C. Apparao vs The Deputy Inspector-General of Police, Northern Range, Waltair and another

Mohammad Ahmed Ansari, J.—This Letters Patent Appeal is against the Judgment, dismissing a petition for Writ of Certiorari to vacate the order by the Deputy Inspector-General of Police, Northern Range, Waltair, which had terminated the probation of the appellant as a Sub-Officer.

The facts in the appeal are not complicated. In July, 1942, the appellant was promoted to the post of Leading Fireman in the Fire Service, and was later sent for training to Madras Fire Service, Provincial Training School under orders dated 27-6-1950. After completion of the training he was appointed as Sub-Officer to the Fire Service Section, Vizagapatam Port, be an order of the Inspector-General of Police Fire Service Branch, Madras.

The aforesaid promotion was with effect from 22-10-1950, and in the normal course the period of the probation would have been completed on 21-10-1952. While discharging the duties as the Sub-Officer the appellant committed certain irregularities and was awarded two censures. During the same period he committee another irregularity of having painted a Fir Service Vehicle contrary to the prevailing Rule and Rs. 29/11/0 was recovered from his pa: Thereafter the appellant''s probation was extended for six months and this further period expired in April 1953.

The memorandum extending the perto(sic) however, was not received by the appellant t(sic) the same month of April. It is admitted the during this extended period two minor irregularities were again committed, for which the Department awarded the appellant deferred r(sic)primands. Though the extended period expire by April 1953, no steps were taken till 11-1-195 On the aforesaid date, the appellant receive a memorandum from the Office of the Deputy Inspector-General of Police, Northern Rang Waltair, calling upon him to show cause why h(sic) probation should not be ceased.

He submitted his explanation but on 8-1954, the Deputy Inspector-General of Polk who has been impleaded as respondent No. 1 the Writ Petition, passed orders terminating the appellant''s probation and reverting him to h(sic) permanent post as Leading Fireman. Against the order an appeal was preferred to the Inspector General of Police, who is second respondent the Writ Petition, but in the appeal the order was confirmed.

The several grounds taken in the Writ Petition for reversing the order are that:

(1) According to the Rules of the Service force at the time of appointment, the prop(sic) authority to terminate the probation, if any, w(sic) the Inspector-General, and, therefore, the order by the Deputy Inspector-General of Police without jurisdiction;

(2) The appointment order having not f(sic)ed any probation, there can be no subsequent fixing and the petitioner, as full member of the service, could be reverted to the inferior ra(sic) of leading Fireman only after complying with the provisions of Art 311 (2), which has been done in the case;

(3) The Government having made no declaration under Fundamental Rule 30 specification prescribing probation as compulsory and the being also no special Rules when the petitioner was appointed, it is not open to the responded to prescribe a period of probation; and

(4) The effect of the order is to reduce (sic) petitioner in rank, which punishment is out all proportion to the several irregularities which, the petitioner had already been punish

The position taken by the Government in the rejoinder is that:

(1) The Deputy Inspector-General of Pol(sic) was the proper person to pass orders as (sic) Standing Order No. 7/50 dated 20-3-1950.

(2) The petitioner''s appointment was as probationer and probation period is express (sic) ovided for In R 6 of the Special Rules of the (sic)adras Fire Subordinate Services as two years, the time of his appointment there being also earlier and similar provision in Standing Order No. 19/49 dated 21-12-1949;

(3) Article 311 (2) of the Constitution does (sic)t apply to the case of a probationer, as every public servant is either employed on probation promoted on probation, and neither imply a (sic)ostantial or permanent order of appointment; (sic)d.

(4) The termination of probation in the particular case does not amount to reduction, and (sic)e appellant was given opportunity to render explanation for the proposed action.

Our learned brother, Satyanarayana (sic)ju J., has dismissed the Writ petition, having (sic)d the contention of the petitioner that he was (sic) required to undergo the period of probation be untenable. The reasons are that there (sic)e Rules in force at the time when he was ap(sic)nted as Sub-Officer requiring every person ap(sic)nted to a category to be on probation for a (sic)al period of two years from the date on which joined duty and he had been treated to his (sic)wledge as a probationer to which he has not subjected.

