- Bookmark
- Share
- CaseIQ
Deep Kaur (Dr.) v. State Of Punjab
Structured Summary of the Opinion (D.K. Mahajan, J.)
Factual and Procedural Background
The appellant, Shrimati Deep Kaur, was appointed to the Punjab Civil Medical Service Class II (Women's Branch) on 15 January 1949 on probation for two years; that probationary period was extended by a further year. The Director, Health Services, Punjab proposed termination of her services by letter No. 227-G/S dated 14 February 1952, alleging unsatisfactory work and conduct; the appellant submitted an explanation dated 4 March 1952. On 15 April 1952 the Director wrote to the Civil Surgeon directing immediate termination in view of unsatisfactory reports. The appellant's services were terminated pursuant to that direction.
She made representations to the Government without success and filed Writ Petition C.W. No. 377/1957 in this Court, which was dismissed on 17 February 1958 on grounds of delay and availability of a remedy in a court of law. Thereafter she filed a suit on 14 June 1958 seeking a declaration that her termination was illegal and that she should be deemed still in service. The pleadings led to two issues being framed: (1) whether the suit was within time; and (2) whether the plaintiff was dismissed by an order dated 22 April 1952 and, if so, whether that dismissal was ultra vires, illegal and void.
The trial Court found issue (1) for the plaintiff but issue (2) against her and dismissed the suit. The District Judge affirmed both findings. A Regular Second Appeal to this Court failed, and the present appeal under Clause 10 of the Letters Patent challenges only the decision on issue (2). The appeal was heard by a Bench including D.K. Mahajan, J., whose opinion is reported here; Mehar Singh, C.J., concurred. The appeal was ultimately dismissed and the parties ordered to bear their own costs.
Legal Issues Presented
- Whether the appellant's services could only be terminated within the maximum probation period of three years under Rule 7 of the Punjab Civil Medical Service, Class II (Recruitment and Conditions of Service) Rules, 1943, and whether she stood automatically confirmed after three years thereby attracting the protections of Article 311 of the Constitution of India.
- Whether the termination order that dismissed the appellant on the ground of “unsatisfactory reports on her work and conduct” attached a stigma so as to invoke the protections of Article 311 (i.e., whether the termination was in substance a dismissal or amounted to punishment).
- Secondary factual/legal question discussed in the judgment: whether Rule 2.49 of the Punjab Civil Services Rules (definition and distinction between a “probationer” and a “person on probation”) makes the appellant a probationer appointed against a substantive vacancy, thereby bringing Rule 7 into operation.
Arguments of the Parties
Appellant's Arguments (as presented in the opinion)
- Under Rule 7 of the Punjab Civil Medical Service Rules (1943), the appellant's services could only be terminated within the maximum probation period of three years; after that period she would be automatically confirmed and could not be removed except by compliance with Article 311 of the Constitution.
- Alternatively, under Rule 2.49 of the Punjab Civil Services Rules (Volume 1, Part 1) the appellant should be treated as a probationer appointed against a substantive vacancy (and thus within Rule 7).
- The termination order describing “unsatisfactory reports on her work and conduct” attaches a stigma and therefore the protections of Article 311 are attracted; in the facts of this case the termination was in substance punishment.
