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D.K. Rai Vs. Excise Commissioner and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 643 of 1964
Judge
Reported inAIR1966MP333; [1966(12)FLR306]; (1967)ILLJ97MP
ActsConstitution of India - Article 311(2); Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1930 - Rule 55B; Madhya Pradesh Civil Services (General Conditions of Service Rules, 1961 - Rule 8(2); Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1965 - rule 9
AppellantD.K. Rai
RespondentExcise Commissioner and anr.
Appellant AdvocateR.N. Rai, Adv.
Respondent AdvocateR.J. Bhave, Govt. Adv.
DispositionPetition allowed
Cases ReferredJagdish Mitter v. Union of India
Excerpt:
.....reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged. that the -new rules did not contain any provision corresponding to rule 55-b of the rules of 1930; and that consequently though the order terminating the petitioner's services might have been passed without complying with rules 55 and 55-b of the old rules and thus illegal, it was now a good and valid order......him that it was proposed to institute disciplinary proceedings against him under rule 55 of the civil services (classification, control and appeal) rules, and asking him to submit his statement in writing in defence. it was enquired of him whether he desired to be heard in person and wanted an oral enquiry to be held. by the memorandum the applicant was also asked to furnish the names and addresses of witnesses, if any, whom he wished to call in support of his defence; to furnish a list of documents on which he intended to rely; and to furnish a list of records which he wished to inspect. in reply, the petitioner wrote back to the district excise officer denying the charge levelled against him, and expressing his desire for the holding of an enquiry and for inspection of all.....
Judgment:

Dixit, C.J.

1. By this application under article 226 of the Constitution, the petitioner seeks a writ of certiorari for quashing an order passed by the respondent No. 1, the Excise Commissioner, on 24th February 1964 terminating the applicant's services on the expiry of one calendar month from the date of the receipt of the notice on that behalf.

2. The applicant was selected for the post of Excise Sub-Inspector on 1st June 1948 and appointed on probation. No order was passed by the respondent even till 24th February 1964 confirming the applicant. On 28th November 1963 the Excise Commissioner issued a notice to the applicant asking him to show cause why he should not be punished suitably inasmuch as on 17th June 1962, while posted at Beohari, he had demanded and accepted an illegal gratification of Rs. 100/- from one Shivratan Gour of Dhodar village. A departmental enquiry was then started on this charge by the Collector, Shahdol, who sent a memorandum to the petitioner on 31st December 1963 informing him that it was proposed to institute disciplinary proceedings against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, and asking him to submit his statement in writing in defence. It was enquired of him whether he desired to be heard in person and wanted an oral enquiry to be held. By the memorandum the applicant was also asked to furnish the names and addresses of witnesses, if any, whom he wished to call in support of his defence; to furnish a list of documents on which he intended to rely; and to furnish a list of records which he wished to inspect. In reply, the petitioner wrote back to the District Excise Officer denying the charge levelled against him, and expressing his desire for the holding of an enquiry and for inspection of all documents, records, papers etc. on which the charge against him was based. The impugned order terminating the petitioner's services was passed while this enquiry was pending. It seems that on the date of the order under challenge the petitioner had not even submitted his full explanation to the charge levelled against him, and the recording of evidence had also not begun. That enquiry was not proceeded with when the petitioner's services were terminated by the order dated the 24th February 1964.

3. The applicant's contention is that on the completion of three years' probationary period he automatically became a permanent civil servant and was, therefore, entitled to the protection of Article 311 of the Constitution; and that as the order terminating his services was passed without complying with the provisions of Article 311(2) of the Constitution, it was illegal. It was also urged on his behalf that in any case he had the status of a quasi-permanent employee and was, therefore, entitled to the protection of Article 311; and further if he was a probationer, he was governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, and thereunder his services could not be terminated without following the procedure laid down in Rule 55. The petitioner's contention that on the expiry of his probationary period he automatically acquired the status of a permanent member of the service and, therefore, he was entitled to the benefit of Article 311(2) of the Constitution, cannot be accepted. It is not disputed that the respondents did not at any lime pass any order confirming the applicant. The rules under which the petitioner was appointed as a probationary Excise Sub-Inspector nowhere provide that a probationer at the end of the probationary period would be deemed to have been confirmed.

