This article contains a brief note for the leading case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : AIR 1974 SC 2192, which is a part of the paper “Leading Cases” for the Supreme Court Advocate on Record Examination 2015. This note was a part of my lecture delivered in 2013 to about 100+ Advocates who were preparing for the AOR examination. It is a part of the AOR series on leading cases.
Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : AIR 1974 SC 2192:
This is a case decided by a 7-Judge Bench of the Supreme Court. Two concurring opinions were delivered (one of 5 Judges and the other of 2 Judges). The two appellants in this case had joined the Punjab Civil Service (Judicial Branch) and were on probation. The probation of both of them were terminated by orders of concerned Ministers / Chief Minister in conformity with the recommendations of the High Court under different provisions of relevant rules. The orders of termination were issued in the name of the Governor of Punjab without seeking or obtaining his personal satisfaction. The appellants contended that the Governor as the constitutional or the formal head of the State can exercise powers and functions of appointment and removal of members of the Subordinate Judicial Service only personally. The Supreme Court held as under:
- Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
- Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under Rules of Business made under any of the two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. Therefore, the decision of a Minister or officer under the Rules of Business is the decision of the President or the Governor.
- Where the Governor has any discretion the Governor acts on his own judgment. The appointment as well as removal of the members of the Subordinate Judicial Services is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head of the Executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to appointment or dismissal is brought against the Union or the State and not against the President or the Governor. The contention of the appellants that the order was passed by the Chief Minister without the formal approval of the Governor is, therefore, untenable. The order is the order of the Governor.
On the issue of termination of services of a probationer, the Supreme Court held as under:
- A probationer has no right to continue to hold the post and, therefore, the termination of his service does not operate as forfeiture of any right and is to be distinguished from dismissal, removal or reduction in rank. It is punishment only when the termination is founded on misconduct, negligence or inefficiency, the motive being irrelevant.
- The services of a probationer can be terminated when the authority is satisfied regarding his inadequacy for the job or unsuitability for temperamental or other reasons not involving moral turpitude or when his conduct may result in dismissal or removal but without a formal enquiry. The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. The substance of the order and not the form would be decisive.
- If the services of a probationer are terminated on the basis of a report based on misconduct then it violates Article 311.
In this case, the High Court entrusted the enquiry against one appellant to the Vigilance Department who conducted the enquiry behind his back, and on the basis of the report regarding allegations of misconduct, the services of that appellant probationer were terminated. It was held that the form is not decisive and order is by way of punishment. His appeal was allowed.
In the case of the second appellant also, it was found that his probation was terminated not on account of judging his unsuitability for the job, but on the basis of certain specific allegations against him. Therefore, his appeal was also allowed on the ground that termination of his probation was by way of a punishment for which a regular enquiry was necessary.
IMPORTANT: Read notes on other leading cases for the SC AOR Examination: AOR Series.
