were terminated by the Government of Punjab in the name of Governor
of Punjab by an order which did not give any reasons for the termination.
Likewise, the services of Ishwar Chand Agarwal were also term:nated by
the Government of Punjab in the nam~ of Governor on the recommendation of
the High Court. The appellants contended that the Governor as the constitutional
or t~ formal head of the State can GXercise powers and functions of appointment
and removal of members of the subordinate judicial service only personally. The
appellants placed reliance on the decision of this Court in Sardari Lal's case where
it is held that the satisfaction for n1aking an order under Article 311 is the personal
satisfaction of i.he President or the Governor. The State, on the other hand, contended that ihe Governor exercises pO¥iers of appointment and removal conferred
on him by or under the Constitu.tion like executive powers of the State Government only on the aid and adviee of his council of Ministers and not per5onally.
The Governor is by and under. the Constitution required to act in his discretion in
r.everal matters. Articles where the ~xpression "acts in his discretion'' is used in
relation to the powers and functions of the Governor are those which speak of
r.pecial responsibilities of the Governor. Our constitution embodies generally the
parliamentary or .::abinet system of Government of the Biritish model. Under this
system the President is the constitutional or formal head of thi UnTOn and exercises his powers and functions conferred on him by or under the Constitution on
Hie aid and advice of his council of Ministers. Under the cabinet system of Government, the Governor is the constitutional or formal head of the State and exercises all his powers and functions conferred on him by or under the Constitution
on the aid and advice of his council of Ministers, save in spheres \\'here the Governor is required by or under the Constitution to exercise his functions in his discretion. These appeals have been placed before a larger bench to consider whether
the decision in Sardari Lat's case correctly Jays down the '1a\v.
It was further contended that since the probationer continued in service after
the expiry of the maximum period of probation he became confirmed that the
termination was by way of punishment and was in violation of article 31 l; and
that the High Court failed to act in terms of the provisions of art. 235 of the Constitution and abdicated the control over subordinate judiciary by asking the
govern1nent to enquire through the vigilance department.
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SHAMSHER SINGH v. PUNJAB
8 15
(Per A. N. Ray C. J., Palekar, Mathew, Chandrachud. Alagiriswami, JJ).
HELD :-The decision in Sardari Lal's case that the President has to be satisfied personally in exerciso of executive power or function and that the functions
of the President cannot be delegated is not the correct statement of law and is
against the established and uniform view of this Court as embodied in se~eral decisions. 'fhe President as welI as the Governor is the constitutional head or formal
head. The President as well as the Governor exercises his powers and functions
conferred on him by or under the Constitution on the aid and advice of his council of Ministers save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion.
[833C-F]
Sardari La1' s case overruled.
HELD FURTHER : The President or the Governor acts on the aid and advic·e
of the Council of Ministers with the Prime Minister at the head in the case of the
Union and the Chief Minis.ter at the head in the case of State in all matters which
vests in the executive whether those functions are executive or legislative in
character. Neithe'f the President nor the Governor is to exercise the executive
functions persona1ly. The present appeals concern the appointment of persons
bther than District Judges to the Judicial Service of the State which is to be made
by the Governor as contemplated in Article 234 of the constitution after consultation \vith the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons bdonging to the Judicial Service of the
State is not a personal function but is an executive function of the Governor
exercised in accordance with the roles in that behalf under the Constitution.
[836B-D]
HELD FURTHER : No abstract proposition can be laid down that where the
services of probationer are terminated without saying anything more in the order
of termination that it can never amount to a punishment in the facts and cir~
cumstances of the case. _If a probatiOner is discharged on the ground of misconduct or inefficiency or for similar 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 service within the meaning of Article
311(2) of the Constitution. [837 Fl
HELD FURTHER: rn the absence of any rules governing a probationer the au.
thority may come to the conclu<Jion that on account of inadequacy for the job
or for any ternperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged, the same does
not involve any punishment.
The authority may in some cases be of the view that
the conduct of the petitioner may result in dismissal or removal on enquiry but
in those cases the authority may not hold an enquiry and may simply discharg;!
the petitioner with a view to giving him a chance to make good in other walks
of life without a stigma-.
