1. This appeal is directed against the judgment and decree of the Senior Subordinate Judge, Chandigarh, dated 16-5-1969, granting a declaratory decree to the respondent Shamsher Singh against the State of Punjab to the effect that his removal from the service as Subordinate Judge in the State of Punjab under the impugned order Exhibit P.2 is Illegal and that he continues to be in ser-vice in the State of Punjab as Subordinate Judge,
2. Shamsher Singh respondent was appointed as Subordinate Judge in the Punjab Civil Service (Judicial Branch) on 1-5-1964 by the Governor of Punjab under Article 234 of the Constitution of India read with the Punjab Civil Service (Judicial Branch) (First Amendment) Rules, 1963. He was appointed on probation but before the completion of his probation period, his services were terminated on 24-4-67, vide orders Exhibit P.2. The said order was passed on the recommendation of the High Court, Exhibit D.3 dated 14-4-1967. The order of termination of the services of the plaintiff was signed by Shri G. Bala-krishanan of the Services Department of the Punjab Government, and was communicated to him on 29-4-1967. The plaintiff raised a number of pleas in the suit which pleas were controverted by the appellant State of Punjab in the written statement,
3. On the pleadings of the parties the learned trial Judge framed the following 13 issues:--
1. Whether the suit is bad for mis-joinder of parties as alleged?
2. Whether the termination of the services of the plaintiff is by an authority subordinate to the Governor? If so, what is its effect?
3. Whether the order terminating the services of the plaintiff was notified according to law? If not, what is the effect?
4. Whether the notice to show cause why the services of the plaintiff should not be terminated issued by proper authority?
5. Whether the order of termination is punitive and is not within the scope of Rule 9 of the Government Servants (Punishment and Appeal) Rules as alleged?
6. Whether the order of termination of services is based on vague allegations and on inadmissible evidence both on grounds of facts and law as alleged?
7. Whether the order of termination of services should have been passed on the recommendation of the High Court and whether the High Court did recommend the termination of services? If not, what is the effect?
8. Whether before terminating the services of the plaintiff his explanation was considered and the order was passed according to the Government Servants (Punishment and Appeal) Rules?
9. What is the effect of absence of permanent allotment of the plaintiff under Section 82 of the Punjab Reorganisation Act?
10. Whether the rules of P. C. S. Judicial Branch dealing with the services of the plaintiff were framed according to law?
11. What is the effect of not imparting training to the plaintiff as alleged?
12. Whether the order is discriminatory as alleged in para 21 of the plaint?
4. Issue No. 1 was decided in favour of the appellant State of Punjab. The learned trial Judge found issue No. 2 in favour of the plaintiff and came to the finding that the services of the plaintiff were terminated by the Chief Minister, an authority subordinate to the Governor, who was the appointing authority of the plaintiff. Issue No. 3 was found by the learned trial Judge against the plain tiff-respondent. Under issue No. 4 it was found by the learned trial Judge that the show cause notice having been issued by the Chief Secretary to Govt. Punjab was not the proper notice and, therefore, this issue was also found in favour of the plaintiff-respondent. Under issue No. 5 it was found that the plaintiff is not entitled to invoke the protection of Article 311 of the Constitution of India and, therefore, this issue was decided against the plaintiff. Issues Nos. 9, 10 and 12 were not pressed before the learned trial Judge by the learned counsel for the plaintiff and all these three issues were decided against the plaintiff.
Issue No. 6 was also decided against the plaintiff. Issue No. 7 was decided in favour of the State Government. Issue No. 8 was also decided in favour of the Government. Issue No. 11 was found against the plaintiff-respondent. As a consequence of the findings mentioned above, the learned trial Judge decreed the suit of the plaintiff and granted him a declaratory decree against the State of Punjab quashing the removal of the plaintiff from the post of Subordinate Judge of the Punjab State.
