TMI Blog1979 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ur appointment is liable to be terminated without notice. After the period of probation your services are liable to be terminated on one month's notice as long as your appointment is temporary. It should be clearly understood that your appointment at present is purely temporary. Respondent No.1 pursuant to the said letter of appointment joined the Judicial Service, Class II, in the State of Maharashtra on the 7th December, 1960. The two years' probationary period originally fixed expired on 6th December, 1962 even so he was allowed to continue in the post only in an officiating capacity and was not confirmed. His services were terminated by a simple order of termination dated the 15th December, 1971 which ran as follows:- The Government is pleased to terminate the services of Shri V. R. Saboji, Officiating Civil Judge (Junior Division) and Judicial Magistrate, First Class, Kalamnuri, District Parbhani with effect from 1st February, 1972. A copy of the above order was forwarded to and served upon the first respondent alongwith a covering letter of that date expressly stating therein:- Your appointment is still temporary and your services are liable to be term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other four points the High Court has held-(1) that the respondent No. 1 will be deemed to have been confirmed in his post because his work was satisfactory and a vacancy in the permanent cadre was available. The Government had no discretion in the matter and it was bound to confirm the said respondent under Rule 4(2) (iv) of the Rules; (2) that the appointment of respondent No. 1, therefore, could not be terminated by a simple notice of termination and it was passed by way of punishment in violation of Article 311(2) of the Constitution. The High Court did not hear the counsel on either side on the point of mala fides and they also agreed not to advance any argument on that point, as mentioned in the High Court judgment. Before us also, except in passing, no argument of any substance was advanced to press the point of mala fides. The correctness of the decision of the High Court was assailed before us by Mr. M. N. Phadke, appearing for the appellant, while it was sought to be sustained by Mr. F. S. Nariman appearing for respondent No. 1. I now proceed to examine the rival contentions of the parties. In the High Court judgment there is a reference to an undertaking given by resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kedar Nath Bahl v. The State of Punjab and others(2) Palekar J. delivering the judgment on behalf of this Court said at page 876 column 2:- The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. I am aware that a review against this judgment was allowed and the appeal was re-heard recently by a Division Bench of this Court to which I was a party. The appeal was again dismissed and no different view of law was expressed therein than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous uncertainities of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court. It is on the record of those writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government. These observations were made with reference to apparent discriminatory results which followed by applying different standards to the members of the two groups for determining their seniority, one the direct recruits and the other promotees. I am not concerned with such a situation in the present case. It was not suggested on behalf of the Government that the confirmation depended on the sweet will and the pleasure of the Government. What was, however, argued was that on the fulfillment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Article 311(2). On my finding it is manifest that it is not so. He was continuing in the post in an officiating capacity. His services could be terminated by one month's notice simpliciter according to the terms of the employment. Secondly the question to be examined is whether the termination was by way of punishment. Even in the case of a temporary or officiating Government servant his services cannot be terminated by way of punishment casting a stigma on him in violation of the requirement of Article 311(2). This principle is beyond any dispute but the difficulty comes in the application of the said principle from case to case. If a Government servant is compulsorily retired or one who is officiating in a higher post is reverted to his parent cadre, or when the services of an officiating or temporary Government servant are dispensed with by an order of termination simpliciter, then problems arise in finding out whether it is by way of punishment. In different kinds of situation, different views have been expressed. Yet the underlying principle remains the same. One should not forget a practical and reasonable approach to the problem in such cases. Ordinarily and gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that where the enquiry was held in order to find out the suitability of the official concerned the order would not be vitiated. In certain other cases it has been held that the enquiry was held with a view to punish and as the enquiry did not satisfy the requirements of Article 311 the punishment was bad. It appears to us that this theory as to whether the reversion to a lower post of a probationer in a higher post, or the discharge of a probationer, or the discharge from service of a temporary servant was meant as a punishment leads to a very peculiar situation. After ali, if such an order gives no reasons the Court will not normally interfere because ex-facie there is nothing to show that the order was intended as a punishment. Jaswant Singh J., delivering the judgment of this Court in State of U.P. v. Ram Chandra Trivedi(1) on behalf of a Division Bench of this Court, the other two members of which were Khanna and Sarkaria JJ., reviewed all the earlier cases of this Court very elaborately including the well-known judgment of Das C.J., in Parshotam Lal Dhingra v. Union of India(2) and the comparatively recent decision of a Bench of 7 Judges in Shamsher Singh Anr. