Union of India (UOI) vs Kalipada Das Gupta

Anil K. Sen, J.—This appeal under Clause 15 of the Letters Patent is by the Union of India and the other authorities directed against the judgment and order dated May 28, 1971, passed by our learned brother Anil Kumar Sinha J. in C.R. No. 702(W) of 1969 which was issued on a writ petition. The first Respondent obtained the above Rule disputing the two orders passed by the Union of India both dated February 25, 1969. By the first of the aforesaid orders the Appellant terminated the temporary appointment of the first Respondent as Deputy Director (Sericulture), Central Sericultural Research Station, Berhampore, with immediate effect and by the second he was posted as an Assistant Director (Technical), Central Sericultural Research Sub-station, Kalimpong.

Certain facts are not in dispute. The first Respondent was initially appointed as an Assistant Entomologist which post has since been redesignated as Junior Scientific Research Assistant. Later, on being selected he was appointed as Entomologist which post is now redesignated as Senior Scientific Research Assistant. He was, further, promoted to the post of an Assistant Director (Technical) in the said department and was posted at the Kalimpong Substation. While he was serving as Assistant Director (Technical) there arose a vacancy in the post of Deputy Director, Central Sericultural Research Centre, since the incumbent to that post had gone on deputation. An advertisement was issued for filling up the said post of Deputy Director and there is no dispute that the first Respondent was an Applicant for the said post. Through a process of selection he was selected for being appointed temporarily as a Deputy Director. The letter of appointment dated June 1, 1965, clearly recited that the first Respondent was being appointed as a Deputy Director on probation for a period of two years--the said period being liable to be extended or curtailed at the discretion of the appointing authority. There are other terms and conditions which are not necessary to be referred to for our present purposes. While the first Respondent was serving as a Deputy Director on probation he was confirmed in his substantive appointment as an Assistant Director on May 25, 1966. It is not in dispute that the probationary period of the first Respondent, while serving as the Deputy Director, was extended from time to time but ultimately by an order dated January 6, 1968, he was reverted to the post of Assistant Director as his services were considered unsatisfactory as the Deputy Director. He was served with an order of reversion dated June 6, 1968, the material part whereof is set out hereunder:

Shri P.K. Das Gupta, Deputy Director (Sericulture) in the Central Sericultural Research Station, Berhampore, is informed that his work during the probationary period has not been found satisfactory. It has, therefore, been decided to revert him to his substantive post of Assistant Director with immediate effect.

The first Respondent challenged the validity of the aforesaid order of reversion in this Court in a writ petition which was registered as C.R. No. 223(W) of 1968. The said application, however, was allowed and the Rule was made absolute by our learned brother B.C. Mitter J. on June 12, 1968. Our learned brother struck down the order on two- fold grounds. In the first place, our learned brother held that when the order of reversion itself specifies that the first Respondent''s service as a Deputy Director was found to be unsatisfactory such recital attached a stigma to make the reversion,, a punishment within the meaning of Article 311(2) of the Constitution and since such a punishment was imposed without complying with the other requirements of the said sub-Article it must be held to be an order not within the sanction of law. The second ground on which our learned brother set aside the order was to the effect that the first Respondent was appointed Deputy Director not on promotion but on recruitment and therefore, though it might have been open to the authorities to terminate such temporary appointment, the authorities could not have passed an order directing his reversion to the lower post. Accordingly, that order was set aside but though the order was set aside liberty was specifically reserved in favour of the authorities to the effect that order will not prevent or debar the authorities from taking any further or other action against the Petitioner according to law.

Once the said order was set aside by this Court the first Respondent was put back to the temporary post of Deputy Director and his probationary period was further extended till February 28, 1969. On February 25, 1969, however, the first Appellant passed the impugned orders. The first order is in the following terms:

The President is pleased to terminate the temporary appointment of Shri K.P. Das Gupta as Deputy Director (Sericulture), Central Sericultural Research Station, Berhampore, with immediate effect

and the second order again is on the following terms:

On the termination of his temporary appointment as Deputy Director, Central Sericultural Research Station, Berhampore, vide this Ministry''s Memo No. 57(4)/65-Tax(F) dated 25th February 1969, Shri K.P. Das Gupta is posted as Assistant Director (Tech.) Central Sericultural Research Sub-station, Kalimpong, vide Shri M.F. Nigam, Assistant Director, at the Sub-station transferred to the Central Sericultural Research Station. Berhampore, with immediate effect.