5. Mr. H.L. Sibal, the learned Advocate-General, Punjab, assailed the finding of the learned trial Judge on issues Nos. 2 and 4. He contended that the finding arrived at by the learned trial Judge on Issue No. 2 is contrary to law and the same is liable to be set aside. The learned Advocate-General straightway conceded that there are some provisions in the Constitution where the Governor or the President are enjoined to act upon their individual discretion and not with the aid of the Council of Ministers. But he contended that provisions of Article 154 read with Articles 163 and 166 of the Constitution clearly provide the democratic machinery through which the executive powers of the State which is vested in the Governor shall have to be exercised.
The learned Advocate-General contended that no doubt the provision of Article 233of the Constitution, whereby the appointments of District Judges in a State have to be made by the Governor of the State in consultation with the High Court, does postulate individual discretion of the Governor, therefore, he has no hesitation in conceding that as far as the question of appointment and removal of the District Judges is concerned, it is within the Individual discretion of the Governor that the orders have to be passed by him and not by the State Government as such. He contended that the provisions of Article 234 of the Constitution are differently worded. His contention is that as far as the question of appointment and removal of the persons other than the District Judges in the Judicial Service of a State is concerned, the Governor of a State does not act in his individual discretion but in fact in accordance with the rules framed by him in consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such a State and it is the State Government who is to pass such orders.
6. The learned counsel further pointed out the provisions of General Clauses Act, 1897, Section 3, Clauses 59, 60 (a), 60 (b) and 60 (c) where it is provided that in respect of anything done after the commencement and before the commencement of the Constitution, the State Government shall mean in a Part A State, the Governor; in a Part B State, the Rajpramukh, and in a Part C State, the Central Government. The learned Advocate-General further pointed out that the Governor of Punjab framed the Punjab Civil Services (Judicial Branch) Rules, 1951, in exercise of the powers conferred by Art 234 read with the proviso to Article 309 of the Constitution of India, and Rule 7 deals with the appointment of the persons to the Punjab Civil Service (Judicial Branch). His contention is that in fact it is the State Government who is to make the appointment and, therefore, the State Government is also competent to remove the person so appointed to the Punjab Civil Service (Judicial Branch).
He contended that in view of the Rules of Business of the Punjab Government, 1966, framed by the Governor of Punjab, it was the Chief Minister who was competent to dispose of the cases relating to the administration of justice as he was in charge of the said portfolio and the orders having been passed by the said authority and issued in the name of the Governor of Punjab, keeping in view the provisions of Article 166 of the Constitution, it cannot be said that the orders have been issued by an authority subordinate to the Governor, who is the appointing authority, The learned Advocate-General, for this proposition, has relied upon a ruling reported as Mohammad Ghouse v. State of Andhra, AIR 1957 SC 246, and he con-tended that the finding of the learned trial Judge on issue No. 2 is erroneous and should be reversed.
7. Mr. B.S. Khoji, the learned counsel for the respondent, contended that the provisions of Article 234 are in the same terms as that of Article 233 of the Constitution. He relied upon the rulings cited by the learned trial Judge and contended that the finding of the learned trial Judge on issue No. 2 is in accordance with law and the same should not be set aside.
8. After considering the respective contentions of the learned counsel for the parties, and after going through the case law referred to in the judgment and also after examining Mohammad Ghouse's case, AIR 1957 SC 246 (supra), we are of the opinion that the contention of the learned counsel for the appellant has to be accepted. The facts in Mohammad Ghouse's case, AIR 1957 SC 246 (supra) are that Mohammad Ghouse, appellant before the Supreme Court, was recruited to the Madras Provincial Judicial Service as District Munsif in 1935. While he was posted as Subordinate Judge at Masulipatnam, Krishna District, he heard the arguments in a case pending before him and reserved the judgment. Before he had pronounced the judgment, a transfer application was filed in the High Court of Madras for transferring the said suit to some other Court on the ground that the appellant was attempting through his brother to take bribe from the parties. The said case was transferred and the High Court started investigation into the allegations made in the affidavit in the stay petition which resulted into an enquiry and a number of charges were framed against him.
The appellant filed a petition under Article 226 of the Constitution of India in the High Court of Madras for quashing the order of suspension dated 28-1-1954 on the ground, firstly, that in accordance with the rules applicable to him. the enquiry could only be held by a Tribunal to which the Government might have referred the matter and, therefore, proceedings, which culminated in his suspension, were without jurisdiction; and, secondly, that the order in question was void and it was in contravention of Article 311 of the Constitution. It is the second contention with which we are now concerned.