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had been passed because of some hostile motive which the authority terminating the services had against the Government servant concerned. On the facts of this case it was found that the decision of the High Court allowing the Writ Petition of the Government servant was correct and was covered by some earlier decisions of this Court. I may briefly refer to the facts of this case also from the judgment. The appellant in the appeal was the Manager of a Government Press who had terminated the services of Belliappa by the impugned order without assigning any reason, albeit in accordance with the conditions of his service, while three employees, similarly situated, junior to Belliappa in the same cadre had been retained. A charge of hostile discrimination was levelled with sufficient particularity against the appellant. Hostile animus was also attributed by Belliappa in his writ petition to his superior officers. He asserted that his service record was good. This fact was not controverted by the appellant by filing any counter-affidavit. The impugned order was preceded by a show-cause notice of proposed disciplinary action against Belliappa. In such a situation it was observed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Judge of the High Court who might have dealt with this matter. Nor was any such allegation made against the Law Secretary or the Chief Secretary or any Minister of the Government. After all when the orders were passed against respondent no. 1 the High Court must have examined the matter carefully and found that it was not desirable to allow respondent no. 1 to continue in the service and must have found further that the facts did not warrant or make it expedient to hold any regular enquiry against respondent no. 1 and to remove him from service by way of punishment. I may add that the High Court file containing the recommendation in case of respondent no. 1 was ready in the High Court to be shown to the Division Bench which heard the Writ Petition. But the learned Judges refused to see it because the State Counsel was not prepared to show it to respondent no. 1. Obviously it could not be shown to him. Otherwise he would have come out with a plea, right or wrong, that the order was made against him by way of punishment. This is the delicate area where the Government and the State Counsel find themselves in a peculiar and delicate position. Mr. Phadke also informed us that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely a termination order simpliciter, there is no case ordinarily for assuming that it is anything but what it purports to be. Where, however, the order discloses on the face of it that a stigma is cast on the Government servant or that it visits him with penal consequences, then plainly the case is one of punishment. There may still be another kind of case where although the termination of service is intended by way of punishment, the order is framed as a termination simpliciter. In such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 311(2) of the Constitution have not been satisfied. In a given case, the Government servant may succeed in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth. It is in such a case generally that the official records may be called for by the Court. It is not open to the Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government servant succeeding in establishing it to be so the court is prohibited from examining the official records for the purpose of verifying the true position. The question of scrutinising the official records arises where a government servant is entitled to show that although the order impugned by him purports to be an order of termination simpliciter it is in fact an order made by way of punishment. In regard to that right this Court specifically referred in Ram Chandra Trivedi (supra) to the decisions in Union of India Ors. v. R. S. Dhaba and R. S. Sial v. The State of U.P. Ors.(2) with approval and observed :- The form of the order, however, is not conclusive to its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. And it proceeded to quote from Shamsher Singh Anr. v. State of Punjab(1), decided by a Bench of seven Judges of this Court, that : No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad of work presently occupying it. Until the day that the recommendation is accepted, I believe it to be true that the jurisdiction of the courts extends to examining and scrutinising the official records in the circumstances to which I have specifically adverted. In the present case if the High Court refused to examine the official records, I presume that the reason was that the respondent Government servant had failed to make out any case whatever that the order was by way of punishment, and there being no doubt in the mind of the High Court on the point it was justified in declining to look into the official records. That the respondent Government servant has been unable to make out any case at all that the impugned order is by way of punishment is clearly evident from the material before us. No occasion arises in such a case for scrutinising the official records. The appeal is allowed, the judgment and order of the High Court are set aside and the Writ Petition filed by the first respondent is dismissed. In view of the order already made by this Court that the respondent will be entitled to his costs from the appellant in any event, the respondent will be paid his costs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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