The fact of holding an enquiry is nqt always conclusive. What is decisive is whether the order is really by way of punhhment. If
the facts and circumstances of the case indicate that the substance of the order
is that the termination is by way of punishment then the petitioner is entitled to
attract Article 311.
Where the departmental enquiry is contemplated and if any
enquiry is not in fact proceeded with, Article 311 will not b~ attracted unless it
cnn be shown that the order though unexceptionable in form is made following
'"' report ba5ed on misconduct. [837 G-A; 838 C; F&G]
HELn FuRTHER : Rule? ( 1) of the Punjab Civil Service (Judicial DranCh)
Rules 1951 provides that every Subordinate Judge in the first instance _would be
appointed on probation for 2 years but the said perio~ n1ight be e~ten~·~d fr?m
time to tim'.! expressly or impliedly so that the total penod of proba·tlon 1nc1lud1ng
extension if any does not exceed 3 years. The explanation to rule 7 ( 1) provides
that the probation shall b~ deemed -i._o have been extended if a Subordinate Judge
is not confirmed on the expiry of his probation. Any confir~a.tion by implication is negatived in the present case because before the completion of 3 years the
High Court found Drirna facie that the conduct as well a<;; the work of the appellant
was unsatisfactorv and a notice was given to the appellant to show cause as to why
his services should not be 'terminated. Explanation to rule 7(1) shows that the
period of probation shall be deemed to ha_ve been exte!lded impliedly if a subl)rdinate Judge is no.t confirmed on the expiry of probation.
Therefore~ no conArmation by implication can <1risc in the present case.
[839B; E-G)
816
SUPREME COURT REPORTS
[1975] 1 S.C.R.
HE:lD FURTHER : The High Court for the reasons which are. net stated decided
A
to depute ;:he Director of Vigilance to hold an enquiry. It is indeed Strallge that
the High Court which had control over the judiciary asked the Government to
bold an enquiry through the Vigilance Department.
The members of the subordinate j'udiciary are not only under the control of the High Court but are also
under the care and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to hold
an enquiry through the Director of Vigilance was an act of self abnegation. The
High C.onrt should haNe coriducted \he enquiry preferably through District Judges.
The members of the Subordinate judiciary look up to High Court not only for
B
discipline but also for dignity. The enquiry officer nominated by the Director of
Vigilance recorded the statements of witnesses behind the back of the appellant.
The enquiry was to ascertain the truth of allegations of misconduct. Neither the
report nor the statements recorded by the Enquiry Officer reached the appellant.
The Enquiry Officer gave his findings on allegations of misyonduct. The High
.. Court accepted the report of Enquiry Officer and wrote to the Government that
in the light of the report, the appellant was not a Suitable person to be retained
in service.
[841C-FJ
The order of termination of the services of Ishwar Chand Agarwal is clearly
by way of punishment in the facts and circumstances of the case. The High Court
not only denied Ishwar Chand merely the protection under Article 311 but also
denied itself the dignified control over the subordinate judiciary. The form of the
order is not decisive as to whether the order is by way of punishment. Even an
innocuously worded order. terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave
character of misconduct involving stigma has been made in infraction of the
provisions of Article 311.
Jn such a case the simplicity of the form of the
order will no? give any sanctity.
The order of termination is illegal and must
be set aside. [841 G-H]
In case of Shamsher Singh the orders of termination of the services are s~t
aside.
The appell<)nt Shamsher Singh succeed·s by s·itting asid~ the order cf
termination.
In view of the fa:;t that Shamsher Singh is already cniployed in
the Ministry of Law, no relief accepting salary and other monetary benefits
c
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which accrued to him upto the time he obtained employment in the Ministry
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of La:w is given.
(Per Krishna Iyer J, for hi111srlf and Bhagwati. J. concurring)
(i) The a!·gument about the oath of office: of President to defend the
Constitution is sometimes put forward by anti-ministerialist advocates. The
President defends the Constitution not by denying its spiritual essence
of
Cabinet responsibility-indeed h~ subvert·s it that way-but by accepting as
his Constitutional function \vhat his 'responsible' ministers have decided.