The opinion does not set out detailed affirmative arguments advanced by the State Government beyond contesting the suit and defending the termination under the applicable service rules.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ranendra Chandra Banerjee v. Union of India, AIR 1963 SC 1552 | Principle that there can be no automatic confirmation in certain cases; the Supreme Court's view on automatic confirmation and the need for an express order of confirmation where appointment is not against a permanent vacancy. | The learned Judge relied upon this decision to hold, and the present Court accepted, that automatic confirmation is not available unless the probationer was appointed against a permanent vacancy; the case supports the conclusion that confirmation does not occur automatically in non-permanent/temporary/officiating appointments. |
| State of Orissa v. Ram Narayan Das, AIR 1961 SC 177 | Rule (R. 55-B Orissa / R. 9 Punjab) on termination of probationers and the principle that termination for unsatisfactory work, given the procedural conformity, does not necessarily impose a stigma or amount to dismissal attracting Article 311. | The Court treated the appellant's case as identical to Ram Narayan Das and held that the termination did not attract Article 311(2); the termination was held to have been made in accordance with rules governing probationers and not by way of punishment. |
| Dharam Singh v. State of Punjab, (AIR 1960 Punj 468) (67 Pun LR 312) | Authority supporting the contention that, in certain circumstances, a probationer may be automatically confirmed after the probation period. | The Division Bench decision was acknowledged as supporting the appellant's contention on automatic confirmation, but the Court observed the rule would only apply if Rule 7 were applicable; since all Courts below found no appointment against a permanent vacancy, Rule 7 was held not to apply in this case. |
| Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 | Enumerated types of “evil consequences” (e.g., forfeiture of pay, loss of seniority, impact on promotion prospects) which, if visited on a person by an order of termination, may indicate stigma attracting Article 311(2). | The Court invoked the principles in this case to explain that Article 311(2) is attracted only when the order of termination attaches a stigma or otherwise visits the person with the kinds of evil consequences described in Parshotam Lal Dhingra. |
| State of Punjab v. Apparapar Singh (L.P.A. 346 of 1965), (AIR 1967 Punj 139) | Consideration of the legal position of a person officiating in a higher rank and the consequences of termination in such contexts. | The Court stated this decision—recently decided by the same Court and to be reported—also lends support to the view that termination of an officiating/temporary appointment under the relevant rules does not necessarily attract Article 311; the decision was cited as corroborative authority. |
Court's Reasoning and Analysis
The Court engaged in a focused two-part legal analysis corresponding to the two principal contentions raised on issue No. (2).
First, on the contention of automatic confirmation under Rule 7 of the Medical Rules: the Court examined the textual scope of Rule 7 and its explanatory note. It emphasized that Rule 7 is applicable primarily to persons appointed against permanent/substantive vacancies. The Court noted that the record contained no allegation or proof that the appellant was appointed against a permanent vacancy; all Courts below had so found. The Court relied on the explanation to Rule 7(1), which states that officiating service is to be reckoned as period on probation but that a person officiating is not entitled to confirmation on completion of probation until appointed to a permanent vacancy. The Court further noted that Rule 7(4) expressly excludes officiating and temporary hands from the mandatory three-year maximum probation limitation; in such cases the probation period may be extended beyond three years. On this basis, and with reference to Supreme Court authority (Ranendra Chandra Banerjee), the Court concluded that automatic confirmation was not available to the appellant.
Second, on the contention that the order of termination attached a stigma and therefore required compliance with Article 311: the Court relied principally on the Supreme Court's decision in State of Orissa v. Ram Narayan Das. It compared the factual and legal posture of the present case with that precedent, noting that where a probationer is discharged in accordance with a rule such as R. 9 (Punjab) there is no necessary “evil consequence” or indelible stigma (for example, forfeiture of pay, loss of seniority, or impact on promotion prospects) that would convert the discharge into a dismissal invoking Article 311 protections. The Court observed that the mere use of the word “discharge” or the fact that employment is terminated does not, by itself, constitute dismissal with stigma; whether stigma is attached depends on the nature of the enquiry, the proceedings, and the substance of the final order. Applying Ram Narayan Das and the principles set out in Parshotam Lal Dhingra, the Court concluded that the appellant's termination was effected in accordance with the governing rules for probationers/temporary employees and did not amount to punishment nor did it attach the kind of stigma that would trigger Article 311(2).
The Court additionally rejected the appellant's reliance on Rule 2.49 (the definition distinguishing “probationer” and “person on probation”) because there was nothing on record to indicate that the appellant was appointed as a probationer in the sense of holding a substantive vacancy; rather the record indicated she was “on probation” (i.e., not substantively appointed).
The Court also noted the general principle that appointing authorities have discretion to terminate officiating or temporary appointments under the terms of such appointments, and that Article 311 protections attach only where an individual has a substantive right to a post or where termination visits the person with the specified “evil consequences.”
Holding and Implications
Holding: APPEAL DISMISSED.
Implications:
- The dismissal/termination of the appellant's services was upheld; the termination order stands as valid and effective.
- The Court held that Rule 7 of the Medical Rules did not apply to the appellant because she was not shown to have been appointed against a permanent/substantive vacancy; therefore automatic confirmation after three years was not available to her.
