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High Court Of Judicature At Patna v. Pandey Madan Mohan Prasad Sinha And Others
Factual and Procedural Background
Respondent 1 was appointed as a Munsif on 15-03-1974 on a two-year probation. Over the following years the Patna High Court repeatedly reviewed his record but declined to confirm him, despite favourable recommendations from certain District Judges. On 19-06-1985 the High Court resolved to advise the State Government that his temporary services were no longer required and that they should be terminated. The State sought the grounds for this recommendation, whereupon the High Court forwarded adverse entries from his service record on 05-03-1986 and simultaneously communicated those remarks to Respondent 1.
An order dated 29-08-1986 terminated Respondent 1’s services. His representation against the adverse remarks, dated 28-08-1986, was rejected on 15-09-1986. He then filed CWJC No. 2046 of 1987 in the Patna High Court, which on 22-10-1990 set aside the termination on two grounds: (i) the adverse remarks had not been communicated before the 19-06-1985 decision, and (ii) the order was punitive, attracting Article 311(2) of the Constitution. The present appeal by special leave challenges that High Court judgment.
Legal Issues Presented
- Whether the High Court’s failure to communicate certain adverse remarks to Respondent 1 before deciding on 19-06-1985 to terminate his services vitiated the termination order.
- Whether the termination order dated 29-08-1986 was a punitive dismissal attracting the procedural safeguards of Article 311(2) of the Constitution of India.
Arguments of the Parties
Appellant’s Arguments (High Court)
- Respondent 1 was a probationer with no right to hold the post; therefore, there was no obligation to communicate adverse remarks before relying on them.
- Uncommunicated adverse remarks can legitimately inform a decision on suitability for confirmation.
- The impugned order is a discharge simpliciter containing no stigma and was not passed by way of punishment; hence Article 311(2) is inapplicable.
Respondent 1’s Arguments
- Non-communication of adverse remarks before the decision of 19-06-1985 violated natural justice and invalidated the termination.
- The termination was in substance a punitive removal founded on allegations regarding integrity, character and morality, thus requiring compliance with Article 311(2).
- Relied on correspondence dated 05-03-1986 and precedents such as State of U.P. v. Mohd. Waqar Hussain and Anoop Jaiswal v. Government of India to support the above contentions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. M.E. Reddy (1980) 2 SCC 15 | Failure to communicate adverse remarks does not vitiate an order of compulsory retirement. | Invoked to show that, a fortiori, non-communication to a probationer does not invalidate termination based on overall assessment. |
| Baikuntha Nath Das v. Chief Distt. Medical Officer (1992) 2 SCC 299 | Uncommunicated adverse entries may be considered when assessing suitability for retention in service. | Cited to support the view that such entries could be used against Respondent 1 without prior disclosure. |
| State of U.P. v. Mohd. Waqar Hussain 1995 Supp (3) SCC 669 | Consideration of uncommunicated adverse entries in selection decisions. | Court held the case unhelpful to Respondent 1 because there was no indication that the decision there was based on those entries. |
| Ranendra Chandra Banerjee v. Union of India AIR 1963 SC 1552 | Under Rule 55-B (Civil Services Rules 1930), a probationer must be told the grounds for proposed termination. | Distinguished on the ground that no analogous rule exists for Munsifs; hence the requirement does not apply. |
| Anoop Jaiswal v. Government of India (1984) 2 SCC 369 | If misconduct is the foundation of an order, the order is punitive and Article 311(2) applies. | Distinguished; the present termination was based on overall unsuitability, not a specific misconduct charge. |
Court's Reasoning and Analysis
The Supreme Court emphasised the settled law that a probationer enjoys no right to hold the post. Consequently, principles of natural justice requiring prior communication of adverse material do not apply when deciding on his confirmation or termination. The Court observed that:
- Some adverse remarks (1976-77 and 1979-80) had in fact been communicated, and the remaining remarks, though later communicated, could still legitimately underpin the earlier decision of 19-06-1985.