Can
J;'
a Judge, in fulfilment of the oath of his office, ignore all binding precedent's
and decide according to the ad hoc dictates of his. uninforn1ed conscience ?
Tnbhovandas's
ca~e answers the point in the negative. If every functionary
who take~ the oath by ther Constitution interprets it accordng to his lights,
this solemn document would be the source of chaos and collusion and the
first casualty would be the rule of la\v.
Such mischief cannot merit juristic
acceptance.
[856H; 85iA-B]
It is clear fron1 artic"e 74( 1) that it is the function of the. Cbuncil
of
G
Mini·3ters to advise the President over the
whole
of
the
Central
field.
Nothing is left to his discretion or excepted from that field by this article.
By way of contract see ArtiC'le 163 which is the corresponding provision for
Governors and which expressly excepts certain matters in which the Governor
is, by or under the constitution, required to act in his discretion.
There is
no such exception in the case of the President.
[858FG]
However, Article 75(3) makes the Council of Ministers
respon~_:ible to
the House of the People.
If, therefore, the President acted
contrary
to
H
advice, the
ministers
would
either resign or, since the advice tendered
reflected the view of the House of the People, they would be thrown out of
offtce by the House of the People. For the same reason, no one
else
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would th<n be able to form a aovernment The Preoident would, thecefbre,
be compelled to dissolve the House. Aparl! from the technical difficulty of
carrying out the many details of a general election in such a situation the
President- might have to dismiss tho ,M:inistry and instal a 'caretaker' government to CO-Operate with him in ordering a general election--the consequence~
of the election might be mose serious. If the electorate should return the
samo government
to
power, the President
might
bo accused of having
sided with Opposition and thrown the country into the turmoil and expense
of a. general election in a vain attemPt t.o get rid of a Ministry that had
the illpport of Parliament and tho People. This would gravely impair the
pcsition of the President.
[8580-H; 859A-BJ
lf we hold that in a conftict between the Ministry and the President, the
President's
voice
~bould
preva.il
in
the
last
resort.
either
genet·ally or even in a particular class of cases, this would mean the elimination to that extent of tho authority of a Ministry which
is
continuously
subject to control or criticism by the House of tho People in favour of the
au111.ority of a President who is not so 111ubject.
It would thus result in a
rc.1uction of the sphere of 'respon:Sible government'.
So important a subtrac~
tion inust be justified by some express pro\isions in our constitution. [859C-Dl
If the President, in a particular case where his own views differ fron1
tftose of his Ministers, ultimately accepts their advice in defence to a. vtellundmtood convention, then even if the act should result in a breach of
-;ome 'fundamental right' or
'directive principle' enunciated in the
constiti1tion, the responsibility will be that of the ministers
and
not
of
the
President.
[859D-El
The President under the Indian Constitution is not a mere figure: head.
Li~e the King in England he will still have the right to be comulted,
to
.~ncourage and to warn.
Acting on ministerial advice does not necessarily
nem.n immediate acceptance of the Ministry's first thoughts. The
Pre'iident
~;an stato all his objections to any purposed course of action and ask his
Atinisters in Council, if necessary, to reconsider the matter.
It is only
1n
the last resort that he must accept tllcir final advice.
[859F·G}
The Prosident in India is not at a.11 a glorified· cipher. He repreaents the
i'llljC.sty o.f the State, is at the
~pex, !hOugh only
sy~~olicall~, mn'! . ha"
ntpport with the people and parties being
above
politics. His
vigilant
presence makes for good govcnim,ient if only he uses, what Bagehot described
a~, 'the right to be consulted, lQ' warn and encourage.'
Indeed, Article
78 wisely used, keeps the President in close touch with the
Prime Minister
on matters of national importance· and policy. significance, and there; is no
dDubt that the imprint of his personality may chasten and correct the politi~
cal go".emment, although the. actual exercise Of the functions entrusted to
him- by law is in effect and in law carrh~d on by his duly appointed mentors,
i.rl,. the Prime- Minister and his colleagues. In short, the President. like
tte
King, has not merely
been constitutionally romanticised
but actually
vested with a persuasive role.
