TMI Blog1976 (3) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... given for the reversion in the impugned order: that the respondent was not fit yet for the higher post. The learned single Judge and the Division Bench in the Allahabad High Court were referred to several decisions of this Court mentioned by the Division Bench These were: State of Bombay v. F. A. Abraham([1962] (2) Suppl. S.C.R. 92.); Champaklal Chimanlal Shah v. Union of India ([1964](5) S.C.R. 190) Divisional Personnel Officer v. Raghavendrachar ([1966] (3) S.C.R. 106); and State of U.P. Ors. v. Sughar Singh([1974] 2 S.C.R. 335). The Allahabad High Court had followed what it considered to be the ratio decidendi of Sughar Singh's case (supra), the last case of this Court available at the time. Special leave to appeal was sought in the case before us on the ground that Sughar Singh's case (supra) had been misunderstood by the High Court and required some elucidation by this Court. Special leave was granted on condition that, in any event, the costs of the respondent will be borne by the appellants. The question to be determined was assumed to be one of law only. The appeal was, therefore, to be heard on the special leave paper 'Book with such additional docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other reason not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But, in these cases, the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and, if his services are terminated without following the perversions of Article 311(2), he can claim protection. In Gopi Kishore Prasad v. Union of India A.I.R. 1960 S.C., 689, it was said that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... times that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. We have examined the record of the case of Sughar Singh (supra). our judgment in the case perhaps does not fully bring out the factual background on which the decision of that case was based. In that case, the Government servant concerned had been suspected of making an alteration in his own service record. It was not shown how he could possibly have had access to his service record as he was not in charge of the record. One of the alterations made meant an increase in his age so that he would, according to the altered state of the record, have had to retire earlier. Sughar Singh complained, when asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se entry in question, and that there was no inefficiency on his part, were not controverted in the counter-affidavit filed. This learned Judge found the reversion order against Sughar Singh to be punitive. He, however, added that, even if the order could not be held to be punitive, it was certainly violative of the guarantee contained in Article 16(1) of the Constitution. When the matter was heard by Verma, C.J., on a reference occasioned by the difference of opinion between the two learned Judges on the Division Bench, it was again argued that both Articles 16(1) and 311(2) had been infringed. The learned Chief Justice did not find sufficient material to uphold a violation of Article 16. But, after taking into account the admission of the Counsel appearing for the State that the sudden reversion of Sughar Singh could not at all be explained or accounted for unless it could be linked with the adverse entry, the learned Chief Justice held the action against Sughar Singh to be punitive and violative of Article 311(2) of the Constitution. Sughar Singh had been held to have been punished for nothing beyond what had taken place two years before the reversion order so that it could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Articles 14 and 16 of the Constitution. It seems to us to be clear, after examining the record of Sughar Singh's case (supra), that what weighed with this Court was not only that there was a sufficient element of punishment in reverting Sughar Singh: for a supposed wrong done, from which the order of reversion could not be divorced, so that Article 311(2) had to be complied with, but, there was also enough of an impropriety and unreasonableness in the action taken against Sughar Singh, solely for a very stale reason, which had become logically quite disconnected, to make out a case of malice in law even if it was not a case of malice in fact . If an authority acts on what are, justly and logically viewed, extraneous sounds, it would be such a case. All these aspects of the case were kept in view. by this Court when it recorded the conclusion: In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be liable to be quashed on the ground of contravention of Articles 14 and 16 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alice in fact, which are generally seriously disputed, and the case cannot be satisfactorily decided without a detailed adduction of evidence of cross-examination of witnesses, Courts will leave the party aggrieved to an ordinary civil suit. This rule, relating to exercise of discretionary powers under Article 226, is also well settled. We have tried to gather, from such materials on the record of the case before us as have been made available to us by the parties, the spirit and substance , to use the expressions employed by this Court in Champaklal's case e (supra), of the action taken against the contesting respondent. We have examined the background of the order of reversion. We find that, on the one hand, there is fulsome praise, ill testimonials given to the respondent by his superior officers, for meritorious work done by him. On the other hand, we find that, preceding the order of reversion, passed on 20th February, 1973, against the respondent, there is a spurt of warnings and very vague complaints and adverse remarks of 30th September, 1972, and 4th October, 1972, 21st October, 1972, and 25th January, 1973, presumably all by a particular superior officer, alleging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent which were quite vague. If there had been anything really serious against the respondent, proceedings under Article 311 (2) of the Constitution should have been instituted. Indeed, they can still be taken if there are substantial grounds against the respondent. On the other hand, if the action against him is due merely to a feeling of pique or anger with him on the part of his superior officers, to which the respondent's tactlessness may have contributed, it did not deserve anything more than the warnings and the adverse entry. Indeed, even the bona fides of the last adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based. To allege such misconduct against him and then to stigmatise the respondent as not fit for working in the higher post could appear, on the facts and circumstances of the particular case, to be more vindictive than just and fair. It may mar or delay his chances of promotion in future. We, however, refrain from commenting further on what may or may not have been the real cause of the respondent&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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