The learned Judge has further held that action in rank is not covered by Art. 311 (1) the order giving such punishment need not by the appointing authority. Our learned (sic)her has further held that the petitioner when (sic)rted to his permanent post, was not a full (sic)ber of the service in the cadre of sub-Officer, according to the rules he was called upon how cause against his probation being termed. and that the aforesaid rules do not re(sic)e the probationer to be given a further op(sic)unity of showing cause against the action (sic)osed to be taken against him.

The several grounds taken in the Memo(sic)um of appeal can be reduced to two main (sic)stions against the aforesaid judgment. The is that the appellant has been wrongfully to be a probationer, and the other is that assuming him to be so the provisions of 311 (2) apply, so that be should have got notices before he was reverted.

It appears to us that the plea concern(sic) the appellant''s rank being permanently of Sub-Officer, need not be determined in the appeal, if we were to hold that Art. 311 (2) is cable to cases of persons who are proba(sic)rs. It is conceded that the authorities could appropriate orders against the appellant as (sic)rmanent member or a probationer by lssu(sic)wo notices, and the main complaint is that as not been given such notices."

(sic)f Article 311 (2) of the Constitution be applicable to the probationers and two (sic)es be necessary the appellant becomes enti(sic)e these notices. A further adjudication of (sic)eing entitled to them as a permanent members, therefore, unnecessary. We would, how-state that having regard to the position appellant had taken when served with the (sic) of extension and also called upon to show it would have been difficult for him to get (sic) of Certiorari on the basis of being a per(sic)it Sub-Officer.

The grant of the Writ is discretionary and is (sic)lly not issued in favour of a person who (sic)ot maintained consistent position. There-he crucial question in the appeal is whe-Art.. 311 (2) applies to a probationer, and on that point there are authorities. The case of P. Venkateswararao Vs. State of Madras, decided that the information concerning removal of name from the list of candidates selected for the appointment as Sub-Magistrates was bad due to the absence of notice under Art. 311 (2).

It was further held therein that under the relevant rules a member of a service may be a probationer, an approved probationer, or a full member of that service, and a member can only be discharged before the.prescribed period of probation by the authority appointing him after giving him a reasonable opportunity for showing cause against an action proposed to be taken. The Constitutional position is stated at p. 594 (of Mad LJ): (at p. 1045 of AIR), to be as follows:

Under Art. 310 of the Constitution of India every member of a civil service of a State or who hold a civil post under a State holds office during the pleasure of the Governor. The Governor, therefore, can certainly remove the petitioner, but he can, only do so after complying with the provisions of Art. 311 of the Constitution.

The proposition that a dismissal of a civil servant who is a probationer must be after complying with the provisions of Art. 311 (2) is further supported by the decisions of other High Courts. In Gopi Kishore Prasad Vs. State of Bihar, it has been held that Art. 311 (2) applies to the case of a probationer and he is entitled under that Article to a second notice requiring him to show cause against the order of discharge from Government Service.

In the earlier case of M.A. Wahid v. State of Madhya Pradesh, ILR (1954) Nag 371: (AIR 1954 Nag 22) (B-l), the Nagpur High Court has held that the aforesaid Article applies to a probationer who is entitled to a second notice requiring him to show cause against the action to be taken. We also think the facts and decision in Jatindra Nath Biswas v. R. Gupta, 58 Cal WN 128: (AIR 1954 Cal 383) (C), do not support the argument that the termination of probation is not covered by Art. 311 (2).

The petitioner in the case was last serving as an officiating Sub-Inspector of Police at Kalna in the District Burdwan, to which he was promoted in 1946 from the rank of an Assistant Inspector of Police. Charges were framed against him for interpolating a seizure list and implicating a person in a criminal case by fabricating evidence. He was asked to show cause why he should not, be dismissed and the enquiry was carried on for nearly a year.

Ultimately he was found guilty and reverted to his substantive rank. The order was quashed on the ground that he was afforded no opportunity to show cause why the punishment indicted by that order should not be passed. The learned Government Pleader, however, relies on the following passage in the judgment.

In the case of a person officiating in a higher post, if he is reverted to his original post, in the normal course, (for example for inefficiency) there is no question of a punishment or penalty being imposed. But it is quite a different thing if he is degraded or reverted to his original rank as a punishment for having committed some offence, or for indiscipline, insubordination or misconduct. Such a reversion would act as a bar to future promotion, and must be treated as a "Reduction in Rank".