Political theorists are quite conversarnt with the
dyna~c role of the Croy.-n which \.:eeps away from P<;>litics and power and
yet 1nfluences both. While he plays such a role he lS not a rival centre
of power in any sense and must abide by and act on the advice tendered
br his Ministers except in a narrow territory which is sometimes slippery.
o,: course, there is some qualitative difference between the position of
the
President and the Goverilar. The former, under Art. 74 has no
discre~
tionary powers; the latter too ha.s none, save in the tiny strips covered by
Arts. 163(2), 371A(l)(b) and (d), 371A(2)(b) and (!); VI Schedule par"
9(2) (and VI Schedule para 18(3), until omitted recently with effect from
21-1-1972). These discretionary powen exist only where expressly •pel@ out
and even these are not left to the sweet will of tho
Governor
but are
rcinote~controlled by the Union Minis.try which is an~werable to Parliament
for those actions.
Again. a minimal are.a centerina round
reports
to
bS"
despatehed under Art.
356 may not, i• \m, nature ot thiags, be amenable
to ministerial advice.
[867F·H; 86!A·C]
6-L1921i.opCl/75
SUPREME. COU!tT RJ>PORTB
[1975] 1 S.C.R.
If only we expand the ratio of
Sardarilal
and
Jayantilal
to
every
function which the Article of tho Com.titution confer on the
President
or
fhe Gonvemor, Parliamentary democracy will become a dope and national
elections a numerical exercise in expeDBive futility.
We will be compelled
to hold that there are two parallel authorities exercising powers of governance
of the country, as in the dyarchy days. except that Whitehall is substituted
by RaBbtrapati Bhavan and Raj Bhawan. The cabinet \\rill shtink at Union
and State levels in political and administrative authority and, having solemn
regard to the gamut of his powers and responsibilities, the Head of State
wiU be reincarnation of Her Majesty's Secretary of State for India, untroubl-
.ed by even the British Parliament-a little talJer in power than the American
President.
Such a distortion, by interpretation, it appears to us, would virtually amount to a subversion of the structure, substance and vitality of
our
Republic, particularly when we remember that Governors are but appointed
functionaries and the President himself is. elected
on
a
limited
indirect
ba•io.
[869G-H; 870A-BJ
HEID F°uR11iER :
The President mea~, for all practical purposes, the
Minister
or
the
Council of Ministers as the case may be, and his opinion,
satisfaction
01
decision is constitutionally secured when his Ministers arrive at such opinioll;
satisfaction or decision. The independence of the judiciary,
which
is
a
cardinal principle of the Constitution and has been relied on to justify
tho
deviation, is guarded by the relevant Article making consultation with the
Chief Justice of India obligatory. In all conceivable cases ccmsultation witb
that highei;t dignitary of Indian justice will and should be accepted by the
Government of India and the Court will have an opportunity to
examine.
if any other .eoi:traneous circumstances havo entered into the verdict of the
Minister, if h~ departs from the counsel given by the Chief Justice of India.
In practice the last word in such a sensitive subject must belong to
the
Chief Justiee of lndia, the rejection of his advice being ordinarily regarded
as prompted by oblique considerations vitiatin2 the order. In this view it
is immaterial whether the President or tho Prime .Minister or the Ministet
for Justice formally decided ,the issue. [873A-C]
HEID F°uR11iER :
Nor is Sardarilal of isuch antiquity and moment that a reversal
would
upset the sanctity of stare decisis.
Some rulings, even of the highest Court~
when running against the current of case and the clear stream of Constitu ...
tional thought, may have to fall 'into the same class as restricted
railroad
ticket, good for the day and train only; to adopt the language of
Justice
Roberts (Smith v. Alleright, 321 U.S. 649, 665). [875E-FJ
In short the law of this branch of our constitution is tha! the President
and Governor, Custodians of all executive and other powers under varioll!'
