A. N. Ray, D. G. Palekar, K. K. Mathew, Y. V. Chandrachud, A. Alagiriswamy, P. N. Bhagwati, V. R. Krishna Iyer ( 1 ) SAMSHER Singh was appointed as sub- judge on 1. 5. 64 He was on probation. On 22. 3. 67, Government gave him a show cause notice as to why his services should not be terminated since he was found unsuitable and then on 29. 4 67, his service was terminated with immediate effect under Rule 9 of Punjab Civil Service (Punishment and Appeal) Rules. Other appellant completed his 3 years probation on 11. 11. 6s. His services were dispensed with immediate effect under Rule 7 (3), Part D of P. CS. (Judicial Br.) Rules. They moved High Court without success and then they appealed to Supreme Court, Relying on the case Sardari Lal vs Union of India 1971. 3. SR. 461, they pleaded that as Governor was appointing authority U/art. 234 of the Constitution, he must exercise the power of removal personally Contention of the State was that the Governor exercises the powers like other executive powers on the aid and advice of the council of ministers and not pernonally. The Court upheld the contention of State on this constitutional question and over-ruled the decision of Sardari Lal. ( 2 ) IN the present appeals 2 rules which deal with termination of service of a probationer in Punjab are Rule 9 of Punishment and Appeal Rules, 1952 and Rule 7 (3) of P. C. S. (J) Rules. Rule 9 provides for termination of service of a probationer for unsuitability after an opportunity of show cause, Role 7 (3) lays down that if probationer is working against a permanent vacancy and his work is satisfactory then he may be confirmed on the recommendation of High Court and if his work is not satisfactory then either his service may be terminated or his probation may be extended. Rule 9 contemplates an enquiry while Rule 7 does not. The position of a probationer was considered in P. L. Dhingra s case 1958. S. C. R. 828, in which it was observed that if right exists under the contract or Rules to terminate service then motive operating on the mind of Government is not relevant and if termination is sought to be found on misconduct etc. then it is punishment. S. C. R. 828, in which it was observed that if right exists under the contract or Rules to terminate service then motive operating on the mind of Government is not relevant and if termination is sought to be found on misconduct etc. then it is punishment. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order than that the services are terminated it can never amount to panishment in the facts and circumstances of the case. An authority may take the view that a probationer may be inadequate for the job or he may be discharged for any temperamental or other object not involving moral turpitude and in such a case no punishment is involved. Authority may in some cases be of the view that eonduct of probationer may result in dismissal on enquiry and may dispense with enquiry and simply discharge him without a stigma with a view to give him a chance to make good in other walks of life. If Government brands a probationer as incomptent then he is entitled to protection of Art. 311 per Gopi Kishore s case AIR. . 1960. S. C. 689. ( 3 ) THE fact of holding an enquiry is not conclusive. What is decisive is whether the order is by way of penalty per State Vs. Ram Narayan Das 1961. S C. R. 606. If there is enquiry, facts and circumstances should be looked into to find out whether order is one of dismissal in substance per Madan Gopal Vs. State 1963. 3. S. C. R. 716. If there is preliminary enquiry to find out if disciplinary enquiry should be held or not or to dispense with service then Art. 311 is not attracted per R. C. Lacy Vs. State of Bihar C. A. 590/62, D/ 23. 10. 63 C. G. Shah Vs. Union of India 1964. S. C. R. 190. A Statement in order that temporary servant is undesirable imports an element of punishment per Jagdish Mitter Vs. Union of India AIR 1964 S. C. 449. State of Bihar C. A. 590/62, D/ 23. 10. 63 C. G. Shah Vs. Union of India 1964. S. C. R. 190. A Statement in order that temporary servant is undesirable imports an element of punishment per Jagdish Mitter Vs. Union of India AIR 1964 S. C. 449. ( 4 ) IF facts and circumstances of an order indicate that the substance of the order is by way of penalty then probationer is entitled to protection of Art. 311. Substance and not form of the order is decisive per K. H. Phadnis V. State 1971. Supp. S. C. R 118. If an order though unexceptionable in form but is made following a report based on misconduct then it is penal vide State Vs. Shiva Bhikshik 1971. 2. S. C. R. 191. ( 5 ) APPELLANT claimed that on expiry of period of probation of 2 years (the maximum to which extention can be made) he became automatically confirmed. Under Rule 7 (1) period of probation is 2 years and it can be further extended by a maximum of one year. The explanation says that a person shall be deemed a probationer untill he is confirmed. Because of this Dharam Singh s case 1968. 3. S. C. R. that an employee be deemed confirmed on texpiry of period of probation is not applicable. Further the proviso to rule 7 (3) says that there would not be automatic confirmation till there is a permanent vacancy. Thus period of probation gets extended by implication until proceedings against a probationer like appellant get concluded to enable Government whether he should be confirmed or discharged. The second proviso to Rule (3) which came into existence on 19. 11. 70 says that a probationer can be discharged even after completion of period of probation. As Ishwar Chand was not confirmed and Director of Vigilence was holding enquiry, he cannot be deemed automatically confirmed. ( 6 ) ENQUIRY Officer nominated by Vigilence Director recorded statement of witnesses at the back of appellant. Neither his report nor statement were made available to appellant. High Court accepted the report and on 25 5. 