- Non-communication therefore did not render the decision arbitrary or capricious.
- The termination order was a discharge simpliciter, devoid of stigma. References in the 05-03-1986 letter to complaints about integrity and behaviour were used only to evaluate overall performance during probation, not as the foundation for punitive action.
- Precedents relied upon by Respondent 1 were either distinguishable or inapplicable, while those cited by the appellant supported the proposition that uncommunicated adverse entries may be considered.
Holding and Implications
Appeal Allowed; High Court judgment dated 22-10-1990 set aside; Respondent 1’s writ petition dismissed; no order as to costs.
Immediate consequence: Respondent 1’s termination stands restored. Broader implication: the decision re-affirms that (i) probationers are not entitled to prior communication of adverse entries, and (ii) termination for overall unsuitability, even when adverse remarks reference conduct, remains non-punitive unless a specific act of misconduct is the foundation of the order. No new legal doctrine was created, but existing principles regarding probationers’ rights were clarified and applied.
Order
1. This appeal by special leave is directed against the judgment of the Patna High Court dated 22-10-1990 whereby the High Court has allowed the writ petition (CWJC No. 2046 of 1987) filed by Respondent 1 challenging the validity of the order dated 29-8-1986 terminating his services.
2. Respondent 1 was appointed as Munsif by order dated 15-3-1974. The said appointment was on probation for a period of two years. The matter of confirmation of Respondent 1 was considered by the High Court on a number of occasions from time to time but he was not found fit for confirmation even though recommendations had been made by the District Judges concerned for his confirmation. On 19-6-1985 after considering the matter of confirmation of Respondent 1 and finding that he was not fit for confirmation, the High Court decided that a recommendation be made to the State Government that the temporary services of Respondent 1 as Munsif are no longer required and that his services should be terminated. The said decision of the High Court was communicated to the State Government by letter dated 5-8-1985. A communication was also sent to the District Judge, Hazaribagh to withdraw all cases from the court of Respondent 1 and that he should not be given any judicial work. A communication dated 2-9-1985 was received from State Government whereby the State Government requested that the grounds for termination of the services of Respondent 1 may be furnished. The Standing Committee of the High Court in its meeting held on 4-12-1985 decided that the adverse materials in the service record of Respondent 1 should be communicated to the State Government and in pursuance of the said decision the said material was communicated to the State Government by letter dated 5-3-1986. It was also decided to communicate the said adverse material to Respondent 1 and in pursuance of the said decision, the adverse remarks in the service record of Respondent 1 were communicated to him by the District Judge, Hazaribagh. Thereafter, the order dated 29-8-1986 was passed whereby the services of Respondent 1 were terminated. It appears that Respondent 1 submitted a representation dated 28-8-1986, against the adverse remarks. The said representation was considered by the Standing Committee of the High Court on 15-9-1986, and was rejected. Respondent 1 thereupon filed the writ petition in the High Court which has given rise to this appeal.
3. Before the High Court a number of contentions were raised by Respondent 1 but the writ petition of Respondent 1 has been allowed by the High Court on two grounds, namely,
(1) the adverse remarks in the confidential reports of Respondent 1 were communicated to him after the High Court had taken the decision on 19-6-1985 for termination of services of Respondent 1 and the said non-communication of the adverse remarks prior to the High Court taking the said decision vitiates the order for termination of services of Respondent 1; and
(2) the order for termination of services of Respondent 1 was passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution of India. Hence this appeal by the High Court.