Articles shall, by virtue of these provisions? exercise the.ir formal
constitu~
tional powers only upon and in accordance with the advice of their Ministers
save in a few well-known exceptional situations. Without being dogmatic ru
exhaustive, these situations relate to (a) the choice of Prime Minister (Chief
Minister), - restricted though this choice is by the
paramount
consideration
fhat he should command a majority in the House; (b) the dismissal of Iii
Government which has lost its maiority in the House but refuses to
quit
office; (c) the dissolution of the House where an appeal to the country i!
necessitous, although i~ this area the Head of State should avoid
~ttinc
. involved in politics and must be advised by his
Prime
Minister
( Chiet
Minister) who will eventually take the responsibility for th~ step. We do
not examine in detail the constitutional proprieties
in
these
predicamente.
exceot to utter the caution that even here the action must be compelled by
the peril to democracy and the appeal to the House or to the country must
become blatantly obligatory. [875F-HJ
·
(ii) So far as the appeals are concerned, the effect is that there is no
infirmity in the impugned orders on the score that the Govemor ha.s not hi~lf
pm1.9ed the papers or passed the orders.
[876C-DJ
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SHAM SHER SINGH V. PUNJAB
819
.A.
The orders of terminations are liable to be quashed and set aside on
the facts set out in the judgment of the learned Chief Justice.
Argu111e111s on behalf of the appellant :
Article 234 of the Constitution confers on the Governor the power first
lo frame 1u?es in consultation with the High Court and the
Public Service
Commission and then requires him to appoint persons to judicial service o~
a State in accordance with the Rules so made. The power to appoint includea
the po\vcr to dismiss or terminate according to section 16 of the genera!
B
Clauses Act read with Article 367 of the Constitution.
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The power of the Governor under Article 234 as regulated by the rufe'.3
framed thereunder is not the executive power of the State as contemplated
under Article 154 and under Article 162 of the Constitution and is, therefore,
not exercisable under Article 154 through subordinate officers, which, include~
Ministers but must, on the language, the purpose and the setting of the
Article, be exercised by the Governor as a power exercisable by
himself ..
Even Rule· 7 framed in consultation with the High Court and the Public·
Service Commission of the Punjab Civil Service (Judicial Branch
Rules)
confers the power of termination on the Governor alone and being bound
by those rules he cannot leave .exercise thereof to a subordinate
officer.
Since the impugned order of termination dated 15th December, 1969 wa:!
passed admittedly without even placing the pap,ers before the Governor the
same· is in contravention of and is not authorised by Article 234 and
the
rules framed thereunder.
Under Article 163 of the Constitution the Governor is to act on the aid
~ind advice of his Council of Ministers in the exercise of
his
functions
except in so far as he is by or under the Constitution required to exercise
his functions in his discretion.
The power of termination
conferred
bv
Rule 7 is a power conferred by and under the Constitution and. since Rule 1
requires the Governor in his own discretion to decide whether or not to
terminate the services of a probationer judicial officer the function cauld
be exercised by the Governor even without the aid and advice of his Council
of ,"t\1inisters.
Article 163 (2) further strengthens this submission in as muolt
as it confers on the Governors the power even to decide v:hether a matter
is or is not one in his discretion.
Alternatively and assuming that the function under. Article 234 read wit)\
Rule 7 was not within the Governor's discretion in terms of Article 163,.
the power conferred by Article 234 and said Rule 7 was not
exercisable
through subordinates under Article 154 although it may be exerciiable by
the Governor on the aid and advice of his Council of Ministers since th,
.:iower is not the executive power of the State but a law making cum execu ..
1.ive power of the Governor himself.
Under Article 235 of the Constitution it is the High C.Ourt alone which
is vested with the control over the subordinate judiciary in
all
matters
i'ncluding the initiating and
holding of eiiquiries
against judicial
officers.
Since the dismissal or termination of the appellant's services is based on the
~~uperintendent of Police, Vigilance Department's findings of guilt the order
i ~ in breoch of Article 235 of the Constitution.
The appe!lant having completed his maximum period of three years probation.
a legal right to be confirmed in favour of the appellant. Thereafter he ceased
tiJ be a probationer. Since the appellant had acquired a right to be confirmed
his services could not have been terminated without compliance with tho pro-.
v.:sions of Article 311 of the Constitution.
The impugned order of termination though innocuous in form, is really an.
order by wav of punishment r~moving the appellant from service on the basis·
of charges of gr~ misconrlut found established by an eXwparte enquiry conductedi
bf the S.P. Vigilance Department w.jth the ogiy object of ascertaining the truth:
ol' the alleged misconduct and for the purpose of dismissing or removing the
p<:.iitioner if the. charges were found established. It was ultimately on the basi!
o:: specific findings recorded by S.P. Vigilance th2t the appellant's rervice~ ·were
terminated.