9. In para 8 of the judgment, the contention raised on behalf of the appellant that the appointing authority of the appellant was the Governor of the Province and it was the Governor alone who could dismiss or remove him from the service and the order of suspension made by the High Court was in contravention of the provisions of Article 311 of the Constitution, was repelled. Their Lordships of the Supreme Court while repelling this contention held that:--
'The facts are that Balakrishna Ayyar, J. sent his report on the enquiry into the charges against the appellant, and expressed his opinion that he should be dismissed or removed from service. The High Court approved of it, and passed an order on January 28, 1954, suspending him until further orders. The report was then sent to the Government for action, and, in fact, the Andhra Government has issued a notice to the appellant on August 12, 1954, to show cause why he should not be dismissed or removed from service. Thus, it is the appropriate authority under Article 311 that proposes to take action against the appellant, and it is for that authority to pass the ultimate order in the matter.'
10. No doubt, there is no detailed discussion as to the scope of the provisions of Article 234 as compared with the provisions of Article 233 of the Constitution, but the decision of their Lordships of the Supreme Court is binding upon us and we have no option but to follow the same. Thus we find that their Lordships found that it was the Andhra Government which issued a notice to the appellant to show cause as to why he should not be dismissed or removed from service and the State Government was found to be a proper authority for the purposes of taking action, under the provisions of Article 311 of the Constitution in connection with the Subordinate Judge.
11. The judgments relied upon by the learned trial Judge are not relevant to the facts of the present case. Manmohan Singh Tandon v. Manmohan Singh Gujral, 1969 Ser LR 194 = (AIR 1969 Punj 331) a Division Judgment of this Court, is not quite relevant to the facts of the present case as their Lordships in that case were considering the case of the appointment of a District Judge under Article 233(1) of the Constitution. Similarly, in State of West Bengal v. Nripendra Nath Bagchl, AIR 1960 SC 447, their Lordships of the Supreme Court were considering the scope of Articles 235 and 311 of the Constitution. This was also a case of dismissal of a District and Sessions Judge.
In case reported as Javantilal Amratlal Shodhan v. F.N. Rana, AIR 1964 SC 648, their Lordships held that in view of the provisions of Article 258(1) of the Constitution, the President of India can entrust the State functions which are vested in the Union and not those which are vested in him as President. In Jyoti Prakash Mitter v. Hon'ble Mr. Justice H.K. Bose, Chief Justice, Calcutta, AIR 1965 SC 961, it was held by their Lordships that under Article 217(3) of the Constitution, the question of determination of age of the High Court Judge vests exclusively in the President of India in his individual discretion. No doubt that there are certain specifiedconstitutional powers of the Governor on one hand and the executive powers of the State Government headed by the Governor on the other, in the Constitution of India, but it has not been shown to us that the provisions of Article 234 of the Constitution belongs to the category where the Governor has to act in his individual discretion.
The only case decided by the Supreme Court which throws light on the issue involved in this case is Moharnmad Ghouse's case, AIR 1957 SC 246 (supra) and a similar contention as has already been raised on behalf of the plaintiff-respondent, was repelled by the Supreme Court in that judgment. Following this authority of the Supreme Court, we have no option but to accept the contention of the learned Advocate General, Punjab, and reverse the finding of the learned trial Judge on issue No. 2. Thus we find that the order terminating the services of the plaintiff-respondent was not issued by an authority subordinate to the appointing authority of the plaintiff-respondent.
12. In view of our finding on issue No. 2, the finding of the learned trial Court on issue No. 4 cannot stand. If the State Government is the appropriate appointing and removing authority of a Subordinate Judge, it is not shown to us as to why the show cause notice issued by the Chief Secretary to the State Government was invalid. It may be mentioned that this show cause notice was issued by the Chief Secretary to Government, Punjab, on the recommendation of the High Court, therefore, we reverse the finding of the learned trial Court on issue No. 4 also.