In the writ petition out of which the present appeal arises the first Respondent challenged the two orders as aforesaid on several grounds. In the first place it was claimed that the orders are Hot bona fide having been made at the instance of Director of Research, the Respondent No. 3 who had private malice as against the first Respondent. Secondly, it was claimed that the impugned orders in substance constitute reversion by way of punishment. It was claimed that though passed in a different form there was no difference between the orders impugned and the order that was previously set aside by this Court. Such an order of punishment having been made without any disciplinary proceeding it was claimed on behalf of the first Respondent that the orders were passed in violation of Article 311(2) of the Constitution.

The writ petition was contested by the present Appellants. An affidavit-in-opposition was filed by the Respondent No. 3 who specifically denied all allegations of malice made against him. It was claimed on behalf of the Respondent that the first Respondent failed to render satisfactory service while on probation and as such his probationary appointment was terminated in a bona fide manner The Appellant strongly disputed the claim of the first Respondent that the impugned orders constituted any penalty or that there was any violation of Article 311(2) of the Constitution which, according to the Appellants, could have no application in the present case. According to the Appellants, the first Respondent''s temporary appointment as Deputy Director having been terminated he had to be posted back as an Assistant Director since the first Respondent held a lien on the said post and he could not have been thrown out of employment altogether.

The writ petition having been taken up for disposal on the affidavits as aforesaid, but learned brother Sinha J. allowed the same and made the Rule absolute. He held that though this time the Appellants terminated the temporary appointment of the first Respondent yet they did so out of the same motive as on the previous occasion, namely; because or the unsuitability of the first Respondent but without complying With the requirements of Article 311(2) of the Constitution. He was of the view that an identical order as was set aside by the High Court on the earlier occasion Was again passed without complying with the mandatory requirements of the provisions of the constitutional safeguard embodied in Article 311(2) of the Constitution to render the order invalid. Strangely enough, in doing so he himself observed that in case of termination of employment motive operating in the mind of the appointing authority is not relevant.

With respect we are, however, unable to sustain this view. Without entering into the wider controversy as to whether the Court can go behind the order and find out the motive or not we are unable to agree with our learned brother that where a government servant put on probation proves himself unsuitable, termination of his probationary appointment because of such unsuitability would require compliance with Article 311(2) of the Constitution. Such termination is not a penalty and no disciplinary proceeding need be followed for making such an order. Otherwise there will be no sense in putting a person on probation or trial. In the case of The State of Bihar Vs. Gopi Kishore Prasad, the Supreme Court observed as early as in 1959:

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 other cause.

Sinha J., in our view, failed to appreciate the reason behind the earlier order of B.C. Mitter J. On the earlier occasion the earlier order was set aside not on the ground that the same had been passed out of a motive to revert the first Respondent on the ground of his unsuitability but because that order itself recited such unsuitability on its face and thus created a stigma rendering reversion a penalty. That was the reason why the order was set aside but at the same time the learned Judge, expressly gave liberty to the Appellants to take further action in accordance with law. It was never held on that occasion that if the first Respondent''s services as probationer had to be terminated on the ground of, unsuitability, it has to be done through a disciplinary proceeding. Mr. Chatterjee, learned Advocate for the Respondent, no doubt placed strong reliance on the other decision of the Supreme Court in the case of Sukhana Singh v. State of Punjab AIR 1972 S.C. 1711 in contending that the Court must go behind the order and find out whether termination of service of a probationer is really one by way of penalty or not, But, in our view, this decision would be of no help to the first Respondent because as we have said earlier even if we go, behind the order we merely find the fact that the service of the first Respondent was terminated on the ground of unsuitability while he was on probation and such a termination simpliciter never amounts to punishment.