4. Shri Gopal Subramanium, the learned Senior Counsel appearing for the appellant, has assailed the findings recorded by the High Court on both these grounds. The learned counsel has submitted that since Respondent 1 was only a probationer, he had no right to hold the post and it was not necessary to communicate the adverse remarks in his confidential reports. According to the learned counsel the uncommunicated adverse remarks could legitimately form the basis for the High Court to come to a decision whether Respondent 1 was fit for being confirmed on the post of Munsif or not. It has been urged that the status of a probationer, who has no right to hold the post, cannot be equated with that of a confirmed employee having a right to hold the post and since Respondent 1, being a probationer, did not have the right to hold the post, he could not claim that the adverse material in his confidential record should have been communicated to him and, unless communicated, it could not be taken into account by the High Court for the purposes of deciding whether Respondent 1 should be confirmed on the post of Munsif or not. The learned counsel has contended that having regard to the adverse remarks in the confidential reports of Respondent 1 the High Court was justified in taking the view that Respondent 1 was not suitable for confirmation on the post of Munsif and it could not be said that the decision of the High Court that Respondent 1 is not fit for confirmation is arbitrary or capricious. It has also been urged by the learned counsel that the order for termination of services is an order of discharge simpliciter which does not contain any stigma and the High Court was in error in holding that the said order was passed by way of punishment for misconduct.
5. Shri Pramod Swarup, the learned counsel appearing for Respondent 1, has supported the judgment of the High Court and has urged that it was obligatory on the part of the High Court to have communicated the adverse remarks in the confidential reports of Respondent 1 and that the failure to do so invalidates the decision of the High Court regarding termination of services of Respondent 1. Shri Swarup has also submitted that the termination of services of Respondent 1 under the order dated 29-8-1986 is in substance an order of removal by way of punishment for misconduct. In this connection Shri Swarup has invited our attention to the letter dated 5-3-1986, from the Registrar of the High Court to the Commissioner and Secretary, Government of Bihar, Department of Personnel and Administrative Reforms, (Annexure 29 to the writ petition) wherein reference has been made to the remarks of one of the Hon'ble Judges of the High Court after his visit to Sitamarhi in May 1983 regarding the conduct of Respondent 1 being undesirable and unbecoming of a judicial officer and reference has also been made to the complaints touching his integrity with respect to his judicial work and complaints regarding his character and morality and that it was reported that he used to drink heavily and play “flush” in the town with different rich persons.
6. The service record of Respondent 1 contains the following remarks:
1976-77 (C.R of Hazaribagh) — “Outturn was poor.” 1977-78 (C.R of Patna) — “An officer of below average merit.” Remark by Court — “Should improve his image.” 1979-80 (C.R of Patna) — “Outturn poor, so was the quality of his orders. Did not enjoy the confidence of the Bar and litigant. Integrity questionable.” 1981-82 (C.R of Sitamarhi) — “Injunction order passed in TS No. 81 of 1979 was based on extraneous reasons.” Remarks by the Court — “He did not enjoy good reputa-tion as Execution Munsif, Patna.”
“Further, in course of inspection of Sitamarhi Judgeship in May 1983, by an Hon'ble Judge of this Court, the conduct and antecedents of Shri Sinha at that station were reported to be very much undesirable and unbecoming of a Judicial Officer. Apart from the complaints touching his integrity with respect to his judicial work, serious complaints regarding his character and morality were also received. It was reported that he used to drink heavily and play “flush” in the town with different rich persons.” (pp. 7-8)
The remarks for the years 1976-77 and 1979-80 had been communicated to Respondent 1 prior to the High Court took the decision on 19-6-1985 that Respondent 1 is not fit for retention in service. The other remarks mentioned about were, however, communicated to Respondent 1 after the said decision had been taken. The question is whether the non-communication of the said adverse remarks vitiates the action that has been taken against Respondent 1, viz., termination of his services on the ground that he was not fit for confirmation on the post of Munsif. As regards a probationer, the law is well settled that he does not have a right to hold the post during the period of probation. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. An order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution. Since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice. But principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. It is, therefore, not possible to hold that there is an obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service. Such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. In this context it may be mentioned that even with respect to persons who have been substantively appointed on a post and have a right to hold that post, it has been held that the failure to communicate the adverse remarks in the service record would not vitiate the order of compulsory retirement. (See: Union of India v. M.E Reddy (1980) 2 SCC 15 and Baikuntha Nath Das v. Chief Distt. Medical Officer (1992) 2 SCC 299, (1992) 21 ATC 649.)