69 recommended appellant s termination of service. It was by way of penalty in the facts and circumstances of the case. High Court denied to appellant protection of Art. 311. It also denied to itself dignified control over subordinate judiciary. Neither his report nor statement were made available to appellant. High Court accepted the report and on 25 5. 69 recommended appellant s termination of service. It was by way of penalty in the facts and circumstances of the case. High Court denied to appellant protection of Art. 311. It also denied to itself dignified control over subordinate judiciary. The form of the order is not decisive. Circumstances of the case establish that an enquiry in infraction of Act. 311 was made which involved a stigma. Simplicity of form of order does not accord any sanctity to it. The order is illegal. High Court abdicated its control U/art, 235 over subordinate judiciary in favour of Government (Vigilance department ). High Court failed to discharge its duty of care and custody over sub- Judges. Its act was one of self abnegation. Contention that High Court wanted Government to satisfy itself makes matters worse. It should have conducted enquiry through a District Judge for sub-Judges look to High Court not only for discipline but also for dignity. ( 7 ) SAMSER Singh was appointed on 1-5-64. On 15-12-66, High Court wrote against him to Government and the latter on 22-3-67 asked him to show cause why his service should not be terminated as he had been found unsuitable for the job. He gave the answer and then on 27-4-67 his services were terminated. There were 4 grounds against him, behaviour towards the bar and the litigants highly objectionable, leaving office early, complaint of an agricultural Inspector and complaint of a judgement debtor. Of the second and third ground he had been earlier punished by means of a warning. Complaint of the judgement debtor was baseless as appellant had done nothing that was inconsistent with the decree. Under Rule 9, service can be terminated for a specific fault or for unsatisfactory record implying unsutiabilty for service. Instead of finding suitability authorities concerned themselves with trifle matters. The order is in infraction of Rule 9. The impugned orders are set aside. Ishwar Chander is declared to be a member of PCS (J ). As Samsher Singh is already serving in the Ministry of law, he would be entitled to salary and other monetary benefits till he joined present service. ( 8 ) THE above majority opinion was of Hon ble Mr. A. N. Ray, C. J. Mr. Ishwar Chander is declared to be a member of PCS (J ). As Samsher Singh is already serving in the Ministry of law, he would be entitled to salary and other monetary benefits till he joined present service. ( 8 ) THE above majority opinion was of Hon ble Mr. A. N. Ray, C. J. Mr. V. R. Krishna Iyer wrote a separate but concurring opinion for himself and on behalf of P. N. Bhagwati, J. which is :- ( 9 ) THESE 2 appeals by a couple of small judicial officers have projected constitutional issues whose profound import and broad impact, if accepted, may, shake up or re-shape the parliamentary corner-stone of our nation. Great deference andcomplete concurrence would have otherwise left us merely to say, we agree, to what has fallen from the learned Chief Justice just now, but when basic principles are assailed with textual support, academic backing and judicial dicta, speech, and not silence is our option. ( 10 ) THE question is : does our legal political system approximate Westminster-style Cabinet Government or contemplate President and Governor, unlike British crown, being real repositories of power. Is Rashtrapati Bhawan or Raj Bhawan an Indian Buckingham Palace or a half way house between it and the white- house ? This Court has a solemn duty, as a high sentinel authorised by Art. 141, to what our law of the Constitution is. The major instrumentalities must work in comity and avoid a collision course. In this task, we must keep away from ideological slants and imaginary apprehensions and should not import personal predilections. Our founding fathers were not political prophets who could foresee glaring abuses or perverted developments. In a classic passage. Mill told lovers of Liberty : "of what avail is popular representative system if the electors do not care to choose the best M. P. , but choose him who will spend the most money to be elected. How can a representative assembly work for good, if its. members can be bought, or if their excitability of temperament, uncorrected by public discipline or private self-control, makes them incapable of calm deliberation. " ( 11 ) WE are not unmindful of agitational siege of parliamentary institutions and frustrations showing up against unsavoury politics of power. But we have to interpret Constitution as it is and not venture starry eyed proposal for reform. " ( 11 ) WE are not unmindful of agitational siege of parliamentary institutions and frustrations showing up against unsavoury politics of power. But we have to interpret Constitution as it is and not venture starry eyed proposal for reform. Our activism in interpretation must not be bogged down by logmachy or blinkered by legalism, but be aglow with insightful observations of Marshall C J. : We must never forget that it is a Constitution which we are expounding, a Constitution intended to endure for ages and be adapted to various crisis of human affairs. It was not to be so strictly interpreted that amendments and radical revisions would be constantly required. ( 12 ) IT is surprising that extreme viewy have been propounded by responsible jurists on the law of our Constitution and danger portents must be forestalled by an authoritative statement. If earlier rulings have to be overruled we