It has been held by the Supreme Court in Sukhbans Singh v. State of Punjab AIR 1962 SC 1711 that a probationary cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service, unless of course the rules under which, he is appointed expressly provide for such a result and if there is no such rule, then an officer placed on probation cannot be deemed to be confirmed unless and until an express order of confirmation is passed. The applicant says that as in the provisional combined gradation list of the Excise Department, which was published on 30th November 1961, his name was shown in the category of permanent Sub-Inspectors, he must he regarded as having been confirmed in his appointment. There is no substance in this contention. It is true that he was shown in the provisional combined gradation list in the category of permanent sub-inspectors. But that list expressly described the applicant as 'Excise Sub-Inspector Probationary'. In the circumstances stated above, it cannot be held that the applicant was a permanent member of the service on the date when his services were terminated. Equally untenable is the contention of the applicant that he had acquired the status of a quasi-permanent servant. The quasi-permanent status is a creature of the Madhya Pradesh Government Servants (Temporary and Quasi-permanent Service) Rules, 1960. Under rule 3 of the said rules there must be a declaration conferring quasi-permanent status on the civil servant concerned. In the present case, no such declaration was ever made in regard to the petitioner. The applicant was, therefore, clearly a probationer on the date when his services were terminated.

4. Now, it is well settled that where the services of a Government servant, who is on probation, are terminated in accordance with the rules and not by way of punishment, then such termination does not amount to dismissal or removal within the meaning of Article 311(2) of the Constitution. A probationer has no right to the post held by him and under the terms of his appointment he is liable to be discharged any time during the period of his probation subject to the rules governing such cases (See State of Orissa v. Ram Narayan Das 1961-'1 SCR 606: (AIR 1961 SC 177) and Ranendra Chandra v. Union of India 1904-2 SCR 135 : (AIR 1963 SC 1552). Here the applicant's services were not terminated by way of punishment. An enquiry was no doubt started against him. But while it was pending, the respondents thought it expedient to terminate the applicant's services in terms of his employment. The termination of the applicant's services was not thus as result of any findings recorded against him in the enquiry. That being so, the order terminating the applicant's services cannot be treated as one imposing any punishment on him. It may be that in terminating the applicant's, services the respondents took the view that the integrity of the applicant was doubtful, and he was not a person who should be continued in service. But the opinion entertained by the respondents about the suitability of the petitioner in service was at the most a motive operating in their mind in terminating his services. That cannot alter the character of the termination and make the order of termination an order of punishment. This is clear from the decision of the Supreme Court in the case of Jagdish Mitter v. Union of India AIR 1964 SC 449. The following observations made by the Supreme Court in that case are very pertinent here :

' Take a case where the authority initiates a formal departmental enquiry against a temporary servant, but whilst the enquiry is pending, it takes the view that it may not be necessary or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him. In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. On the authority of the decision of this Court in the case of Parshottam Lal Dhingra 1958 SCR 828 : AIR 1958 SC 36 it must be held that the termination of services of the temporary servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct. '

The above observations make it abundantly clear that the impugned order terminating the applicant's services cannot be regarded as an order passed by way of punishment merely because an enquiry on the charge of having accepted illegal gratification had been initiated against him and was pending when order of his discharge from service simpliciter was passed. The applicant's contention that the impugned order was illegal as it was passed in violation of Article 311(2) of the Constitution must, therefore, fail.

5. The petitioner is on a firm ground in. his submission that as a probationer he was entitled to the protection of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules and that as his services had been terminated without complying with that rule, he: was entitled to reinstatement. Rule 55-B, which was in force when action was taken against the applicant, is in the following terms :

'55-B. Where it is proposed to terminatethe services of a probationer, whether duringor at the end of the period of probation, forsome specific fault or on the ground of unsatisfactory work, the procedure laid down in Rule 55 shall be followed. ',

Rule 55 is as follows :

'55. Without prejudice to the provisions of the Public Servants Inquiries Act, 1850 no order of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts which have led to his conviction in a criminal Court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.

