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Bishan Lal Gupta Vs. the State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 266 of 1970
Judge
Reported inAIR1977P& H7
ActsConstitution of India - Articles 166(3), 310, 311 and 311(2); Haryana Civil Services (Judicial Branch) Rules, 1951 - Rule 7(2); Punjab Civil Services (Punishment and Appeal) Rules, 1952 - Rule 9
AppellantBishan Lal Gupta
RespondentThe State of Haryana and ors.
Appellant Advocate M.R. Agnihotri, Adv.
Respondent Advocate C.D. Dewan, Addl. A.G. (H.),; S.P. Jain and; R.S. Bindra
DispositionAppeal dismissed
Cases ReferredPhagwara v. State of Punjab
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....m.r. sharma, j. 1. in exercise of the powers under article 234 of the constitution of india, the governor of har-yana was pleased to appoint the appellant shri bishan lal gupta to the har-yana civil service (judicial branch) with effect from december 8, 1966. while he was on probation, his services were terminated by an order passed under sub-rule (2) of rule 7 appearing in part 'd' of the haryana civil services (judicial branch) rules, 1951, issued in the name of the governor of haryana on september 11, 1969. 2. the appellant challenged the termination of his services in a suit filed before the learned subordinate judge, 1st class chandigarh, which was dismissed on august 26, 1970. he filed an appeal in this court which came up before me while sitting in chambers. 3. it was argued that.....
Judgment:

M.R. Sharma, J.

1. In exercise of the powers under Article 234 of the Constitution of India, the Governor of Har-yana was pleased to appoint the appellant Shri Bishan Lal Gupta to the Har-yana Civil Service (Judicial Branch) with effect from December 8, 1966. While he was on probation, his services were terminated by an order passed under Sub-rule (2) of Rule 7 appearing in Part 'D' of the Haryana Civil Services (Judicial Branch) Rules, 1951, issued in the name of the Governor of Haryana on September 11, 1969.

2. The appellant challenged the termination of his services in a suit filed before the learned Subordinate Judge, 1st Class Chandigarh, which was dismissed on August 26, 1970. He filed an appeal in this Court which came up before me while sitting in Chambers.

3. It was argued that the impugned action had been taken against the appellant on the basis of allegations of misconduct which cast an indelible stigma against his character and the order terminating his services, though innocuously worded, was hit by Article 311 of the Constitution of India. It was also submitted that the impugned order could not be deemed to have been passed by the competent authority inasmuch as there was no conclusive evidence on the record to show that the Chief Minister of Haryana had passed the relevant order on the official file. Since the questions involved were of importance and likely to arise in a large number of cases. I requested my Lord the Chief Justice to constitute a larger Bench and this is how this case has come up before us for decision.

4. In the plaint presented by the appellant before the learned Subordinate Judge First Class, a large number of points were taken. It was stated that the impugned action had been taken against him because-

(1) the plaintiff failed to make the payment of stitching charges to one Mani Ram tailor of Hissar while posted at His-sar;

(2) the plaintiff put unnecessary pressure on the Station House Officer, Police Station Yamuna Nagar, while posted at Jagadhri;

(3) the plaintiff convicted Basau Ram and Dal Singh and acquitted opposite party in cross-case by accepting illegal gratification from the opponents of Basau Ram etc., and

(4) the complaints were lodged by Sarvashri Sri Ram Handa, K. Lal, Brij Lal and Ram Niwas against the plaintiff alleging acts of criminal misconduct.

5. The High Court directed Shri J. P. Gupta, the then District and Sessions Judge, Hissar, to go into these allegations which, after an enquiry, were found to be baseless. The matter was once again referred to Shri Sarup Chand Goyal, District and Sessions Judge, Hissar, who reported against the appellant. It is urged that once the appellant had been exonerated by Shri J. P. Gupta, no other enquiry could have been entrusted to Shri Sarup Chand Goyal. It was specifically pleaded that since allegations of misconduct had been levelled against the appellant his services could not have been terminated without a full-fledged enquiry. The other ground taken in the plaint which deserves a special mention is that the proposal regarding the taking of action against the appellant had not been sanctioned by the Chief Minister inasmuch as he had not put his signatures on the relevant file.