13. Faced with this situation, the learned counsel for the respondent raised the following additional points. The learned counsel contended that the finding of the learned trial Court on issue No. 5 is erroneous. There were three charges in the show cause notice which charges relate to a misconduct on the part of the plaintiff. He contended that in fact a regular enquiry should have been instituted against the plaintiff and his services could not be terminated under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. The learned counsel for this contention relied on State of Uttar Pradesh v. C.S. Sharma, AIR 1968 SC 158, and contended that in view of the serious allegations being levelled against him in the show cause notice, which are in the following terms, a regular enquiry should have been instituted.
'(2) While posted at Sultanpur Lodhi: (i) You decided, the case titled as 'Prem Sagar v. Sohan Lal' without affording full opportunity to the plaintiff to lead evidence.
(ii) In the case 'Sohan Lal v. Prem Sagar' the decree-holder made an applica-tion for execution on 17-4-1965, without enclosing therewith a copy of the judgment and that of the Jamabandi of the land to be attached. You, without obtaining office report, ordered on the same date, that warrants for possession be issued. You also incorporated some additions in the original judgment and the warrants of possession, later on with different ink and thus behaved in a most irresponsible manner. The District Judge, Kapurthala, in hi;, report stated inter alia as under:--
'The Sub Judge Shri Shamsher Singh also it appears was inclined to help the opponents of Shri Prem Sagar. In the complaint case when the complainant (Shri Prem Sagar) had examined the witnesses and had closed his evidence, there was no occasion for the complaint to be sent to S. H. O. Sultanpur, for investigation under Section 202, Criminal P. C. The learned Sub Judge had not properly tried the suit instituted by the opponents of Prem Sagar. Three issues suggested by Shri Prem Sagar, who was defendant in that suit, were not framed. The other issues in that suit were framed or 7-4-1965. After that no evidence was allowed to be led in that suit- The suit instituted by the opponents of Shri Prem Sagar which was for possession of the land, was decreed prematurely. The more objectionable procedure was followed in the execution proceedings. Although arguments were heard in the suit on 17-4-1965, but the judgments were announced the same day and the execution application was entertained the same day and the learned Sub Judge had without taking report of the office ordered the warrant for possession to be issued the same day. It appears that the warrant was issued without delay, because it was taken to Kapurthala on the same day and endorsement of the Collector was obtained on the same date. In the warrant, the learned Sub Judge had written with his own hand the words 'Trees, well, crops and other rights attached with the land.' Although the words 'crops' did not find place in the suit, but it was added in the typed judgment by the learned Sub-Judge with his own pen and then this word was incorporated in the warrant also.'
(iii) You misused your position as a Judicial Magistrate by proclaiming that you would get one Om Parkash Agriculture Inspector, involved in a case, if he did not co-operate with Shri Mangal Singh, Block Development Officer, Sultanpur, who was a personal friend of yours. As a result of a complaint by the aforesaid Om Parkash a warning was administered to you.'
14. We are unable to accept this con-tention of the learned counsel for the respondent. In accordance with the provi-sions of Rule 9, where it is proposed to terminate the employment of the proba-tioner 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 unsuitability 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 It is not the case of the plaintiff that he was being dismissed from the service. Of course, if he was being dismissed from the service on the allegations of misconduct, then a regular enquiry was necessary and should have been held before his services could be terminated. But here is a case of a probationer whose conduct was being watched during the probationary period and about whom the opinion had to be formed whether he completed the probation period successfully or was he unsuitable for holding the post.
In the present case the authorities concerned watched the working of the plaintiff during the period of his probation and came to the conclusion that he was not suitable to be retained in the service. For the purposes of Rule 9, a show cause notice was issued and his explanation was considered by the High Court before a recommendation was made to the State Government for terminating his services. No stigma is attached by the impugned order and the plaintiff cannot be debarred from seeking any other employment in the Government for that reason. Of course if the plaintiff would have been dismissed on the ground of misconduct or some such charge, a regular enquiry was essential.