The enquiry was clearly in breach o~ Article 311 o.f the Cori-sti~,
rutio11 as aho in breach of rules of N'atura1 Justice. The enquiry
by
S.P.
\'ie,ilance was cssential1y and in character ~nd object different from the infor
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mal enquiry into the suitabilitY of the appellant held by the two District Judge·3
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(Ferozpttr and Bhatinda) towards the_ end ·of the maximum period of probalion.
The report of the Vigilanoo Department which formed the very basis of the
termination is therefore, based on an entirely uncornmunicated material.
Even the adverse reports referred ID by the Respondent Government were
not made the subject matter of thei show cause notice proposing terrrlination
so .that in terms of Rule 9 the petitioner never bad the opportunity to show
cau.se a,gainst them.
Although the said reports
rela1'.~d to a pre-show cause
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notice period they were not made the subjec? matter of the show cause notice
160 that the impugned order of termination. which, is admittedly based on
lheie adverse reports also is in bre,ach of Rule 9.
The appellant's service have thus been terminated on the basis of grounds
entirely extraneous to the show cause notice and since the appellant was not
apprised of these new grounds and allegations and was not given an opportunity to submit an explanation with regard to the same, the order of termination dated 15th December, 1969 has clearly been made in breach of mandatory
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:Provisions of rule 9 and is li<.!-ble to be quashed.
,4rgun1ents 011
1be1l(l/f of the Respo/ldent
It is a fundamental principle of English Constitutional law that there must
be no conflict between the King and his people, and consequently no conflict
between the Ki!}8 and thei House of Commons which represents the people.
It i·.> this princip1le which is responsible for three settled rules of English Constitutiooal Law : (i) That for every public act of the King, his Ministers must
accept responsibility.; (ii) That the Sovereign must never act on his own resPomibility that is, he must always have advisers who will bear responsibility
for his acts; and (iii) The power of the Sovereign to differ from or dismiss hi3
Ministers is conditioned by the practical rule that the Crown must find advise~
to ~ar ro;_sponsibility for his action and those advisers must have the confidence
of' die house of Cdm.mons.
This rule of English Constitutional Law is incorporated in the Constitution of India.
See Articles 74(1), 75 (3) and 361 (!)
and set;end proviso which clearly point to the conclusion that the Indian Constitution envisages a Parliamentary or "responsible'' form of Government and not
a Presidential form of Government.
The powers of the Governor as constitutienal head are no diierent--See Article 163(1), 164(2) and 361(1) and
secOnd proviso.
·. : The S!JpremC COurt .of India has consistently taken the view that the powers
of the- President and the powers of the Governor under the Indian Constitution
are akin to the powers of the Crown under the British Parliamentary system. See
Ramajawara Kapur v. State of Punjab [1955] 2· SCR at 236-231 ( Mukherjea,
C.I,), A. Sar1j<evi Naidu v. State of Madras [1970] 3 SCR 505 at 511 (Hegde
l,); V, N. Rao v. lndira Gandhi [1971] Supp. SCR p. 46 (Sikri, C.J.). In the
last case this Court h~ld that Article 74( 1) was mandatory and therefore the
Preii.dent could not e~ercise the executive power without the aid and advice of
Cou.ncil of Ministers; but th<! principle of the de~ision is not restrictCd to the
exercise of executive power alone. A similar view with regard to the powers
of the President and the Governor under our Constitution is expressed by
Corutitutiona\ lawyers.
(See, for instance, Jennings Constitutional Laws of the
Corn111onwca/1'1 1952 p. 365 where the author characteri~es the description rif the
Indian Constitution as a Sovereign Democratic Republic as "wholiy accurate"
but that "it might ailso be described as a constitutional monarchy without a
monarch".
