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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Sinha, C.J
  • Mudholkar, J.
Acts
  • Rules 49, 55, 56 etc. and amendments of Rule 3
  • Fundamental Rule 26 A.G.I 4
  • Fundamental Rule 26 A.G.I 2,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Sinha, C.J
  • Mudholkar, J.
Acts
  • Rules 49, 55, 56 etc. and amendments of Rule 3
  • Fundamental Rule 26 A.G.I 4
  • Fundamental Rule 26 A.G.I 2,
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner was Diwan in the Udaipur State from September 1947 until the end of 1947, receiving a salary of Rs. 400 per month. By an integration agreement dated 15-12-1947 between the Ruler of Udaipur State and the Government of the Central Provinces and Berar (now the State of Madhya Pradesh), the administration of Udaipur State was integrated with that of Madhya Pradesh and servants of Udaipur State were to be absorbed "as far as possible." The petitioner was taken into the Central Provinces Service (Executive Branch) as an Extra Assistant Commissioner, placed on probation with a starting salary of Rs. 300 per month.

The petitioner challenged his placement on probation, the reduction in salary, the non-grant of increments, alleged non-application of Pay Committee principles to fix basic pay, and extensions of his probation. His probation was extended periodically and ultimately his services were terminated by an order of the Governor of Madhya Pradesh dated 19-1-1952. He brought a petition under Article 226 of the Constitution seeking multiple reliefs, including quashing of probationary declarations and extensions, quashing the suspension and termination orders, payment of pay and benefits backdated to 15-12-1947, and other related reliefs.

Legal Issues Presented

  1. Whether the Court can grant reliefs that arise out of or were the consequence of orders passed before the commencement of the Constitution.
  2. Whether the petitioner, an absorbed State servant, could properly be treated as a probationer in the Madhya Pradesh service and whether extensions of probation were lawful.
  3. Whether the termination of the petitioner's service (order dated 19-1-1952) complied with the requirements of Article 311 of the Constitution, having regard to the specificity of charges and opportunity to be heard.
  4. Whether the petitioner was entitled to increments during probation or only after confirmation, and how Fundamental Rule 26 A.G.I 4 and 26 A.G.I 2 applied depending on the terms of appointment.
  5. Whether the criminal prosecution against the petitioner ought to be stayed by this civil/constitutional forum for want of sanction.
  6. Whether the posting of the petitioner to places outside or within the State is a matter justiciable in this Court.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner asserted that as a confirmed servant of Udaipur State he was not liable to be placed on probation in the Madhya Pradesh Civil Services and was entitled to the same salary he had previously received (Rs. 400 p.m.).
  • He alleged denial of increments since joining Madhya Pradesh service and that his basic pay was not fixed according to the principles of the Pay Committee despite appointment orders indicating it would be.
  • He challenged extensions of his probation, suspension, proposal to terminate and the final termination of his service.
  • He sought back benefits under the Central Pay Committee from 15-12-1947, compensation for loss of privileges (bungalow, car, provident fund, educational benefits, etc.), retrospective annual increments, and declaration of continued service under the original authority.
  • He also sought an injunction or stay against a criminal prosecution contending lack of proper sanction and sought production of various files and records relating to absorption, classification rule amendments, probation extensions, suspension and termination proceedings.
  • Alternatively, he sought posting away from specified districts and adjudication of his confirmation, pay and seniority rights.

Government's / Respondent's Arguments

  • The Government contended several of the petitioner's claims related to events or orders passed before the commencement of the Constitution and were therefore beyond the Court's competence.
  • The State Government asserted its discretion to extend probationary periods of Government servants depending on circumstances.
  • On the termination/suspension issue, the Government relied upon show-cause proceedings and the advice of the Public Service Commission before terminating the petitioner's services.
  • The learned Additional Government Pleader argued that the petitioner knew the nature of charges against him because several adverse remarks about his work during probation were communicated to him.
  • As to the criminal prosecution, the Government indicated that the question of sanction had been raised before the criminal court and hence the criminal court should decide it; this Court need not interfere in that pending proceeding.
  • The Government maintained that posting of officers is within its discretion and not ordinarily justiciable.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court proceeded through the petitioner's prayers and objections sequentially, applying jurisdictional and procedural principles strictly as spelled out in the opinion:

  1. Pre-Constitution matters: The Court held that several prayers (notably the first, second, fifth and sixth) concerned matters arising before the commencement of the Constitution and were therefore outside its competence to grant.
  2. Probation and extension of probation: The Court observed that extension of a probationary period is within the province and discretion of the State Government and therefore such matters fall primarily for administrative decision unless they violate applicable law or procedure.
  3. Increments and pay fixation: The entitlement to increments was held to depend on the actual terms of the appointment order (which were not before the Court). The Court explained the two possible outcomes stated in the opinion:
    • If the appointment order entitled the petitioner to increments during probation, then under Fundamental Rule 26 A.G.I 4 he would be entitled to those increments;
    • Otherwise, under Fundamental Rule 26 A.G.I 2, increments would accrue only after confirmation, albeit with retrospective effect once confirmation occurs.
    The Court limited itself to this legal framework because the specific appointment order was not on record.
  4. Criminal prosecution and sanction: The petitioner had raised the question of sanction before the criminal court. The constitutional court declined to decide the sanction issue in the exercise of its present jurisdiction, leaving the matter to the criminal court and to any remedies available against that court's decision.
  5. Posting: The Court expressed doubt whether the State could post officers outside Madhya Pradesh but emphatically held that posting is a discretionary act of the Government and that the exercise of that discretion is not justiciable in the constitutional forum.
  6. Suspension, show-cause and termination: The critical analytical segment concerned the termination order dated 19-1-1952. Facts found by the Court include:
    • The petitioner was suspended on 2-6-1951 pending a contemplated prosecution under Sections 409 and 420 of the Penal Code.
    • He was served with a memorandum dated 16-8-1951 asking him to show cause why his services should not be terminated on two stated grounds: (1) unsatisfactory work during probation; (2) failure to report to the Deputy Commissioner, Raigarh.
    • He submitted a representation in reply. The termination order of 19-1-1952 stated that the petitioner’s services were terminated because his work during probation was not found satisfactory and recorded that the Government acted after considering the petitioner's reply and advice of the Public Service Commission.
    • The termination order did not rest on the second charge, and there was documentary material showing that the petitioner did report to the Deputy Commissioner on 2-7-1951.
  7. Procedural fairness and Article 311: The Court emphasized its usual limitation of not going into the merits of administrative assessments, but strictly scrutinizing whether a reasonable opportunity to meet charges was given. It concluded that the first charge ("work during the period of your probation is found to be unsatisfactory") was so vague that it failed to inform the petitioner of the specific allegations he had to meet. The Court held that it is imperative for the State to frame specific charges with full particularity and to give an adequate opportunity to answer them.
  8. Applicability of Article 311 to probationers: Citing Explanation 2 to Rule 49, Part I, Serial No. 13 of the Government Book Circulars (as discussed in the opinion), the Court accepted that discharge of a probationer for a specific fault or on account of unsuitability amounts to removal or dismissal within the meaning of that rule. If it amounts to dismissal, then Article 311 of the Constitution is attracted and protects the Government servant. Consequently, the Court held that probationers are entitled to the protection of Article 311 (i.e., a reasonable opportunity to show cause) before removal/dismissal-like action is taken.
  9. Conclusion on termination: Because the charge relied upon was too vague and did not afford the petitioner a reasonable opportunity to know and meet the precise allegations, the Court found the termination order of 19-1-1952 to be in contravention of Article 311 and therefore erroneous. The Court set aside the termination order and reinstated the petitioner to obviate administrative difficulties.

Holding and Implications

CORE HOLDING: The termination order dated 19-1-1952 was set aside and the petitioner was reinstated.