15. C.S. Sharma's case, AIR 1968 SC 158 (supra), on which the learned counsel for the plaintiff-respondent relies, is distinguishable on facts. In that case. Shri Sharma was dismissed on the basis of an ex parte preliminary enquiry held against him. In the present case, no preliminary ex parte enquiry was held against the plaintiff-respondent. It was in these circumstances that their Lordships of the Supreme Court have held that the order terminating the services of the petitioner was bad as the proper opportunity was not afforded to Shri Sharma, and he was being dismissed on the basis of an enquiry which offended the provisions of Article 311(2) of the Constitution.
16. The learned counsel for the plaintiff-respondent next contended that the finding of the learned trial Court on issue No. 8 is erroneous. He contended that the plaintiff had submitted his preliminary explanation to the High Court and in reply to the show cause notice he mentioned that he did not want to say anything except what he had already stated in his preliminary explanation. He contended that the copy of the preliminary explanationwas not forwarded by the High Court to the State Government and therefore, it was not before the State Government that (when--Ed.) the final orders were passed. In this view of the matter the learned counsel for the respondent contended that the finding of the learned trial Judge on this issue is likely to be reversed.
17. We are unable to agree with this contention of the learned counsel for the respondent. There is no doubt about the fact that the preliminary explanation of the plaintiff was considered by the High Court and after considering the same, a reference, copy of which is marked as Exhibit D.1, was made by the Registrar of the High Court to the Chief Secretary to the Government of Punjab wherein this fact was mentioned that the Hon'ble the Chief Justice and Judges of the High Court had been reviewing the work and conduct of Shri Shamsher Singh, plaintiff-respondent, with reference to the record of his service, reports of the District and Sessions Judges, the results of enquiries into complaints against him, the latest annual confidential report received from the District and Sessions Judge, Jullundur and had gone through the preliminary explanation submitted by Shri Shamsher Singh and that their Lordships were of the considered view that this officer had failed to make a satisfactory grade in service as his work and conduct had been consistently listed as 'below average'. Therefore, it was recommended that the proceedings should be taken against him for terminating his services.
When a final show cause notice was given by the Chief Secretary to Government. Punjab, it was open to the plaintiff-respondent to have reiterated what he had submitted in his preliminary explanation or to have attached a copy of the said explanation along with his final explanation. Merely because the copy of the preliminary explanation was not forwarded by the High Court to the State Government, would not warrant a finding that the explanation given by the plaintiff was not before the appointing authority. In fact the reply given by the plaintiff to the show cause notice issued by the Chief Secretary to Government, Punjab, was before the State Government, copy of which is marked as Exhibit D.2, and it was after the consideration of the explanation that the impugned orders were passed. Thus there is no merit in this contention of the learned counsel for the plaintiff-respondent.
18. The learned counsel then contended that the final recommendation of the High Court to the State Government was not made in the meeting of the Hon'ble Judges. This contention of the learned counsel is again without any merit. The preliminary explanation submitted by theplaintiff-respondent was considered in the meeting of the Hon'ble Judges of the High Court and in his final explanation no new facts were mentioned by him which could be worthy of any consideration. In this situation, it cannot be held that the explanation submitted by the plaintiff-respondent to the show cause notice was not considered by the High Court.
19. The learned counsel for the respondent next contended that the Punjab Civil Services (Judicial Branch) Rules. 1951, having not been framed by the Governor himself under the provisions of Article 234 of the Constitution, were ultra vires and, therefore, the appointment of the plaintiff is not governed by any such rules. We see no merit in this contention of the learned counsel for the respondent as well. The opening part of the rules clearly postulates that the said rules are being framed in exercise of the powers conferred bv Article 234 read with the proviso to Article 309 of the Constitution of India, after consultation with the State Public Service Commission and the High Court of Pun-jab providing for the appointment of persons- as Subordinate Judges in the Punjab Civil Service (Judicial Branch) and regulating the recruitment and the conditions of service of persons appointed thereto. This contention of the learned counsel is again without any merit.
20. No other point is pressed by the learned counsel for the appellant or by the learned counsel for the respondent.
21. For the reasons recorded above, this appeal is allowed, the judgment and decree of the learned trial Judge are set aside and the suit of the plaintiff-respondent stands dismissed. However, keening in view the facts and circumstances of this case, there will be no order as to costs.