7. Shri Swarup has invited our attention to the decision of this Court in State of U.P v. Mohd. Waqar Hussain 1995 Supp (3) SCC 669, (1995) 31 ATC 765. The said decision does not lend any assistance to his submission. In that case, after noticing the submission urged on behalf of the State on the basis of the decision in Baikuntha Nath Das (1992) 2 SCC 299, (1992) 21 ATC 649 that uncommunicated adverse entries could be relied upon for the limited purpose of assessing the suitability of a candidate, this Court has observed that it was not necessary for the Court to go into the question whether the decision of the Public Service Commission was vitiated on account of uncommunicated adverse entries for the reason that there was nothing to show that the said decision was based on the said entries. Shri Swarup has also relied upon the decision of this Court in Ranendra Chandra Banerjee v. Union of India AIR 1963 SC 1552, (1964) 2 SCR 135. In that case this Court was dealing with Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, 1930 wherein it was provided that 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. Having regard to the said provision contained in Rule 55-B, this Court held that the government employee was entitled to be informed of the grounds on which his services were sought to be terminated and given an opportunity to show cause against the same. The said decision cannot be construed as laying down a general proposition that in every case where services of a probationer are terminated during the period of probation, he must be apprised of the grounds for such proposal and given an opportunity to show cause against it. Since there is no provision similar to Rule 55-B in the rules governing the post of Munsif on which Respondent 1 had been appointed on probation, he cannot seek any assistance from the said decision of this Court.
8. We are, therefore, unable to hold that the failure to communicate some of the adverse remarks to Respondent 1 prior to 19-6-1985 vitiates the decision taken by the High Court on 19-6-1985 that Respondent 1 was not fit for confirmation on the post of Munsif and that his services should be terminated.
9. In support of the other reason given by the High Court that the order terminating the services of Respondent 1 was passed by way of punishment, Shri Swarup has placed reliance on the decision of this Court in Anoop Jaiswal v. Govt. of India (1984) 2 SCC 369. We have carefully perused the said decision. It has no application to the facts of the present case. In that case this Court, after considering the relevant material, came to the conclusion that the real foundation for the action which was taken against the employee was the alleged act of misconduct in having instigated other trainees in not coming to P.T in time on 22-6-1981. It was held that since the said act of misconduct was the foundation of the order, the order of termination was passed by way of punishment and since the requirements of Article 311(2) of the Constitution were not complied with, the said order was set aside. We cannot say so in the facts of the present case. Here the decision to terminate the services of Respondent 1 was taken by the High Court after considering the entries in the service record of Respondent 1 covering the entire period of probation. It cannot be said that the said decision of the High Court was founded on any particular act of misconduct. Merely because in the letter dated 5-3-1986, reference has been made to the complaints touching the integrity of Respondent 1 with respect to his judicial work and complaints regarding his character and morality and that he used to drink heavily and play “flush” in the town with different rich persons does not lead to the inference that the order was passed by way of punishment for particular acts of misconduct. These reports were taken into account for assessing the performance of Respondent 1 during the period of probation and for determining whether he was fit for confirmation on the post of Munsif. The said remarks, in our opinion, could legitimately form the basis for deciding whether Respondent 1 was suitable for retention in service or not. It is, therefore, not possible to hold that the order for termination of the services of Respondent 1 dated 28-8-1986 was passed by way of punishment for misconduct.
10. For the reasons aforementioned, we are unable to agree with the impugned judgment of the High Court setting aside the order dated 26-8-1986. The appeal is, therefore, allowed, the judgment of the High Court dated 22-10-1990 is set aside and the writ petition (CWJC No. 2046 of 1987) filed by Respondent 1 is dismissed. But in the circumstances, there will be no order as to costs.
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