Immediate consequences for the parties:

  • The order terminating the petitioner's services was quashed and the petitioner was reinstated.
  • Certain prayers were held to be beyond the Court's competence because they concerned actions and orders arising before the commencement of the Constitution (and therefore those specific reliefs were refused on that ground).
  • The Court declined to interfere with the criminal court's handling of the sanction question and left that issue to the criminal court's process and the petitioner's remedies against any decision there.
  • The Court clarified the legal position that the discharge of a probationer for unsuitability/due to fault can amount to dismissal within the meaning of the relevant service rule and that Article 311 protections apply; accordingly, specificity of charges and reasonable opportunity to answer are required.

Further procedural note recorded by the Court:

  • The Court certified the matter as a fit case for grant of leave to appeal to the Supreme Court under Article 132(1) of the Constitution because it involved a substantial question of law concerning the interpretation of the Constitution.

Disposition recorded in the opinion: "Application allowed." (Signed A/V.B.B.)

Show full summary ...

    Tribhuwannath Pandey v. Government Of The Union Of India

    1. This is a petition under Article 226 of the Constitution.

    2. According to the petitioner he was Diwan in the Udaipur State from September 1947 till the end of that year and drew a salary of Rs. 400-0-0 P.M By virtue of the agreement of integration dated 15-12-1947 between the Ruler of Udaipur State and the Government of the Central Provinces and Berar (now the State of Madhya Pradesh) the administration of the Udaipur State was completely integrated with that of Madhya Pradesh. As a consequence of integration of the two administrations it was stated that the servants of the Udaipur State would be absorbed as far as possible in their proper positions in Madhya Pradesh. The petitioner was accordingly taken up as an Extra Assistant Commissioner in the Central Provinces Service Executive Branch. He was placed on probation and his starting salary was fixed at Rs. 300-0-0 P.M He makes a grievance of this because, being a confirmed servant of the Udaipur State he was not liable to be placed on probation in the Madhya Pradesh Civil Services and that he was entitled to the same salary as he was getting in the Udaipur State. Another grievance is that he has not been given any increments ever since his joining the service of the State of Madhya Pradesh. A further grievance is that though in the order of appointment he was told that his basic pay will be fixed according to the principle formulated by the Pay Committee that has not been done. It may be mentioned that the petitioner's period of probation was extended from time to time and eventually his services were terminated by an order passed by the Governor of Madhya Pradesh on 19-1-1952. The petitioner's grievance is also directed against the termination of his service. The other grievances are sufficiently disclosed in the prayers made by him in his petition. His prayers are as follows:

    “(1). That non-petitioner 1 may be directed to treat the petitioner as its employee under Central General service with corresponding seniority, pay, status etc. according to law.

    (2). That the order declaring the petitioner as a probationer under the non-petitioner 2 may be declared a nullity and inoperative.

    (3). That the orders extending the probationary periods in January 1950 and again in June 1950 may be declared void and quashed and the petitioner may be ordered to be ‘absorbed’ as confirmed employee.

    (4). That the orders of suspension, the proposal to terminate service and the termination of service of the non-petitioner 2 against the petitioner may be declared illegal and in excess of jurisdiction and may be quashed.

    (5). That the petitioner may be declared to be entitled to the benefits of the Central Pay Committee recommendations as accruing to him from the date of the agreement, i.e, from 15-12-1947.

    (6). That compensation in lieu of the petitioner's privileges of free furnished bungalow, free use of State car, conveyances etc. contributory provident fund, comparative cheap living index in States, education (free) facilities etc. may be ordered to be paid to the petitioner by the non-petitioner 2 on behalf of non-petitioner 1.

    (7). That all annual increments as accruing to the petitioner from 1-1-1948 in the changed administration may be ordered to be given to him.

    (8). That the petitioner may be declared to be continuing in service of the non-petitioner 1 serving in connection with the affairs of a province, i.e under non-petitioner 2.

    (9). That the order to prosecute the petitioner in the aforesaid Criminal Case lately started by authorities claiming under non-petitioner 2, may be under non-petitioner 1, may be ordered to stop and recoveries made from the petitioner in due process of law in terms of the revenue recovery case or under civil law, if permissible under the law. Alternatively, the case may be taken on the file of this Honourable Court in original jurisdiction.