Appearing on behalf of the first Respondent Mr. Chatterjee has raised a new point to support the order under appeal when he was confronted with the position that the judgment and order under appeal cannot be sustained on the ground on which it rests. Reliance is placed by Mr. Chatterjee on Rule 55 of the Central Civil Services (Classification, Control and Appeal) Rules, 1930, (hereinafter referred to as 1930 Rules) and it is contended that when the Appellants did not apprise the first Respondent of the grounds of the proposed termination and did not give him an opportunity to show cause the order as passed is clearly illegal being in violation of Rule 55B. This point, unfortunately, was never raised either in the pleading or at the trial before the learned Judge. Whether there was any prior compliance with the requirement of this Rule or not would require investigation into facts which cannot be made on the materials now before us since no such issue was earlier raised. But that apart it has been pointed out by Mr. Chakraborty, learned Advocate appearing on behalf of the Appellants, that this Rule is no longer in, force. Rule 55B is on the following terms:

Where it is proposed to terminate the employment of probationer whether during or at the, end of the probation for any specific fault or on account of his unsuitability for the service the probationer shall be apprised of the grounds of such proposal and give an opportunity to show cause against it, before orders are passed by the authority competent to terminate. The employment.

This Rule was not there in the 1930 Rules when the said Rules were framed. On Rule 49 of the 1930 Rules as originally framed discharge of a person appointed on probation never amounted to removal or dismissal within the meaning of Rule 49 which enumerated the penalties. Rule 49 was amended on October 10, 1947. Clause (a) of the explanation was amended to provide that termination of service of a probationer when made only on the grounds of want of vacancy failure to acquire prescribed special qualification or to pass prescribed test does not amount to removal or dismissal by way of penalty and an explanation was added by way of explanation (2) to the effect that the discharge of a probationer during or at the end of the period of probation for some specific fault of on account of his unsuitability for the service amounts to removal or dismissal within the meaning of this Rule. Thus by 1947 amendment termination of the service of a probationer on the ground of unsuitability was, rendered a penalty. The intention of the Rule makers, however was later changed and on March 28, 1948 the amendments of 1947 were deleted and again the termination of employment of a person appointed on probation during or at the end of probation in accordance with the terms of the appointment and the Rules governing probationary service was not to amount to removal or dismissal. It is in the background of the aforesaid amendments that Rule 55B was introduced on January 28, 1949 and the whole intention was not to treat such termination as a penalty but nonetheless give a protection by way of a show-cause notice and a representation before such an order of termination is made.

But 1930 Rules themselves were replaced by a new set of Rules framed under Article 309 read with Article 148(5) of the Constitution called the Central Civil Services (Classification, Control and Appeal) Rifles, 1957, (hereinafter referred to as 1957 Rules) and the latter again by the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Under both these latter Rules termination of the services of a probationer during or at the end of the period of his probation in accordance with the terms of his appointment or the Rules or Orders governing such probation is not a penalty. According to Mr. Chatterjee though 1930 Rules were replaced by 1957 Rules, all the provisions of 1930 Rules were not replaced and in any event Rule 55B was not repealed but continued to remain in force. This contention of Mr. Chatterjee has been strongly contested by Mr. Chakraborti appearing on behalf of the Appellants. A reference has to be made to the material part of Rule 34 of 1957 Rules which provides for such repeal and the material part runs as follows:

Repeal and savings--(1) The Civil Services (Classification Control and Appeal) Rules and the Rules contained in the notification of the Government of India in the Home Department No. F. 9-19/30 Ests. dated 27th February, 1932 and any notifications issued and orders made under any such Rules to the extent to which they apply to persons to whom these Rules apply and in so far as they relate to classification of Central Services specified in the Schedules except the General Central Services or confer powers to make appointments, impose penalties or entertain appeals are hereby repealed.