This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.'

The Civil Services (Classification, Control and Appeal) Rules being statutory rules, the applic- ant's services as a probationer could only be terminated in accordance with Rule 55-B, which was in force when the order of termination was passed. This is clear from the decisions of the Supreme Court in 1961-1 SCR 606 : (AIR 1961 SC 177) (supra) and 1964-2-SCR 135: (AIR 1963 SC 1552) (supra). In the present case, admittedly the procedure laid down in Rule 55 was not followed before the making of the order by the respondent No. 1 terminating the applicant's services. The respondent No. 1 thought that the petitioner's services could be terminated under the Note to rule 8 (2) of the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961, by just giving him one month's notice in that behalf. He was obviously wrong in so thinking. The Note to rule 8 (2) does not exclude the applicability of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules. The two rules have to be read together, and the effect of combined reading is that an order terminating the services of a probationer can be passed only after holding an enquiry contemplated by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, and when an order of termination is thus passed, the probationer must be given one month's notice before his services are actually terminated.

6. Learned Government Advocate drew our attention to the Madhya Pradesh Civil Services Classification, Control and Appeal) Rules, 1965, which were published in the Gazette dated the 20th August 1965 and which came into force from that date. It was said that Rule 29 of these Rules, while repealing inter alia the old Civil Services (Classification, Control and Appeal) Rules, 1930, which contained Rule 55-B, provided that any order made or action taken under the rules repealed thereby shall be deemed to have been made or taken under the corresponding provision of the new Rules; that the -New Rules did not contain any provision corresponding to Rule 55-B of the Rules of 1930; and that consequently though the order terminating the petitioner's services might have been passed without complying with rules 55 and 55-B of the old Rules and thus illegal, it was now a good and valid order. We are unable to accede to this contention.

What Rule 29 of the new rules does is to repeal ' any rules corresponding to the new rules ' which were in force in the various regions of the State of Madhya Pradesh, and also to provide that any order made or action taken under the repealed rules shall be deemed to have been made or taken 'under the corresponding provisions' of the new rules. Now in the new rules, there is no rule corresponding to Rule 55-B of the rules of 1930. It is true that Clause (viii) (a) of Explanation to Rule 9 of the new rules says that the termination of the services of a Government servant appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment or the rules and orders governing probation, shall not amount to a (penalty. But this rule is not identical with Rule 55-B of the rules of 1930, and its purpose is not the same as one behind that rule. It is one thing to say that the discharge of a probationer, whether during or at the end of the period of probation, for some specific fault or on account of his unsatisfactory work shall amount to penalty with the consequence of attracting Article 311(2) of the Constitution, and quite different to say that where it is intended to terminate the services of a probationer for some specific fault or on the ground of unsatisfactory work, then the procedure laid down in Rule 55 of apprising the probationer of the grounds of the proposal to terminate his services and giving him an opportunity of showing cause and hearing shall be followed. The aforesaid clause of Explanation to Rule 9 of the new rules cannot, therefore, be regarded as a provision corresponding to Rule 55-B of the old rules.

There being no provision in the new rules corresponding to Rule 55-B, the order passed under the old rules terminating the petitioner's services cannot be deemed to be one made under the rules of 1965 and cannot, therefore, be treated as a valid order of the petitioner's discharge under those rules.

7. In our opinion, the order dated the 24th February 1964 of the Excise Commissioner terminating the petitioner's services not having been passed in compliance with rules 55 and 55-B of the Civil Services (Classification, Control and Appeal) Rules, 1930, is illegal and the applicant must Still be regarded as continuing in service as a probationer.

8. For the above reasons, this petition is allowed, and the order dated the 24th February 1964 of the respondent No. 1, the Excise Commissioner, is quashed. The petitioner is declared to be continuing in service as a probationer and the respondents are restrained from giving effeet to the order dated the 24th February 1964. The petitioner shall have costs of this application. Counsel's fee is fixed at Rs. 100. The outstanding amount of security deposit shall be refunded to the petitioner.


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