6. In the written statement the allegations made in the plaint were denied and it was stated that the services of the appellant had been terminated because the High Court considered the work and conduct of the appellant to be unsatisfactory. He was given a proper opportunity of explaining his case vis-a-vis the allegations made against him, and the explanation given by him did not find favour with the Hon'ble Judges. It was also pleaded that a full-fledged enquiry was not necessary because the appellant was a mere probationer at the time when his services were terminated.

7. The learned trial Judge framed as many as a issues in the case out of which issues Nos. 4 and 5 only are material. They read as under:--

(4) Whether the show cause notice dated 22-10-1968 and 18-6-1969 issued under the signatures of the Chief Secretary are void, illegal, unconstitutional and inoperative as alleged and ultra viresof the provisions of Articles 234 and 235 of the Constitution and Haryana Civil Service (Judicial Branch) Rules, 1951, as not having been issued by competent authority and not on the valid recommendations of the High Court

(5) Whether the order of termination is passed on allegations of criminal misconduct attaching stigma and assailing the character and integrity of the plaintiff as alleged in para. No. 6 of the plaint is in violation of Article 311(2) of the Constitution

8. Issue No. 1 was partly decided in favour of the appellant, issue No. 3 was decided in favour of the appellant, issues Nos. 7 and 8 were not pressed and all other issues were decided against the appellant and his suit was dismissed by the learned trial Judge. On issue No. 4 it was held that show cause notices dated October 22, 1968 and June 18, 1969, had been issued under the authority of Chief Minister of Haryana and on issue No. 5, it was held that the order of termination of the services of the appellant was not hit by Article 311(2) of the Constitution.

9. Notice dated October 22, 1968, Exhibit P-2 served On the appellant was later on withdrawn. On June 18, 1969, another notice Exhibit P-4 containing some allegations of misconduct and also stating that the appellant enjoyed a very bad reputation was served upon him under the signatures of the Chief Secretary to the Government, Haryana. The reply Exhibit P-5 submitted by the appellant on July 4, 1969, was considered by the High Court and after getting the facts verified by the District and Sessions Judge, Hissar and Ambala, it was recommended that the services of the appellant be terminated.

10. A copy of the order Exhibit D-2 passed by the Chief Minister, Haryana, on October 16, 1968, was placed on record by the defendants. It shows that the Deputy Secretary, Political and Services, put up a note that the proposal of the High Court regarding the service of a show cause notice on the appellant under Rule 7 (2), Part 'D' of the Haryana Civil Services (Judicial Branch) Rules 1951, read with Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, be accepted. The Chief Secretary to Government, Haryana, forwarded this note for approval to the Chief Minister. This note was returnedfrom the Chief Minister's office with the following remarks:--

'Chief Minister has approved.

Sd/-

S. K. Misra

16-10-68

Principal Secretary to the

Chief Minister.'

11. The final order of termination of the appellant's services dated September 11, 1969, Exhibit D-12, was also approved by the Chief Minister of Haryana in the same manner. This order reads thus-

'In exercise of the powers conferred by sub-rule (2) of Rule 7 in Part 'D' of the Haryana Civil Services (Judicial Branch) Rules, 1951, the Governor of Haryana is pleased on the recommendations of the High Court of Punjab and Haryana, to terminate with immediate effect the services of Shri B. L. Gupta, H. C. S. (Judicial Branch) appointed on probation.

Sd/- Saroop Krishan,

Chief Secretary.'

12. It has to be admitted that some of the allegations levelled against the appellant did relate to his integrity as a Judicial Officer and the proposal for initiating action against him and the proposal for terminating his services was in fact orally assented to by the Chief Minister of Haryana. In these circumstances, it has to be determined whether there is any legal merit in the pleas raised on behalf of the appellant or not.