The Governor is at the apex of the Executive and the executive power of the
St'ate is vested in the Governor [Article 154(1)]. The Go'\"Cmor is also at the
ape·x of the State Legislature (Article 169).
rn both these capacities the Governor has several functions to perform. The
word 'functions' includes powers and duties-The nature of these functions and
the ·Capacity in which he examine~ them is set Out in the E.xplanatory Note appended to this written argument.
Tho pCJWer to terminate the engagement of a member of a. State Public
SOryice CO!Dmission-i;:uch as a SQb~Judge-is part of the exe~nUive power of
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821
the State.
(Art. 162 1ead 11t'th Entry 41 vf LiH //). lt can be allocated to
a Minister under Art. 166(3 ).
Tt can be exercised by subordinate official" if
this is in accordance with the rules of allocation.
In any case the executive power of the State extends to, but is not limited to,
matters in respect of which legislature has power to make laws. Neither the appointment nor the termination of the services of a District Judge (Article 233)
nor the appointment or termination of service of a men1ber of the Subordinate
Judicial Service (Article 234) is a matter with respect to which the Governor is
required to act in his discretion. The argument (on behalf of the Interveners)
that the "Governor" in Articles 233 and 234 mean the Governor personally and
not acting through any other agency is contrary to the plain language of articles
154(1), 162(1) and 166. It is also contrary to the concept ';responsible" Government.
That the actions of •·responsible" Ministers should be scn1tinised by a
nominated Governor, \Vho is responsible to no one, is a strange argument: the
confidence in the personal opinion of a nominated individual may or may not be
justified; but it is not warranted in a Parliamentary system of democracy. There
is nothin2 in the form of the oath taken by the Governor to militate a£ain.~t the
State's submissions. If the Governor is true to his oath he c;mnot ignore or refu<>e
to follow a rule of constitutional Law-which is that he mll'st act as a constitutional head of a State having a Council of Ministers responsible to ihe State
Legihlature.
In fa·ct such a contention runs counter to the 1heory of Cabinet
respon.sibility on which our Constitution is based.
The argument founded on article 167 does not advance the case of the petitioners. The Governor has no ri.aht to refuse to act on the advice of the Council
of Ministers. Such a position is antithetical to the concept of "respomibte" Gov·
ernment.
Article 167 \Vas inserted for the limited purpose of enabling him to
obtain inforn1ution so that he could discharge the constitutional functiom of a
Governor. It was not intended to give the Governor power to interfere ift: the
administration and as such a result does not ft.ow from the langu<tge used
in
article 167.
A person appointed to a permanent· post in Government service on probation
ha."! no right to continue to hold that !l(lst any more than a servant employed on
probation by a private employer is entitled to do. Termination of the service of
the probationer during or at the end of the period or probation will not ordin.arily
and by itself be a punishment attracting the provisions of article 311. If termlnation of service of a probationer is founded on a right flowing from the con.tract
or the service rules, then prilna facie it is not a punishment and article 311 HI aot
attracted. T'he test is : Is termination sought to be brought about otherwise than
hy w;::.v of punishment? If yes, artide 311 will not apply. This is ordinarily
~o be "as·-.:ertained by reference to the order terminating the '5Crvice.
Though termination of the service of a probationer during or at the ead of
the period of probation will not ordinarily and by itself be a punishmcnt-fhe
circumstances attending the termination would be relevant to determine wketh.~r
or not the termination was by \Vay of punishment. An important circumstance
would be the fact that disciolinary action was contemplated and taken.
The
form of the order is not by itself conclusive.
An c.rder of termination of service in unexceptionable form preceded by an
inquiry launched by the superior authority-whether under specific rules or otherwise for the purpose of ascertaining whether the public servant should be retained in service does not attract the orieration of article 311.
Even where a departmental inquiry is initiated and a charge sheet submitted
followed by an explanation from the probationer the provisions of article 311
would not be attracted if the inquiry was not proceeded with and there was a termination of service sifnpliciter.
But where the inquiry is held under rules giving the public servant on probation an opportunity of showing cause why the probationer's appointment i;ihoukt
not be terminated and such a show cause notice is given and an inquiry held
undt>r the relevant ru1e_ the order of di!'chan?e of the probationer if unexceptionable in form, \vill not amount to "dismissal".
In the present car;;e Rule 9 was invoked and was apnlied.
