Patna High Court
Awadhesh Kumar vs The State Of Bihar on 10 February, 1961
Equivalent citations: AIR1961PAT339, AIR 1961 PATNA 339
Author: V. Ramaswami
Bench: V. Ramaswami
ORDER
1. In this case the petitioner Awadhesh Kumar was appointed on probation as an upper division clerk by the Deputy Commissioner of Singhbhum on the 10th of January, 1956. Paragraph 3 of the letter of appointment, which is Annexure B to the application, stated that "The candidates appointed are liable to be discharged if they failed to pass the final examination in accounts prescribed by the Board of Revenue within two years from the date of their appointment".
Paragraph 3 also stated that "their services may also be terminated at any time within this period without notice and without assigning any reason".
It appears that the petitioner passed the examination in accounts within the stipulated period of two years. The petitioner also passed the departmental examination on the 9th of March, 1959. The petitioner was promoted to officiate in the post of Selection Grade II, and in that capacity he was appointed as the Head Clerk of the Majhgaon Community Development Block. On the 19th of August, 1959, the petitioner was suddenly placed under suspension under the order of the Deputy Commissioner of Singhbhum, which is Annexure D to the application and reads as follows :
"Sri Awadhesh, Kumar, H. C. You are hereby ordered to make over charge of your duties to Sr. Maghi as the Deputy Commissioner has been pleased to place you under suspension with effect from today- You are also directed to proceed to Chaibasa positively by today as your Hq. during your suspension period will be Chaibasa. Sd. F. Lakra.
19-8-1959.
Block Development Officer Majhagaon (Singhbhum) Sd. Ramachandra Majhi Sd. Bhola Pd.
11.9"
On the 8th of September, 1959, the petitioner made an application to the Deputy Commissioner of Singhbum requesting that he may be apprised of the charges levelled against him so that he might offer an explanation. This petition is Annexure E. But on the same date the Deputy Commissioner of Singhbhum discharged the petitioner from service without assigning any reason. The order of discharge is Annexure F to the application and reads as follows:
"The Deputy Commissioner, Singhbhum, has been pleased to discharge you from service and to terminate your appointment as temporary Upper Division clerk of this office with effect from the date of your suspension viz. the 19th August, 1959. Sd. Illeg.
8-9-1959.
Establishment Deputy Collector, Chaibasa."
The petitioner has now obtained a rule from the High Court calling upon the respondents to show cause why the order of discharge dated the 8th of September, 1959, made by the Deputy Commissioner of Singhbhum should not be set aside by grant of a writ in the nature of certiorari under Article 226 of the Constitution. Cause has been shown by the learned Government Pleader on behalf of the respondent to whom notice of the rule was ordered to be given.
2. On behalf of the petitioner the contention put forward is that the discharge of the petitioner without making any enquiry was a violation of Article 311 of the Constitution and the order of discharge dated the 8th of September, 1959, was ultra vires and illegal. We do not think there is any merit in this contention. It was, held by the Supreme Court in Parshotam Lal Dhingra v. Union of India, 1938 SCR 828 : (AIR 1958 SC 36), that the 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 remove him from service.
The proposition laid down in Dhingra's case, 1958 SCR 828 : (AIR 1958 SC 36), has, however, been qualified by the Supreme Court in a later case, State of Bihar v. Gopi Kishore Prasad, 1960 BLJR 220 : (AIR 1960 SC 689). In that case it was pointed out by the Supreme Court that if a probationer is discharged on the ground of alleged misconduct or inefficiency or for some similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will be tantamount to a removal from service within the meaning of Article 311 (2) of the Constitution, and will, therefore, be liable to be struck down.
In a still later case State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, the Supreme Court has observed that an order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification may appropriately be regarded as one by way of punishment, but an order of discharge of a probationer following upon any enquiry to ascertain whether he was fit to be confirmed is not of that nature, and to such a case Article 311 (2) has no application. The present case is governed by the principle laid down in Dhingra's case, 1958 SCR 828 : (AIR 1958 SC 36), because no enquiry whatever was held on any charge of negligence, misconduct or inefficiency of the petitioner, and the principle laid down in Gopi Kishore Prasad's case, 1960 BLJR 220 : (AIR 1960 SC 689), cannot be applied to the present case.
3. But even if the provisions of Article 311 (2) of the Constitution do not apply to this case, the question still remains whether there is a violation of the legal provisions regulating the procedure for the discharge of a probationer. In our opinion, the order of discharge passed by the Deputy Commissioner of Chaibasa dated the 8th of September, 1959, is ultra vires and illegal because the statutory requirements for discharge of the petitioner have not been complied with Rule 2 and Explanation I of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935, reads as follows :
"2. The following penalties may, for good and sufficient reasons, be imposed upon any member of a Subordinate Service, viz :
(i) Censure.
(ii) Withholding of increments or promotion, including stoppage at an efficiency bar.
(iii) Reduction to a lower post or time-scale or to a lower stage in a time-scale.
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order.
(v) Fine. (vi) Suspension. (vii) Removal from the Civil Service of the Crown does not disqualify from future employment. (viii) Dismissal from the Civil Service of the Crown which ordinarily disqualifies from future employment.
Provided that the penalty of fine shall be imposed only on menial and inferior servants.
Explanation I -- The Discharge -
(a) of a person appointed on probation, during or at the end of the period of probation, on grounds arising out of the specific conditions laid down by the appointing authority, e.g., want of a vacancy, failure to acquire prescribed special qualification or to pass prescribed test.
(b) of a person appointed, otherwise than under contract, to hold a temporary appointment, on the expiration of the period of the appointment,
(c) of a person engaged under contract, in accordance with the terms of his contact, does not amount to removal or dismissal within the meaning of this rule.
Note I. -- For the procedure to be followed before an order of dismissal, removal or election can be passed, see Rule 55 of the Civil Services (Classifications, Control and Appeal) Rules. In drawing up proceedings and conducting departmental enquiries, the instructions contained in Rules 166 to 171 of the Bihar Board's Miscellaneous Rules, 1955, are to be followed, except where more detailed instructions have been framed by the department concerned".
But Explanation II states that "The discharge of a probationer, whether during or at the end of the period of probation, for some specific fault or on account of the unsuitability for the service, amounts to removal or dismissal within the meaning of the rule".
Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, however, makes the provision that the full procedure prescribed in that rule need not be followed in the case of a probationer discharged in the circumstances described in Explanation II to Rule 2 of the Subordinate Services Discipline and Appeal Rules, 1935, or the corresponding provisions in the Civil Services (Classification, Control and Appeal) Rules.
In such cases it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the ground on which it is proposed to discharge him and his reply against the discharge duly considered before orders are passed. It is admitted in this case that the petitioner was not even apprised of the reason why he was proposed to be discharged by the Deputy Commissioner of Singhbhum.
In our opinion the procedural safeguard provided by the statutory rule is mandatory in character and since there has been a violation of the mandatory procedural safeguard in this case the order of discharge made by the Deputy Commissioner of Singhbhum dated the 8th of September, 1959, must be held to be ultra vires and illegal and without jurisdiction. For these reasons we hold that this application must be allowed and a writ in the nature of certiorari under Article 226 of the Constitution must be granted for quashing the order of the Deputy Commissioner of Singhbhum dated the 8th of September, 1959, discharging the petitioner from the service.
4. We accordingly allow this application. There will be no order as to costs.