SAMSHER SINGH V. STATE OF PUNJAB (1974) 2 SCC 831
FACTS
In this case, two appellants who had joined the Punjab Civil Service were terminated from their positions during their probationary period without specific reasons provided. The issues before the court were whether the Governor can exercise discretion in the appointment and removal of members of the Subordinate Judicial Service.
ISSUES:
- Whether the Governor can exercise discretion in the appointment and removal of members of the Subordinate Judicial Service.
APPELLANT’S CONTENTIONS:
It was argued that the Governor should not have discretion in these matters and contended that Article 234 allows the Governor to exercise this power discreetly. They also pointed to Article 163, which enables the Governor to exercise their powers without the aid and advice of ministers. Additionally, they argued that Rule 7(2) in Part D of the Punjab Civil Rules allows the Governor, on the High Court's recommendation, to remove any Subordinate Judge during their probation period without providing reasons. The appellants asserted that the Governor possesses the authority to remove and appoint Subordinate Judges under Article 234 in conjunction with Rule 7(2) of the Service Rules, and this authority cannot be delegated to a Minister.
RESPONDENT’S CONTENTIONS:
It was argued that the Governor exercises their powers based on the aid and advice of the council of ministers, not at their own discretion. They contended that similar to the President's role as the constitutional head of the Union, the Governor is also the constitutional head of the state, and both of them exercise their powers and functions on the aid and advice of the Council of Ministers.
JUDGEMENT:
- The court held that the executive power of the state is vested in the Governor, similar to how the President holds similar powers at the Union level. When the Governor performs functions with the assistance of ministers, it is done by creating rules for the convenient transaction of state business or by allocating business to ministers under Article 166(3). The actions of ministers under this article are considered decisions of the Governor himself. The court emphasized that the powers of the President and the Governor are analogous to the Crown's powers under the British parliamentary system.
- In a Cabinet system of government, individual ministers are responsible for actions and decisions within their ministries. Civil servants may make certain decisions on behalf of the government. In this case, the Governor, as the constitutional head of the state, appoints or removes individuals based on the aid and advice of the ministers. Therefore, appointments and removals in the Subordinate Judicial Service, being executive actions, should be carried out with the aid and advice of ministers by the Governor.
- The court also noted that if a probationary employee's conduct is such that it may lead to dismissal, an inquiry may not always be necessary. However, if a probationer faces an inquiry on charges of misconduct or corruption and their services are terminated without following the provisions of Article 311(2), they can claim protection under the law.
- Ultimately, the court held that the orders of termination were in violation of the law, and authorities should have assessed the suitability of the appellants. The order of termination of one of the appellants was set aside.