13. There is no manner of doubt that the appellant has been a member of the Haryana Civil Service (Judicial Branch) and held a civil post under the State. Article 310 of the Constitution provides that a member of the civil service holds his office during the pleasure of the Governor. The security of tenure is provided to such a person under Article 311 of the Constitution. In Suraj Mal v. State of Haryana, (1973) 75 Pun LR 902, I had an occasion to consider this matter and held as under:--

'Article 309 of the Constitution provides that subject to the other provisions of the Constitution, the appropriate Legislature may make a law regulating the recruitment and conditions of service of the persons appointed to public service. Until such law is made by the Legislature, the Governor of the State is empowered to make rules in this behalf. The law made by the Legislature on this subject and the rules made by the Governor cannot override the other provisions of the Constitution. In other words, the fundamental rights guaranteed to the public servants as citizens of this country cannot be whittled down or taken away by the rules relating to their conditions of service, though under these rules the master can place fetters on his own pleasure and also bind the public servants. The residue of rights flowing out of the doctrine of pleasure continues to vest in the Government.'

The case of the appellant is governed by the Haryana Civil Services (Judicial Branch) Rules. 1951, Rule 7 (2) appearing in Part D of these Rules reads as under:--

'7 (2) The Governor of Haryana may, on the recommendation of the High Court, remove from service, without assigning any cause, any Subordinate Judge, or revert him to his substantive post, if any, during the period of probation.'

The procedure for taking action is given in Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, which reads as under:--

'9. Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of the unsatisfactory record or unfavourable reports implying the un-suitability for the service, the probationer shall be apprised of the grounds of such proposal, and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the appointment.'

14. The final order terminating the services of the appellant quoted above does not contain any offensive matter and has been passed in accordance with the letter and spirit of the above mentioned rule. It has, however, been argued that the form of the order is not material and the Court which is seized of the matter is entitled to look into the circumstances under which such an order has been passed. In support of this proposition, reliance has been placed on State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089, and State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011. The precise argument of the learned counsel for the appellant is that since the allegations of corruption levelled against the appellant had been sent to the two Dis-trict Judges for enquiry who had held those allegations to be well founded andthe findings recorded by them had been accepted by the High Court, It should be held that the action taken against the appellant visited him with penal consequences. He submits that this Court should tear the veil of the form of the order and reach the core of it for determining the manner in which the mind of the disciplinary authority had been working.

15. The learned counsel for the respondents, however, submitted that the tenure held by a probationer is tenuous in nature and he has no right to occupy the post. If a service rule provides that allegations on which this tenure Is sought to be terminated should be brought to the notice of the probationer, the master in order to be fair has to hold some sort of a preliminary enquiry Into the matter for ascertaining whether them was some substance in the allegations or not and that they were really worthy of being confronted to the probationer or not. By acting under such a service rule the master dees not evince an intention to punish the probationer and brings to light the allegation for the limited purpose of determining whether the probationer should be continued in service or not. The intention to punish can be imputed to the master only when he conveys these allegations in the form of a charge for holding a formal enquiry, for, when an act constituting misconduct on the part of a probationer is brought to the notice of the master, it is open to the latter either to punish him by holding a formal enquiry or to terminate his services after giving a due consideration to the explanation tendered by the probationer against the allegations levelled against him when the explanation is called for, for the limited purpose of determining whether the probationer should continue in service or not, no intention of inflicting a punishment can be imputed to the master.

16. The classic case on the point is Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36. Speaking for the Court, S.R. Das, C. J., observed--

'In short, if the termination of service Ts founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reductionin rank, the Government may, nevertheless, choose punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.'

17. A probationer in contradistinction with a confirmed Government servant has no right to hold his post and the termination of his service per se does not visit him with any evil consequences.

18. Parshotam Lal Dhingra's case (AIR 1958 SC 36) (supra) was followed with approval in State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, relating to the case of a probationer. It was held--

'Where under the rules governing a public servant holding a post on probations an order terminating the probation is to be preceded by a notice to show cause why his service should not be terminated, and a notice is issued asking the public servant to show cause whether probation should be continued or the officer should be discharged from service the order discharging him cannot be said to amount to dismissal involving punishment. Undoubtedly, the Government may hold a formal enquiry against a probationer on charges of misconduct with a view to dismiss him from service, and if an order terminating his employment is made in such an enquiry, without giving him reasonable opportunity to show cause against the action proposed to be taken against him within the meaning of Article 311(2) of the Constitution, the order would undoubtedly be invalid.'