    (10) That this Honourable Court may be pleased to call for the files and note sheets etc. concerning the Absorption of the State Employees and the petitioner in particular, from the Political and Military Department, the General Administration Department, Appointments Department and from the Offices of the Deputy Commissioners at Raigarh and Chaqda under the non-petitioner 2 and corresponding files under the Ministry of States of the non-petitioner 1 to know the truth regarding Vested rights of the petitioner:

    (i). In terms of absorption and guarantee of non-petitioners.

    (ii). Subsequent amendments of classification Rules 49, 55, 56 etc. and amendments of Rule 3 of the General Book Circular Part I-Serial No. 13 (or 47).

    (iii). Files relating to issue of order No. 304/181/11 dated 21-1-1948 and files relating to extensions of probationary-period, suspension of the petitioner, proposal to terminate service and the final termination of services of the petitioner.

    (iv). File regarding creation of fictitious and illegal vacancies against permanent posts of absorbed State employees and the persons appointed in those alleged vacancies.

    (11). That the non-petitioner 2 may be ordered to post the petitioner at any other place outside Madhya Pradesh or alternatively the non-petitioner 2 may be ordered to post the petitioner at any other place in the State of Madhya Pradesh excepting the Districts of Raigarh and Chanda.

    (12). That the question of the petitioner's confirmation, pay, seniority, privileges etc. may be ordered to be decided in terms of the express and implied guarantees and vested rights and law.”

    3. As regards the first two prayers all that we need point out is that they relate to matters which arose before the Constitution and therefore it is not within our competence to grant them. As regards the third prayer, we may point out that it is within the province of the State Government to extend the probationary period of a Government servant from time to time according to the circumstances. We shall deal with the fourth prayer a little later. The fifth and sixth prayers arise out of or were the consequence of an order passed before the commencement of the Constitution and therefore it is beyond our competence to grant them. As regards the seventh prayer, which is to the effect that he has not been granted any increments ever since his appointment, we may point out that his right to claim increments would depend upon the actual terms of the appointment order. That order is not before us. If the order of appointment entitles him to earn an increment during the period of probation then under Fundamental Rule 26 A.G.I 4 he would be entitled to claim his increment during the period. On the other hand, if the order does not make a provision to the effect then under Fundamental Rule 26 A.G.I 2, the petitioner will be entitled to get increments only after his confirmation, though of course, he would get them retrospectively.

    4. The eighth prayer would be taken along with the fourth. The ninth prayer is to the effect that the criminal prosecution which is going on against the petitioner must be stayed because there is no proper sanction for it. We understand that the petitioner has raised the question of sanction before the criminal Court and therefore we do not want to say anything in regard to it. It is for the criminal Court to decide the question and if the petitioner feels aggrieved by the decision of the criminal Court he has remedies under law to challenge its decision.

    5. The tenth prayer is to the effect that the petitioner should be re-posted outside the State of Madhya Pradesh, or at any other place excepting the districts of Raigarh and Chanda. Apart from the doubt we entertain whether the State Government has power to post any of its officers outside the State of Madhya Pradesh, we are clear that the posting of an officer is a matter entirely in the discretion of the Government and the exercise of that discretion is not justiciable.

    6. Concerning the fourth and eighth prayers we are of opinion that the petitioner's grievance is a just one. He was placed under suspension from 2-6-1951 because a prosecution was about to be launched against him for the alleged offence under Ss. 409 and 420, Penal Code. Sometime after the petitioner was suspended he was served with the following notice:

    “No. 3004-2099-I.

    Government of Madhya Pradesh,

    Appointments Department.

    MEMORANDUM.

    Dated Nagpur the 16th August 1951.

    Shri T.N Pandey,

    Extra Assistant Commissioner

    (under suspension)

    Raigarh.

    It appears to Government that you are unsuitable for being retained in service for the following reasons:

    (1) That your work during the period of your probation is found to be unsatisfactory.

    (2) In spite of clear orders of Government you have not reported yourself to the Deputy Commissioner, Raigarh and have thus disobeyed Government's orders and thereby committed an act of grave misconduct as a Government servant.

    It is therefore proposed to terminate your services immediately. But before a final decision is taken in the matter you are asked to show cause within 15 days from the date of receipt of this communication why your services should not be terminated.