Mr. Chatterjee wants us to interpret this Rule "to hold that the qualifying words to the extent to which they apply to persons to whom these Rules apply and in so far as they relate to classification of Central Services specified in the Schedules except the General Central Services or confer powers to make appointments, impose penalties or entertain appeals" qualify all the three things which precede, namely, (i) Civil Services (Classification, Central and 1 Appeal) Rules, (ii) Rules incorporated in the Government of India Notification dated February 27, 1932 and (iii) Notifications issued and orders made thereunder. Rules incorporated in the aforesaid notification dated February 27, 1932, are parallel to Civil Services (Classification, Control and Appeal) Rules made applicable to subordinate services since renamed as Central Services classes (iii) and (iv). In our view, however, such a construction as suggested by Mr. Chatterjee would not be permissible on the syntax. It has been rightly pointed out by Mr. Chakraborti that after the words ''27.2.32'' there is a coma which separates the earlier part from the latter and the qualifying clause was obviously intended to govern latter part, namely notification and orders. There is another reason to support such a construction. If we for a moment accept the contention of Mr. Chatterjee and hold that 1930 Rules stood repealed Under Rule 34 of 1957 Rules only to the extent that the said Rules confer powers to make appointments, impose penalties or entertain appeals then those 1930 Rules must be held to be still surviving in all other respects as for example prescribing the nature of penalties and modes of imposition thereof, conferring rights of appeal and providing the mode of preferring such appeals and their disposal and similar other matters. But those matters are equally provided for by the new Rules of 1957 and it could not have been intended that the two sets of independent Rules would indiscriminately operate on the same field. In his argument before us Mr. Chatterjee suggested that the qualifying clause aforesaid could not have been intended to govern the words ''notifications issued and orders made'' since under the Rules earlier referred to there was no scope for issue of any notification or making of any order conferring powers to make appointment, impose penalties or entertain appeals. But on a careful reading of 1930 Rules it would, however, appear that Mr. Chatterjee is not right when he made such a suggestion. Rules 17, 18 and 19 of 1930 Rules provide for classification by issue of notification, Rules 34 and 38 speak of empowering of authorities obviously either by notification or orders to make first the appointment and similarly Rule 53 contemplates empowering of authorities to impose penalties. In this view we find no substance in the contention of Mr. Chatterjee that the aforesaid qualifying clause must be interpreted to cover not only the notification and orders but Rules that precede those words. On the other hand we feel no hesitation in accepting the contention of Mr. Chakravorti that Rule 35B stands repealed when 1930 Rules were repealed by Section 34 of 1957 Rules and that the first Respondent cannot claim any protection thereunder. In this view the point raised for the first time before us with reference to Rule 55B must be overruled.

Lastly, an attempt was made before us to sustain the order impugned in this appeal on behalf of the first Respondent on the ground that the impugned orders were passed mala fide. Unfortunately, there is no allegation of malice against the first Appellant who had made the order. On the other hand, the entire allegation of the first Respondent is that the order had been made at the instance of the Respondent No. 3 who bore private malice as against him. On the pleadings we are not satisfied that the first Respondent had been able to make out any case of private malice on the part of Respondent No. 3, the Director of Research. It is not in dispute that the said Respondent was the immediate superior authority to the first Respondent when he was serving as the Deputy Director. It is also not in dispute that adverse reports were made by the Director of Research on the assessment of the work of the first Respondent. The first Respondent''s own pleading goes to show that this Respondent No. 3 himself had recommended the appointment of the first Respondent as a Deputy Director. At that stage there was no malice and the pleadings of the first Respondent do not make out any ground for his further suggestion that later he developed malice as against him. Moreover, as against the adverse reports the first Respondent had ample opportunity to make his representation and certainly those reports were taken into consideration only in the light of the representation made. Be that as it may, when the order of termination was made neither by the Respondent No. 3 nor at his instance but on the independent assessment of still higher an authority, namely the Appellant No. 1, we are not in a position to accept this contention of the first Respondent, namely, that the order not being bona fide cannot be sustained. As a matter of fact this aspect appears not to have been pressed at all before the learned Judge in the trial Court.

On the conclusions as above, this appeal succeeds and is allowed. The judgment and order passed by our learned brother A.K. Sinha J. are set aside. The writ petition is dismissed. The parties are directed to bear their costs throughout. Whatever salary the first Respondent may have drawn as a Deputy Director pending this litigation would not be adjusted against his dues.

B.C. Ray, J.

I agree.