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The State of Bihar Vs. Gopi Kishore Prasad - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1960SC689; (1960)ILLJ577SC
ActsConstitution of India - Article 311(2)
AppellantThe State of Bihar
RespondentGopi Kishore Prasad
DispositionAppeal dismissed
Cases ReferredParshotam Lal Dhingra v. Union of India
Excerpt:
.....the customary laws cannot be applied on the yardstick as adopted by the high court. - this was clearly by way of punishment and, therefore, he was entitled to the protection of article 311(2) of the constitution......as follows :1. appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.2. the termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.3. but, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. in such.....
Judgment:
ORDER

:

Ordered that a copy of this Resolution be forwarded to the District Magistrate Gaya for service on Mr. Gopi Kishore Prasad. By order of the Governor of Bihar,

(Sd.) B.N. SINHA,

24-7-53,

Deputy Secretary to Government.'

3. The respondent moved the High Court of Judicature at Patna under Articles 226 and 227 of the Constitution against the order of the Government quoted above. The matter was heard by V. Ramaswami, J. (as he then was) and K. Sahai, J. The High Court by its judgment dated January 19, 1955, allowed the application and quashed the order aforesaid of the Government dated July 23, 1953. Ramaswami, J., dealt with all the contentions raised on behalf of the respondent--petitioner in the High Court--and after examining the relevant rules of the Civil Service (Classification, Control and Appeal) Rules and Article 311(2) of the Constitution, came to the conclusion that the respondent was not entitled to a full enquiry as contemplated by the first paragraph of Rule 55 of the Civil Service (Classification, Control and Appeal) Rules, but that he was entitled to the protection under Article 311(2) of the Constitution. He also held that there had been a violation of the principles of natural justice, inasmuch as the special reports of the Commissioner of Chotanagpur Division and of the Deputy Inspector-General of Police in the Criminal Investigation Department, had not been shown to the respondent. On these grounds he held that the order of discharge impugned by the respondent was illegal and ultra vires. Sahai, J., did not express a decided opinion on the question whether the respondent was entitled to the protection of Article 311(2) of the Constitution, because in his view, the decision of the judicial Committee of the Privy Council in High Commr. for India v. I.M. Lall, was concerned with a confirmed officer, whereas the respondent was only an officer on probation. But he agreed with Ramaswami, J., in the result, on the ground of the violation of the principles of natural justice.

4. The State of Bihar moved the High Court for leave to appeal to this Court. The application for leave under Article 132(1) of the Constitution was heard by S.K. Das, C. J., (as he then was) and Kanhaiya Singh, J. The High Court, by its order dated August 8, 1955, refused to grant the leave on the ground that the case had not really been determined on an interpretation of Article 311 of the Constitution, but substantially on the ground that there had been an infringement of the principles of natural justice. The State of Bihar thereafter moved this Court for special leave to appeal, which was granted on November 28, 1955. That is now the matter has come before this Court.

5. The main point in controversy before us turns on the question whether the provisions of Article 311(2) of the Constitution are attracted to the case of a public servant who was still a probationer and had not been confirmed in a substantive post. The question whether there had or had not been a violation of the principles of natural justice, which was the basis of the decision in the High Court as indicated above, was not raised before us. The judgment of the High Court could be allowed to rest on that basis alone, but as it appears that this Court granted special leave to determine the controversy based upon the interpretation of Article 311(2) of the Constitution, we think it necessary to express our opinion on that part of the case. The decision of this Court in Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC , had not been given till then. If that decision were in existence then, perhaps the special leave would not have been granted. In our opinion, the controversy raised in this case is completely covered by the decision of the Constitution Bench of this Court in Dhingra's case, : (1958)ILLJ544SC . The main question for decision in that case was whether the appellant Dhingra had been reduced in rank by way of punishment as a result of the order of the General Manager of the Railway. Though, in that case, this Court decided that the order impugned had not that effect, this Court went elaborately into all the implications of the service conditions, with particular reference to the Railway Service Rules and the constitutional provisions contained in Section 240 of the Government of India Act, 1935 and Article 311 of the Constitution. The elaborate discussion in that judgment has reference to all stages of employment in the public services including temporary posts, probationers, as also confirmed officers. In so far as those observations have a bearing on the termination of service or discharge of a probationary public servant, they may be summarised as follows :

1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.

4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 811(2) of the Constitution and will, therefore, be liable to be struck down.

5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.

6. It would thus appear that in the instant case, though the respondent was only a probationer, he was discharged from service really because the Government had, on enquiry, come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment and, therefore, he was entitled to the protection of Article 311(2) of the Constitution. It was argued on behalf of the appellant that the respondent, being a mere probationer, could be discharged without any enquiry into his conduct being made and his discharge could not mean any punishment to him, because he had no right to a post. It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersions on his honesty or competence, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist, upon the protection of Article 311(2) of the Constitution. That protection not having been given to him, he had the right to seek his redress in court. It must, therefore, be held that the respondent had been wrongly deprived of the protection afforded by Article 311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution.

7. The appeal is accordingly dismissed with costs.


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