19. Their Lordships made a clear distinction between the two types of enquiry -- one for determining whether the service of the probationer should be continued or not, and the other for inflicting a punishment on him. This case was followed with approval in Ranendra Chandra v. Union of India, AIR 1963 SC 1552.

20. In Hanendra Chandra's case (AIR 1963 SC 1552) (supra) it was held:--

'Further it is equally well settled that a government servant who is on probation can be discharged and such discharge would not amount to dismissal or removal within the meaning of Article 311(2) and would not attract the protection of that Article where the services of a probationer are terminated in accordance with the rules and not by way of punishment. A probationer has no rightto the post held by him and under the terms of his appointment he is liable to be discharged at any time during the period of his probation subject to the rules governing such cases; (see State of Orissa v. Ram Narain Das, (1961) 1 SCR 606 = (AIR 1961 SC 177)). The appellant in the present case was undoubtedly a probationer. There is also no doubt that the termination of his service was not by way of punishment and cannot therefore amount to dismissal or removal within the meaning of Article 311. As a probationer he would be liable to be discharged during the period of probation subject to the rules in force in that connection. The High Court therefore was right in holding that the appellant was not entitled to the protection of Article 311(2) of the Constitution.'

21. In State of Uttar Pradesh v. Akbar Ali Khan, AIR 1966 SC 1842, the Court was concerned with the case of a probationer who had submitted travelling-allowance bills in respect of journeys not undertaken by him. His promotion on probation was terminated after an enquiry. The Court held--

'We are unable to agree with the High Court that the first limb of the order dated August 13, 1957, was punitive in character. The inquiry against the respondent was held for the purpose of determining his probation. Under Rule 14 of the Subordinate Revenue Executive Service (Tahsildar) Rules, 1944, the Governor is authorised to revert a person appointed on probation, if it appears at any time that the person has not made sufficient use of his opportunities or has failed to pass the departmental examination completely or has otherwise failed to give satisfaction. An officer who has submitted travelling allowance bills in respect of journeys not undertaken by him may not unreasonably be regarded as one who 'has failed to give satisfaction'. It cannot be assumed merely because an inquiry is directed to ascertain whether a person appointed on probation has failed to give satisfaction that it is intended to hold an inquiry with a view to impose punishment against that person. Inquiry against the respondent which was commenced for ascertaining whether he should be continued on probation or whether his probation should be terminated, did not change its character merely because the Governor made an order which he could not make in that inquiry.'

22. The next case on the point is State of Punjab v. Sukh Raj Bahadur,AIR 1968 SC 1089, reliance upon which has also been placed on behalf of the appellant. After considering a large number of cases, the Court drew the following conclusions:--

'(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

(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 consequences 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 service, does not attract the operation of Article 311 of the Constitution.

(5) If there be a full-scale departmental enquiry envisaged by Article 311, i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article.'

23. The learned counsel for the appellant relies upon conclusion No. (3) drawn above but a careful reading of the Judgment shows that this conclusion was drawn on the basis of Jagdish Mitter v. Union of India, AIR 1964 SC 449, in which the order of discharge read as follows:--

'Shri Jagdish Mitter, a temporary Second Division clerk of the office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949.'

24. The order passed itself indicated that Jagdish Mitter was undesirable to be retained in Government service. It is a matter of common knowledge that whenever a discharged Government servant secks fresh employment, his new master always wants to have a look at the order of discharge. Any master who reads the order of discharge passed in Jagdish Milter's case (AIR 1964 SC 449) would think twice before offering himfresh employment because the order casts a stigma against the character of Jagdish Mitter inasmuch as it dubbed him to be 'undesirable to be retained in Government service'. Conclusion No. (3) quoted above cannot, therefore, be pressed into service by a probationer whose services have been terminated by an innocuously worded order. Such a case would indeed be covered by conclusion No. (4) drawn by their Lordships in that case.

25. Thus it stands established by a long line of binding precedents that when an informal enquiry is conducted against a probationer under the relevant service rules merely for determining whether he should be continued in service or not, an innocuous order of discharge passed against him does not visit him with evil consequences of the type noticed in Parshotam Lal Dhingra's case (AIR 1958 SC 36) (supra) and he cannot claim a full-fledged enquiry envisaged by Article 311(2) of the Constitution.