    “By order of the Governor,

    Madhya Pradesh,

    Sd/- A. Carneiro,

    Deputy Secretary to Government,

    Madhya Pradesh,

    Appointments Department.”

    In reply to this notice the petitioner submitted his representation to the Government after considering which the Government passed an order in the following terms on 19-1-1952:

    “No. 214-135-I.

    Government of Madhya Pradesh,

    Appointments Department.

    MEMORANDUM.

    Shri T.N Pandey,

    Extra Assistant Commissioner

    (under suspension)

    Raigarh.

    As your work during the period of your probation was not found to be satisfactory, you were asked to show cause why your services should not be terminated. After taking into consideration your reply and the advice of the public service commission, Government have decided to terminate your services with effect from the date of receipt of this communication by you.

    By order of the Governor,

    Madhya Pradesh,

    Sd/- A. Carneiro,

    Deputy Secretary to Govt.,

    Madhya Pradesh,

    Appointments Department.”

    7. It will be seen that the order itself is to the effect that the services of the petitioner have been terminated because his work during the period of his probation has not been found to be satisfactory. It does not say that his services were being terminated because he did not report himself to the Deputy Commissioner, Raigarh, despite the Government's clear orders to that effect. Thus out of the two charges which were levelled against him the Government does not seem to have found him guilty under the second charge. Indeed, from one of the documents which is filed before us today by the learned Additional Government Pleader it will be clear that after the petitioner was suspended from service he was asked to report himself to the Deputy Commissioner, Raigarh. He actually complied with that order and he did present himself before the Deputy Commissioner on 2-7-1951. No doubt, he left Raigarh the next day but that is a different matter because the charge against him is not that he left Raigarh without the permission of the Deputy Commissioner.

    8. The question then is whether the petitioner's dismissal on the first ground is correct. We do not ordinarily go into the merits of the decision of the Government on a question of this kind and restrict ourselves to seeing whether the petitioner was duly told what the charges were against him and whether a reasonable opportunity was given to him to meet those charges or to make a representation. The first cha made against the petitioner is so vague that it cannot be said to give any idea to the petitioner of what he has to answer. Indeed, the charge virtually requires the petitioner to find out for himself — or imagine — what the specific charges against him are and then to answer these charges. Where such is the case, how can it at all be said that the petitioner was given a reasonable opportunity to show cause against the action proposed to be taken against him? For an opportunity to be reasonable a person must be told in the clearest terms and with full particularity what his alleged faults are.

    9. The learned Additional Government Pleader says that the petitioner well knew what the charges against him were because during his period of probation several adverse remarks regarding his work were made, those remarks were communicated to him and that he could well understand what were his defects. In our opinion, that is not correct. As we have already said it should not be left to the Government servant concerned to find out or imagine what the charges levelled against him are, but on the other hand, it is imperative on the State to frame specific charges with full particularity, intimate those charges to the Government servant concerned, give him adequate opportunity to answer those charges and after considering his answers to take its decision.

    10. It is said that as the petitioner was a probationer it was not necessary for the Government to hold an elaborate enquiry. Explanation 2 to Rule 49, Part I, Serial No. 13 of the Government Book Circulars clearly shows 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 his unsuitability for the service, amounts to removal or dismissal within the meaning of this rule. If it amounts to dismissal then Article 311 of the Constitution is attracted and therefore it is necessary for the Government to give a reasonable opportunity to a probationer also of showing cause against the action proposed to be taken against him as is done in the case of confirmed Government servants.

    11. In this view, we hold that the order of removal of the petitioner passed on 19-1-1952 was in contravention of Article 311 of the Constitution and therefore erroneous. Accordingly we set it aside and, in order to obviate any administrative difficulties, reinstate the petitioner. We certify that this is a fit case for grant of leave to appeal to the Supreme Court under Article 132(1) as it involves a substantial question of law as to the interpretation of the Constitution.

    A/V.B.B

    12. Application allowed.

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    Comments

    Tribhuwannath Pandey v. Government Of The Union Of India
    (Nov 18, 1952)