- The Court held that the termination did not attach the kind of “stigma” or produce the “evil consequences” contemplated by the authorities that would invoke Article 311(2) of the Constitution; accordingly Article 311 protections were not required in this case.
- The parties were ordered to bear their own costs.
- No new legal principle or departure from existing precedents was announced; the decision applies established authorities (as cited) to the facts and upholds the validity of termination of a probationary/officiating appointment carried out in conformity with the applicable rules.
Disposition recorded in the opinion: Appeal dismissed. Mehar Singh, C.J., concurred.
D.K Mahajan, J.:— This is an appeal under Cl. 10 of the Letters Patent and is directed against the decision of a learned Single Judge of this Court affirming, on appeal, the decision of the lower appellate Court.
2. So far as the facts are concerned, there is no dispute. The appellant, Shrimati Deep Kaur, was appointed in the Punjab Civil Medical Service Class II (Women's Branch) on 15th January, 1949 on probation for a period of two years. But this period was extended by another year. Her services were proposed to be terminated by the Director, Health Services, Punjab, vide letter No. 227-G/S dated the 14th of February, 1952 (Copy Exhibit P. 3.A). In this letter, it was pointed out that during the period she had been in the P.C.M.S Class II (Women's Branch), her work and conduct has not been satisfactory and various instances of that were stated. It was further stated that she was not considered to be a fit person for retention in service. She was asked to show cause why her services should not be terminated. An explanation dated the 4th March, 1952 (Copy Exhibit DW-1/5/A) was submitted by her. On 15th April, 1952, the Director, Health Services, Punjab sent a letter (Exhibit P. 4.A) to Dr. Moti Singh, Civil Surgeon, Dharam sain, under whom the appellant was then working. This letter is as follows:—
“Subject:— Complaint against Dr. Dip Kaur P.C.M.S, Women Assistant Surgeon-in-charge, Women Section, Civil Hospital, Dharma-sala. Reference; correspondence ending with your endorsement No. 3238 dated 14-3-1952 on the subject noted above.
In view of the unsatisfactory reports on the work and conduct of Dr. Dip Kaur, P.C.M.S, Woman Assistant Surgeon-in-charge, Women Section, Civil Hospital, Dharamasala, Government have decided that she should not be retained in service. Her services should, therefore, be terminated immediately under advice to this office. Receipt of this letter may kindly be acknowledged.”
3. The appellant's services were terminated in pursuance of this letter. She made a number of representations to the Government with no effect. Thereafter, she filed a Writ petition (C.W No. 377/1957) in this Court. This petition was dismissed on 17th February, 1958 on two grounds—
(1) that the petition was very much delayed; and
(2) that it was open to her to seek her remedy in a Court of law.
4. This led to the suit out of which the present appeal has arisen. The suit was filed on the 14th June, 1958 for a declaration that the termination of her services was illegal, ineffective and not binding on her and that she be deemed to be still in service. The suit was contested by the State Government. On the pleadings of the parties, the following issues were framed:—
“(1) Is the suit within time?
(2) Whether the plaintiff was dismissed vide order dated the 22nd April, 1952? If so, whether it is ultra vires, illegal and void?”
5. The trial Court decided issue No. (1) in favour of the plaintiff and issue No. (2) against her; with the result that her suit was dismissed. She filed an appeal against the decision of the trial Court to the District Judge and the learned District Judge affirmed the finding of the trial Court on both the issues and rejected her appeal. Against this decision, she preferred Regular Second Appeal No. 1410 of 1960 to this Court which also failed and against which the present appeal under Clause 10 of the Letters Patent has been filed before us. The decision only on issue No. (2) has been challenged.
6. On issue No. (2), two contentions were advanced before the learned Single Judge, namely:
(1) that according to Rule 7 of the Punjab Civil Medical Service, Class II (Recruitment and Conditions of Service) Rules, 1943 (hereinafter referred to as the Medical Rides), the appellant's services could only be terminated within the period of three years, the maximum period of probation provided therein. After the expiry of the period of three years, the appellant stood automatically confirmed and her services could not be terminated without complying with the provisions of Article 311 of the Constitution of India:
(2) that the order terminating the services of the appellant ‘in view of the unsatisfactory reports on her work and conduct’ attaches a stigma and, therefore, the provisions of Article 311 of the Constitution of India are attracted.