26. In Shamsher Singh v. State of Punjab, 1974-2 Serv LR 701 = (AIR 1974 SC 2192), the Supreme Court had to decide the case of two officers on probation who were members of the Punjab Civil Service (Judicial Branch). One of the allegations against Shamsher Singh was that he had made some changes in the warrant of execution. The Court held as under:--

'It appears that a mountain has been made out of a mole hill. The allegation against the appellant is that he helped the opponent of Prem Sagar. The case against Prem Sagar was heard on 17th April, 1965. Judgment was pronounced the same day. The application for execution of the decree was entertained on the same day by the appellant. In the warrant the appellant wrote with his own hands the words 'Trees, well, crops and other rights attached to the land.' This correction was made by the appellant in order that the warrant might be in conformity with the plaint and the decree. There is nothing wrong in correcting the warrant to make it consistent with the decree. It appears that with regard to the complaint of leaving office early and the complaint of Om Parkash, Agriculture Inspector the appellant was in fact punished and a punishment of warning was inflicted on him.'

27. The appellant claimed protection of Rule 9. Rule 9 makes it incumbent on the authority that the services of a probationer can be terminated on specific fault or on account of unsatisfactory record implying unsuitabillty.

'In the facts and circumstances of this case it is clear that the order of termination of the appellant Shamsher Singh was one of punishment. The authorities were to find out the suitability of the appellant. They however concerned themselves with matters which were really trifle. The appellant rightly corrected the records in the case of Prem Sagar. The appellant did so with his own hand. The order of termination is in infraction of Rule 9. The order of termination is therefore set aside.'

The petition was allowed on the basis that the order terminating the services of the petitioner had been passed in violation of the Punishment and Appeal Rules.

28. The other officer was Ishwar Chand Aggarwal against whom an ex parte enquiry was conducted by the vigilance Department. The material collected in this enquiry was not brought to his notice as required by Rule 9 of the Punishment and Appeals Rules. The Supreme Court held:--

'The High Court for reasons which are not stated requested the Government to depute the Director of Vigilance to hold an enquiry. It is indeed strange that the High Court which had control over the subordinate judiciary asked the Government to hold an enquiry through the Vigilance Department. The members of the Subordinate judiciary are not only under the control of the High Court but ere 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 have the enquiry through the Director of Vigilance was an act of self-abnegation. The contention of the State that the High Court wanted the Government to be satisfied makes matters worse. The Governor will act on the recommendation of the High Court. That is the broad basis of Article 235. The High Court should have conducted the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Article 235 by asking the Government to enquire through the Director of Vigilance.

The Enquiry Officer nominated by the Director of Vigilance recorded the statements of the witnesses behind the back of the appellant. The enquiry wasto 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 misconduct. The High Court accepted the report of the Enquiry Officer and wrote to the Government on 25th June. 1969, that in the light of the report the appellant was not a suitable person to be retained in service. The order of termination was because of the recommendations in the report.

The order of termination of the service 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 Agarwal 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. In such a case the simplicity of the form of the order will not be of any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside.'

The order of termination of service of this Officer wag set aside firstly because the enquiry had been conducted against him by an authority other than the High Court and secondly because the material collected during the course of this en-quiry was not brought to his notice as required by Rule 9 of the Punishment and Appeal Rules, 1952. In other words, his services had been terminated on allegations of misconduct without taking recourse to the statutory rule on the subject. This case does not even by implication overrule the view taken by the Supreme Court in Ram Narayan's case (AIR 1961 SC 177), Ranendra Chandra's case (AIR 1963 SC 1552), Akbar Ali khan's case (AIR 1966 SC 1842) and Sukh Raj Bahadur's case (AIR 1968 SC 1089) (supra).