We find it difficult to accept the aforesaid dictum as laying down a correct test. It is clear that the removal of an officer does not disqualify him from being employed in future. It is equally clear that Art. 311 (2) covers orders of removal. And reasons for such inclusion are contained in the following observations of Das J., as he then was, in the ease of Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), .

There can be no doubt that removal - I am using the term synonymously with dismissal - generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do.

The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the Officer.

If chances of future employment do not preclude the application of Art. 311 (2) to the case of a public servant who has been removed, we fail to understand why chances of future promotion should bar its operation to the case of a probationer who is reverted. We think, a constitutional right of a public servant in certain conditions should not be circumscribed by what may happen to him in future. Therefore, the correct test for applying the Article should be whether the particular officer was being reverted on personal stigma of being deficient or blameworthy.

We have already mentioned some of the authorities, wherein dismissal or removal of a probationer is held to be covered by the Article.

These, therefore, do not accept the argument of the Article''s operation being confined to permanent civil servants. On the rejection of the argument, it follows that the reduction in rank of a probationer should also be governed by the aforesaid constitutional provision, if his reversion to the post of a lower rank be as punishment for misbehaviour.

We are, therefore, of the view that Art. 311 (2) applies to the case of a probationer in service where he is reverted on grounds of lack of ability.

The next question is whether the appellant should have been given two notices. There is no express requirement of such notices under the'' Article. But the stage at which Art. 311 (2) prescribes an opportunity to show cause against the action proposed, is when the Government has reached a tentative conclusion as to the punishment which would be appropriate.

There are earlier stages when the facts are being gone into, and the punishments then contemplated are of a hypothetical nature. Only when findings are reached and on the basis of those findings an action is proposed that Art. 311 (2) requires a notice. At that stage the Government are bound under Art. 311 (2) to issue a notice and give the officer charged an opportunity. These several stages thus afford two opportunities to the civil servant of showing cause. The first is when charges framed against him are enquired into. He then has the opportunity of entering into his defence to disprove the all gations. The second is against the project punishment after the enquiring authority h(sic) arrived at a definite conclusion on the charge The necessity for two notices arise out of the words "action proposed to be taken" in the Article.

These and similar words in S. 240 (3) of the Government of India Act, 1935, have been construed to mean action after tentative conclusion have been arrived at and the earlier notices under the Rules, therefore, do not satisfy the statutory requirement. The leading case is His AIR 1948 121 (Privy Council) . There the Judicial Committee construing the provisions of S. 240 (sic) of the Government of India Act, which are p(sic) materia to those in Art. 311, made the follows observation:

In the opinion of their Lordships, no actual is proposed within the meaning of the sub-section until a definite conclusion has been co to on the charges, and the actual punishment to follow is provisionally determined on. P(sic) to that stage, the charges are unproved and (sic) suggested punishments are merely hypothetic It is on that stage being reached that the astute gives the civil servant the opportunity which sub-section (3) makes provision.

Their Lordships would only add that t(sic) see no difficulty in the statutory opportune being reasonably afforded at more than stage. If the Civil Servant has been through enquiry under R. 55, it would not be reasons that he should ask for a repetition of that st(sic) if duly carried out, but that would not exha(sic) his statutory right, and he would still be enti(sic) to represent against the punishment proposed the result of the findings of the- enquiry.

The general proposition has been. stated by a Division Bench of this Court M.V. Joga Rao Vs. State of Madras words:

Except in the cases gov(sic)ed by the proviso to sub-cl. (2) of Art. 311, (sic) a servant cannot be dismissed or removed an authority subordinate to that by which was appointed and that he could be rem(sic) only after he has been given a reasonable opportunity of showing cause against the a(sic) proposed to be taken in regard to him.

The action proposed to be taken in re to a Civil servant will be known only after enquiry is held and after the authority con(sic)ed comes to a tentative conclusion on the m(sic). Though the enquiry have to be held in two stages, one up to time the authority comes to a conclusion or question of the offence committed by the servant and the other from the stage notice given to show cause against the action pro(sic) to be taken in regard to him, the entire case of the enquiry will have to be scruti(sic) by ascertaining whether reasonable opport(sic) is given to the servant to show cause ag(sic) the action proposed to be taken in rega(sic) him.