7. Both these contentions were rejected by the learned Single Judge. On the first contention, lie learned Judge took the view that Rule 7 of the Medical Rules did not apply to the appellant because there was no allegation, much less proof, that the petitioner was appointed against a permanent vacancy. Even on the assumption, that the appellant was appointed against a permanent vacancy, the learned Judge took the view feat there could be no automatic confirmation; and in support of this finding, the learned Judge relied upon the decision of the Supreme Court in Ranendra Chandra Banerjee v. Union of India, AIR 1963 SC 1552.
8. Another contention advanced by the learned counsel for the appellant before the learned Single Judge, that according to Rule 2.49 of the Punjab Civil Services Roles, Volume 1, Part 1, the appellant must be treated as having been appointed against a permanent vacancy, was negatived with the following observations:
Mr. Gujral, however, relied on Rule 2.49 of the Punjab Civil Services Rules, Volume 1, Part 1, according to which a probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre or a department, and he, therefore, argued that Rule 7 would be applicable to the plaintiff's case. Note 3 to this rule, however, makes a distinction between a ‘probationer’ and a ‘person on probation’, and it states that while a probationer is one appointed in or against a post sub-stantively vacant “with definite conditions of probation, a person on probation is one appointed to a post (not necessarily vacant sub-stantively) for determining his fitness for eventual substantive appointment to that post. There is nothing on the record to indicate that the plaintiff was not placed ‘on probation’ but was a probationer’ and hence Mr. Gujral's argument falls to the ground.
9. The second contention was also negatived by the learned Single Judge on the short ground that the termination of the services of the petitioner fell strictly within the rule laid down by Supreme Court of India in State of Orissa v. Ram Narayan Das, AIR 1961 SC 177. The order terminating the services was passed strictly in accordance with the rules governing the petitioner and not by way of punishment.
10. Mr. Gujral, learned counsel for the appellant, has reiterated all the contentions that were raised by him before the learned Singla Judge. He further contends that, on the facts of me present case, the conclusion was irresistible that the termination of the services of the petitioner was by way of punishment.
11. I will, in the first instance, take up the argument of Mr. Gujral that the petitioner stood automatically confirmed after the expiry of the period of three years. In support of his contention, Mr. Gujral relies upon the Division Bench decision of this Court in Dharam Singh v. State of Punjab, (1985) 67 Pun LR 312 : (AIR 1960 Punj 468). This decision certainly supports his contention. We are also told that an appeal against this decision is pending in the Supreme Court. But this question would only arise if Rule 7 of the Medical Rules is applicable to the appellant. That rule would only be applicable, as its technology indicates, to a person who has been appointed against a permanent vacancy. All the Courts below have come to a concurrent decision that there is no allegation, much less proof, that the appellant was appointed against a permanent vacancy. Therefore, Rule 7 will not apply. The explanation to Rule 7(1) also leads to the same conclusion. The explanation is in the following terms—
“xxxxxx
Explanation:— Officiating service shall be reckoned as period spent on probation, but no member of the Service, who is officiating in any appointment shall on the completion of his period of probation be entitled to be confirmed until he is appointed against a permanent vacancy.
xxxxxx
12. If at all, it is only a person, who is appointed against a permanent vacancy, who, after me completion of the period of probation, would get automatically confirmed. As is clear finding or all the Courts below, that the appellant was not officiating against a permanent vacancy, R. 7 will not apply. So far as officiating and temporary hands are concerned, Rule 7(4) of the Medical Rules exclude their cases from the mandatory provision that, in no case, the period of probation can exceed three years. In the case of such persons, the period of probation could even be extended beyond the period of three years. Thus the argument of automatic confirmation is not available to the appellant under Rule 7. Barring a case of automatic confirmation, the rule in other cases is that till an order of confirmation is passed, the person on probation or whose appointment is temporary, does not get confirmed automatically. See in this connection the decision of the Supreme Court in AIR 1963 SC 1552.