may not hesitate to do so. For, it is. truer to our tryst to be ultimately right, than to be consistently wrong, where the constitutional destiny of a developing nation is at stake. ( 13 ) (THE opinion then discusses the constituent Assembly debates by Nehru, Patel, Munshi, B. N. Rao, Alladi K. Aiyer. Ambedkar, Rajender Parshad. It notes the later views of Munshi and Rajender Parshad at disillusionment on working of cabinet system, views ofp. B. Mukerjee,j. ,ismail J. , Seervai, Alexanderovicz, B. N. Rau, Sir Ivor Jenning, Setalvad, Prof. Alen Glendhill and the case law on the subject ). That President and Governor are not required by the Constitution to act personally but they must act on the advice of the Council of ministers. That the expressions like is satisfied , opinion , as he thinks fit . if it appears to , have to be interpreted by superimposing the invisible but very real presence of the Ministry over the Head of State. That pronouncements of summit tribunal being law under Art. 141, it binds until reinterpreted differently and competently. As judges we have solemnly to remind ourselves that it is the Constitution which is the law and not our decision. A reversal of Sardari Lal s decision would not upset stare decisis. That pronouncements of summit tribunal being law under Art. 141, it binds until reinterpreted differently and competently. As judges we have solemnly to remind ourselves that it is the Constitution which is the law and not our decision. A reversal of Sardari Lal s decision would not upset stare decisis. Some rulings, even of highest court, when running against current of case law and constitutional thought are of same class as a restricted railroad ticket, good for this day and this train per Roberts, J. in Smith Vs. Alleright 321. U. S. 649. ( 14 ) THE second spinal issue beats on fearless justice. It becomes fair and free only if institutional immunity and autonomy is guaranteed. The exclusion of executive interference with subordinate judiciary can be a teasing illusion if the control over them is vested in two masters, the High Court and the Government, the latter being otherwise stronger. Sometimes a transfer is more harmful than a punishment and High Court disciplinary control may be stultified by appellate jurisdiction of Government over High Court s administrative orders. Articles 233 to 237 bear out the cardinal principle of separation of executive from the judiciary. If police is permitted to check upon complaints then invasion of judicial independence is inevitable. No Magistrate may function fearlessly if prosecuting department may also investigate against him. It is regretted that this sensitive issue was ignored by High Court. ( 1 ) THE third contention turns on the sweep of Art. 311 and the service rules. Launching pad is the Dhingra s case 1958. S. C. R. 828. It is the Magna carta of civil servants. Although it has spawned diverse judicial trends, it is difficult to discipline into a single, simple practical formula applicable to termination of probation or service of a tempo rary employee. Judicial search hasturned focus on discovery of element of punishment in the order. If termination of service is inoccuous and there is no stigma then constitutional shield of Art. 311 is not available. In a series of cases Court has wrestled with the problem of devising a rule to determine this question, where non-punitive termination of probation for unsuitability ends and punitive action for delinquency begins. From the case of Gopi Kishore AIR 1950. S. C. 689 to the case of Ram Narayan Das AIR. 1961. In a series of cases Court has wrestled with the problem of devising a rule to determine this question, where non-punitive termination of probation for unsuitability ends and punitive action for delinquency begins. From the case of Gopi Kishore AIR 1950. S. C. 689 to the case of Ram Narayan Das AIR. 1961. S. C. 177, a shift was made from the factum of enquiry to the object of enquiry. Madan Gopal s case AIR. 1963. S. C. 531 found the court applying the object of enquiry doctrine to a simple order of termination which had been preceded by a show cause notice and enquiry holding that if enquiry was intended to take traumatic action, then innocent phraseology made no difference. Then came Jagdish Milter s case AIR. 1964. S. C. 449, in which order referred that appellant was undesirable to be retained in service and it was held as casting a stigma. Thus we see how membranous distinctions have been evolved between enquiry merely to ascertain unsuitability and one held to punish the delinquent-too impractical and uncertain, particularly when we remember that the machinery to apply this delicate test is the administrator untrained in legal nuances. The impact on the fired individual, be it termination or removal is the same. Dr. Tripathi in his book spotlights on Contitulional interpretation has criticised object of enquiry substance of matter as indistinguishable from a search for the motive and that failure to appreciate relationship between motive (real, but unrevealed) and form (the apparent or revealed object) has led to an unreal interplay of words and phrases where symbols like motive , substance , form , or direct parade in different combinations without communicating precisesituations or entities in the world of facts. ( 16 ) THE need in this branch of jurisprudence, is cot so much to reach perfect justice but to lay down a plain test which one can understand without subtlety. After all between unuitability and misconduct thin partitions do their bounds divide. And over the years accent of this court has shifted, the cannons have varied and predictability has proved difficult because of play of legal light and shade has been baffling. The learned Chief Justice has tackled this problem and we agree with the conclusion reached by him.