The notice of charges may be req(sic) by the Service Rules or by dictates of na(sic) justice, but the notice of "the proposed pu(sic)ment is a constitutional injunction, whose infringement is fatal. It has to be determine each case whether such a notice has been to the complainant. Admittedly, the application was given only one memorandum on 17-1-1954, Which runs as follows:

You are a probationary Sub-Officer from J2-10-50 and you were due to complete your probation on the afternoon of 21-10-52. During the probationary period of two years, you earned the following punishments for the delinquencies noted against each.

(1) Censure: On 11-3-1952, Gross Misconduct in unauthorisedly using Government Fire Tender for private use on 17-4-1951 and 19-4-1951.

(2) Censure: Failure to take action when a complaint is made by Fireman 171 that Fire ''Man 176 has assaulted him etc.

(3) Recovery from pay a sum of Rs. 29-11-0. Disobedience of Standing Order 7/49, D/- 11-2-1949 in using the paints to the vehicles.

As your work was thus not quite satisfactory your probation was extended by six months from 22-10-1952 in this office Memorandum Rc. No. 1667/B1/52 (2), dated 24-3-1953.

Even during the extended period of pro(sic)tion you were not careful enough and you (sic)arned the following punishments for the delin(sic)uencies noted against each:

Reprimand deferred for six months. For carelessness in the preparation of (sic)uarterly return of Government Property for he quarter ending 31-12-1952.

Reprimand: For failure to inspect the (sic)ater sources as per instructions contained in (sic)tanding Order No. 24/50 dated 11-7-1950.

(4) Thus your work and conduct during the (sic)robationary and the extended period are not (sic)tisfactory. Please show cause why your pro(sic)ation should not be ceased.

(5) Your representation if any should reach his office within 10 days from the date of re(sic)ipt of this Memorandum failing which it will (sic) considered that you have no representation to Jake and orders passed on its own merits. Any presentation made in this behalf will duly be (sic)nsidered.

(6) Please return a copy of this Memoran(sic)m with your dated acknowledgment immediate(sic).

He made his representation and re(sic)ved no other information except the order of (sic)-1954, whose relevant extracts are these:

The above record of his work indicates that showed no signs of improvement in his work (sic)spite the chances given to him to continue probation. The way he has conducted himself (sic) after the award of each punishment is anything but satisfactory and even the punishments (sic)erded to him did not bring forth the desired (sic)rovement in his work. His continued bad record'' of work clearly (sic)ves that he is not likely to turn out an effi(sic)t member of the Fire Service. He was there (sic) called on to show cause as to why his pro(sic)on should not be ceased. The Sub-Officer acknowledged the charge on (sic)-1954 and submitted his representation on (sic)1954. In his representation, he explains that offences committed are not so grave as to appellant severe punishments like, censures, re(sic)ry from pay etc.. and that the charges are in any way indication of insubordination in(sic)ement of discipline or far from morality. He has done nothing,,, outstanding during his (sic)ation and what little good work he has done (sic)utting out a fire in a ship I.N.S. Raja-(sic) ana, is not such as to outweigh the large (sic) 1958 Andh. Pra. D.F./18 number of grave delinquencies, of which he has been found guilty.

The probationary sub-Officer is therefore, obviously unfit to continue in the Department as Sub-Officer. I accordingly order the termination of his probation as Sub-Officer and revert him as Leading Fireman with effect from the date of communication of this order.

Obviously, the memorandum dated 11-1-1954, does not amount, to notice of action proposed after tentative conclusions of facts have been reached. The several statements in it concerning the appellant''s earlier conduct are, as the order of 8-2-1954, shows, in the nature of charges, and they alone do not comprise all the grounds on which the probation has been terminated.

For the dismissal order refers to a further ground of the appellant having done nothing outstanding.during his probation, which was never communicated to the appellant. There is thus in the case a failure of reasonable opportunity under Art. 311 (2), which is fata to the order terminating the appellant''s probation.

In these circumstances, we allow this appeal, set aside the impugned orders and this order will not preclude the Government from proceeding with the enquiry afresh according to law. The appeal is accordingly allowed with costs, which we fix at Rs. 100/-.