13. So far as the question, that the order of termination attaches a stigma to the appellant, is concerned, the matter seems to be concluded by the decision of the Supreme Court in AIR 1961 SC 177. In that case, a similar rule (rule 55-B) of the Civil Services (Classification, Control and Appeal) Rules, as governs the appellant in the present case, namely, Rule 9 of the Civil Services (Punishment and Appeal) Rules, 1952 fell for consideration. Both these rules are quoted side by side for facility of reference:—
R. 55-B (Orissa) R. 9 (Punjab) “Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of 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 given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment.” x x x “Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of the unsatisfactory record or unfavourable reports implying the unsuitability for the service, the probationer shall be apprised of the grounds of such proposal, and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the appointment.”
14. In Ram Narayan Das's case, AIR 1961 SC 177 a notice was served on him calling upon him to show cause why he should not be discharged from service for ‘gross neglect of duty and unsatisfactory work’. In the notice, ten instances of neglect of duty and two instances of misconduct-acceptance of illegal gratification and fabrication of public records were set out. After considering Ram Narayan Dass, AIR 1961 SC 177 reply, the Government terminated his services. It may be mentioned that Ram Narayan Das was a probationer. The order of termination was challenged by him under Article 226 of the Constitution of India in the Orissa High Court. His petition was granted and it was held that the order of discharge amounted to imposing punishment because the respondent had been visited with evil consequences leaving an indelible stigma on him effecting his future career. Against this decision, an appeal was taken to the Supreme Court and their Lordships of the Supreme Court set aside this decision and held as follows
The respondent had no right to the post held by him. Under the terms of his employment, the respondent could be discharged in the manner provided by R. 55-B. Again mere termination of employment does not carry with it ‘any evil consequences’, such as, forfeiture of his pay or allowances, loss of his seniority, stoppage or postponement of his future chances of promotion, etc. It is then difficult to appreciate what indelible stigma affecting the future career’ of the respondent was cast on him by the order discharging him from employment for unsatisfactory work and conduct. The use of the expression ‘discharge’ in the order terminating employment of a public servant is not decisive: it may, in certain cases, amount to dismissal. If a confirmed public servant holding a substantive post is discharged, the order would amount to dismissal or removal from service; but an order discharging a temporary public servant may or may not amount to dismissal. Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry.”
15. The appellant's case is absolutely identical with Ram Narayan Das's case, AIR 1961 SC 177 and in view or the decision in that case, the only view possible is that the appellant's discharge from service did not attract the provisions of Article 311(2) of the Constitution of India. Therefore, the contention of Mr. Gujral, that the order of discharge is illegal because it attaches a stigma to the appellant and permanently impairs her chances of fresh appointment, cannot be accepted. The case of The State of Punjab v. Apparapar Singh (L.P.A 346 of 1965) Reported in (AIR 1967 Punj 139) decided by us and in which the decision has to be announced tomorrow also lends full support to what has been stated above. In this case, the entire legal position of a person officiating in a higher rank was considered and what has been said by us in that case also applies with equal force to the case of the appellant.
16. This leaves the last contention of the learned counsel that on the facts of this case, the order of termination was passed by way of punishment. This contention is totally devoid of force. No material has been placed before us on the basis of which any reasonable conclusion could be drawn that the appellant was discharged from service by way of punishment. If the contention of the learned counsel is accepted, every order of discharge per se would amount to dismissal. But this is not the true legal position. Facts have to be proved in order to show that a particular order of discharge amounts to dismissal. It goes without saying that the appointing authority has the absolute discretion to terminate the services of an officiating hand or of a temporary employee. That is inherent in the terms of appointment. It is only when a person has a right to a post and his services are terminated that the provisions of Article oil of the Constitution will at once come into play. So far as an officiating or a temporary hand is concerned, Article 311(2) will only be attracted if the order of termination attaches a stigma or otherwise visits the person concerned with evil eonsequences, as are enumerated in Parshotam Lal Dhingra v. Union Of India, AIR 1958 SC 36. Therefore, the last contention of the learned counsel must be rejected. For the reasons recorded above, we see no force in this appeal and reject the same leaving the parties to bear their own costs.
17. Mehar Singh, C.J:— I agree.
BK/VSD/G.G.M
18. Appeal dismissed.
Alert