The confidential
reports themselves disclose an unsatisfactory/record implying unsuitability for
822
SUPREME COURT REPORT
(1975] 1 S.C.R.
further service. This itself is sufficient to dispose of the petitioner's contentions
on merits. The confidential reports were available with the Government as they
\Vere forwarded by the High Court. The explanation of the petitioner was con-
, sidered by the High Court both prior to the issue of a show cause notice by the
Chief Secretary and after. and the explanation of the petitioners was also considered by the Hig~ Court. The record does not show that the view of the High
Court was in any way perverse.
On the contrary, it is clearly warranted by the
facts on record.
The contention that the show cause notice should have b~en
under the soecific directions of the Chief Minister is not warranted either by the
Allocation Rules of 1966 nor is it justified on a true construction of Rule 9 of
the Punjab Civil Service (Punishment and Appeal) Rules, 1952.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2289 of 1970
and 632 of 1971.
From the Judgment and Order dated 28-4-70 of the appeal by
Special Leave from the Judgment and order dated 8-10-70 of
the
Punjab & Haryana High Court iu Civil Regular First Appeal No.
446/69 and L.P.A. No. 656 of 1970 respectively.
Appellant appeared in person (In CA No. 2289170).
G. L. Sanghi, S. P. Agarwala, A. T. M. Sampath, A. K. Sanghi
and E. C. Agarwala; for the Appellant (In C.A. No. 632/71).
F.S. Nariman, Addi. Sol. Gen. of India, H. R. Khanna and 0. P.
Sharma; for Respondent No. 1 (In CA. No. 2289/70).
V. M. Tarkunde, S. K. Mehta and O. P. Sharma for the Respondent (Jn CA. 632/71).
Niren De, Alt. Gen., P. P. Rao and S. P. Nayar; for the Attorney
General of India.
·
B. R. L. Iyengar and Bishamber Lal for the Intervener (Mr. B. L.
Gupta).
Anand Swarup, A. K. Sen and Harbans Singh Marwaha for Intervener (Punjab & Haryana).
The Judgment of A. N. Ray, C.J., D. G. Palehr, K. K. Mathew,
Y. V. Chandrachud and A. Alagiri<watni, JJ. was clelivered by Ray,
C.J., V. H. Krishna Iyer, J. gave a separate Opinion on behalf
of
P. N. Bhagwati J. and himself.
RAY C. J. These two appeals are from the judgment of the Punjab
.and Haryana High Court.
The Appellants joined the Punjab Civil Service (Judicial Branch).
They were both on probation.
By an order dated 27th April, 1967 the services of the appellant
Shamsher Singh were terminated.
The order was as follows :
"The Governor of Punjab is pleased to terminate the scrviceJ
of Shri Shamsher Singh, Suhordinate Judge, on prohation,
under Rule 9 of the Punjab Civil Services (Punishment ar;d
Appeal) Rules, 1952 with immedfate effect. It is requested
that these orders may be conveyed to the officer concerned
under intimation to the Government."
By an order dated 15 December, 1969 the services of the ~ppel
lant Ishwar Chand Aggarwal were terminated. The order was as follows:-
"On the recommendation of the High Court of Punjab and
Haryana, the Governor of Pun.jab is pleased to dispense with
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the services of Shri Ishwar Chand Agarwal, P.C.S. (Judicial
Branch), ~ith immediate effect, under Rule 7 (3) in Part 'D'
of the Punjab Civil Services (Judicial Branch) Rules, 1951
as amended from time to time".
'
The appellants contend that the Governor as the Constitutional
or t~e formal head of the State can exercise powers and functions of
appomtment and removal of members of the Subordinate Judicial Service only personally. The State contends that the Governor exercises
powers of appointment and removal conferred on him by or under the
Constitutio~ like e~ecute ~wers o.f ~he State Government only on the
aid and advJCe of his Council of M1m.sters and not personally .
The appellants rely on the decision of this Court in Sardari Lal
v. l!niun of India & Ors. (1971)3 S.C.R. -1-61 where it has been
he!? .that where the President or ~
Governor, as the case may be, if
sa!Jsfied, makes an order under Article 311 (2) proviso(c) that in the
.