29. The learned counsel for the appellant has, however, emphasised that, since the High Court had a preliminary enquiry conducted by District and Sessions Judges and accepted the reports submitted by some of them, the actiontaken against the appellant should be held to be violative of Article 311 of the Constitution. This point has also been squarely met by the judgment rendered by Krishna Iyer, J., on his own behalf and on behalf of Bhagwati, J., in the same case, it was observed that a shift was made from the factum of the enquiry to the object of the enquiry. The following observations are quite pertinent:--

'The need, in this branch of jurisprudence, is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty. After all, between 'unsuitability' and 'misconduct', 'thin partitions do their bounds divide'. And, over the years, in the ruling of this Court, the accent has shifted, the canons have varied and predictability has proved difficult because the play of legal light and shade has been baffling. The learned Chief Justice has, in his judgment, tackled this problem and explained the rule which must govern the determination of the question as to when termination of service of a probationer can be said to amount to discharge simpliciter and when it can be said to amount to punishment so as to attract the inhibition of Article 311. We are in agreement with what the learned Chief Justice has said in this connection. So far as the present case is concerned, it is clear on the facts set out in the judgment of the learned Chief Justice that there is breach of the requirements of Rule 9 and the orders of termination passed against the appellants are, en that account, liable to be quashed and set aside.'

30. A similar matter again came up before their Lordships of the Supreme Court in S. P. Vasudeva v. State of Haryana, AIR 1975 SC 2292, and it was held--

'The whole position in law is rather confusing. We think it is time that the whole question was considered de novo and it would be better for all concerned and avoid a lot of avoidable litigation if it should be held that the reversion of a probationer, from a higher to a lower post, or the discharge of a probationer, or the discharge from service of a temporary servant cannot be questioned except on the basis of mala fides in the making of the order.'

The members of the State judicial service sometimes do incur the displeasure of the litigants against whom they decidecases. Such litigants do not spare them and in many cases send a large number of complaints against them to this Court. If this Court were to act indiscriminately on such complaints without getting them verified by the District and Sessions Judges the members of the judicial service would be left with little or no security of tenure. It is precisely for this reason that this Court usually has an enquiry held into the matter before getting the explanation of the judicial officer concerned. Sometimes allegations of corruption are also levelled against judicial officers. Preliminary enquiries are also held to verify such allegations before deciding whether a full-fledged enquiry should be held against the judicial officer who is a probationer for awarding him a punishment or his explanation should be obtained for deciding whether he should be continued in service or not. In the latter class of cases the notice issued usually mentions that explanation was being called for taking action under Rule 7 (2) appearing in Part D of the Haryana Civil Service (Judicial Branch) Rules, 1951, read with Rule 9 of the Pun- jab Civil Services (Punishment and Appeal) Rules, 1952. Such a mention of the ' rules gives a clear indication to the judicial officer concerned that no action to impose a punishment on him was envisaged. This is precisely what was done in the instant case and the appellant cannot contend with any justification that his rights under Art. 311(2) of the Con-(stitution have been violated.

31. The second point raised on behalf of the appellant is also devoid of merit. The documents placed on record by the respondents clearly establish that the proposal to take action against the appellant and the proposal to terminate his services were agreed to by the Chief Minister, Haryana, though he did not append his own signatures on the file. In M/s. Jagatjit Cotton Textile Mills Ltd., Phagwara v. State of Punjab, 1973 Cur LJ 298 = (AIR 1973 Punj 426), I had the occasion to' consider a similar question and observed as under:-

'Neither the Constitution nor. the Rules of Business framed under Article 166(2) of the Constitution provides that each and every file containing the decision of an authority competent to act as Government should be signed by such an authority. The law requires that the matter should be considered by the Government and if evidence is available that the point at issue has received the consideration of the Government, then the notification containing such a decision cannot be called into question merely because the Minister or the other authority empowered to act as Government has not put its signatures on the official file. As already noticed, the Assistant Secretary discussed this matter with the Secretary to the Government on telephone and recorded a note in this behalf. Under these circumstances, it cannot be said that the authority invested with the powers of the Government had not taken a decision before the issuance of the impugned notification.'

In fairness to the learned counsel for the appellant it must be observed that he did not seriously contest the proposition of law enunciated above.

32. I am of the considered view that there is no force in either of the two contentions raised on behalf of the appellant. This appeal deserves to fail and I order accordingly.

S.S. Sandhawalia, J.

33. I agree.


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