K. H. Phadnis v. State of Maharashtra

Ray, J.-This is an appeaJ by special leave from the judg-ment dated 30 June, 1966 and 4 and 5 July, 1966 of the High Court at Bombay reversing the judgment of the learned Single Judge dated 29 October, 1963.

The only question in this appeal is whether the order of the Government of Bombay dated 8 May, 1962 "repatriating" the appellant from the temporary post of Controller of Foodgrains Depa·rtment, Bombay to his parent Department of Excise and Prohibition amounted to a reduction in rank in violation of the provisions contained in Article 311 of the Constitution.

The appellant joined service as Sub-Inspector of Excise in the Excise and Prohibition Department of the Government of Bombay in the year 1938. He was thereafter selected for trans-fer to the Bombay City Police Department. In 1942 he was sent on "deputation" to the Civil Supplies Department as an Inspector. He continued to work in that department up to the month of February, 1955. By February, 1955 he had by various promo-tions become Rationing Officer which was a gazetted post and he was then drawing a salary of Rs. 530 p. m. in the grade of Rs. 350-20-550. fo 1955 there was decontrol of foodgrains. The post was abolished. The appellant was reverted to the ExciSe Department. In course of time he was promoted to the post of District Inspector in the Excise Department in · the grade of salary of Rs. 220-10-300. In 1957, the Government of Bombay again introduced the system of distribution of foodgrains on the basis of household cards. The appellant in view of his record of service in the Civil Supplies Department was asked to go on "deputation" in the Agriculture and Forests Department as a Sub-ll)spector under the Controller of Foodgrains Distributon, Bombav. Jn 1960, the appellant was appointed to a temporary po.•t ~f Controller of Foodgrains Distribution, Bombay in the grade of Rs. 475-25-600-50-750. In 1961 the appellant was drawing a salary of Rs. 500 p. m. as a Controller of Foodgrains Distribu-tion.

120 SUPIU!llll COUJ.T lll!PollTS [1971] SUPP. s.c.ll.

The llppeilant married his daughter in the month of Decem-ber, 1961. The appellant's daughter, a qualified doctor, was then working aa a Resident Medical Officer in the Bombay Muni-cipal Corporation. The appellant was asked by the Director ?f Civil Supplie.ll in the montbJ of January to March, 1962 partly m writing and partly orally first whether he had forced his peons to do menial work at the marriage of his daughter, secondly, if he had taken cash and gifts from Fair Price Shop-owners ; and. thirdly, whether he had forced the staff to contribute in cash for the marriage of his daughter. The appellant denied these allega-tions. Thereafter, the Secretary to the Government of Maharash-tra. Agriculture and Fore.llts Department told the appellant in the month of April, 1962 that there were complaints against him and that "there could be no 11moke without fire", and the appellant would be "repatriated" to the Prohibition and Excise Department. The Minister of Civil Supplies in the month of April, 1962 visited the appellant'i; office and llaid that there were. complaints against him. The appellant requested a thorough enquiry in connection with such complaints. Subliequent to the visit of the Minister, an Inspector of Police of the Anti-corruption Branch took posses-Ilion of liCVeral files of various fair price i;hop-keepers for scrutiny.

Thereafter, the Government of Bombay by a resolution dated 8 May, 1962 directed that the appellant who was "on deputation from the Excise and Prohibition Department should be repatriated to his parent department with immediate effect". The appellant was asked to hand over charge and the appellant was posted by the Director of Excise and Prohibition in the Office of Officiating Inspector in his Department.

In the month of July, 1962 the appellant came to know that the Anti-corruption Branch of the Police submitted a report to the Government and the appellant was found to be exonerated from all charges. The appellant made a representation to the Gov-ernment bringing the said fact to the notice of the relevant autho-rities and requested for appointment to the post of Controller of Foodgrains. The Government did not send him any reply to the appellant'i; representation.

The appellant contended that the resolution was in the nature of punishment by way of reduction in rank in violation of the provisions contained in Article 311 of the Constitution and made an application under Article 226 of the Constitution impeaching the order of reversion as an action of punishment taken on false reports without waiting for the investigation by the police to be complete.

The learned Single Judgo of the Bombay lffsh Court held that the order ot 8 May. 1962 was an act ot punishment and reduc-tion in rank. The Division Bench of the Bombay High Court reversed that judgment and held that the appellant had no legal right to the post in the Department of Agriculture and Forests and therefore his reversion was not a punishment.

This Court in Parshotam Lal Dhingra v. Union of India (') laid down three propositions ; First, Article 311 makes no distinc-tion between permanent and temporary members of the iervices or between persons holding permanent or temporary posts and aa'.ords protection to both classes of servants; secondly, if a Govern-ment servant has no right to the particular rank his reduction from an officiating higher rank to his substantive lower rank will not by itself be a punishment ; and, thirdly, the mere fact that the sccvant has no title to the post or the rank and the Government has by contract, express or implied or under the rules governing the conditions of his service, the right to reduce him to a lower post does not mean that the order of reduction of a servant to a lower post or rank cannot in any circumstance be a punishment.

In determining whether the reduction is or is not by way of punishment it has to be found out if the order entails or provides for the forfeiture of his pay or allowances or the loss of his senio-rity in his substantive rank or the stoppage or postponement of his future chances of promotion, or that irr truth and reality the Government has passed the order as and by way of penalty.

In applying these principles Dhingra's(') case laid down two tests; first, whether the servant had right to the post or the rank, or, secondly, whether he has been: visited with evil conse-quences of the kind mentioned in that decision.

This Court in Sukhbans Singh v. State of Punjab(') in dealing with the question: as to whether a probationer has any right to hold the post said that. it would not be correct to say that a probationer has a right to the higher post in which he is officiating or a right to be confirmed, but a probationer could not be punished for mis-conduct without complying with the requirements of Article 31 \. The appellant in that case was recruited as Tehsildar in 1936. He was thereafter selected by the Purrjab Public Service Commission and appointed as an Extra Assistant Commissioner on probation in 1945. On 20 May, 1952 he was reverted to his substantive post of Tehsildar. He asked for the grounds of reversion. He was denied the same. This Court held on the facts that the Government wanted to punish him for what it thought was mis- . conduct and therefore reverted hjm. Thus, reversion by way of punishment without complying with the provisions of Article 311 <lallllOt be Sustained.

(I) (1958] s. c. R. 828 (2) [1963] l s. c. R. 416

In the recent unreported decision in Appar Apar Singh v. The State of Punjab & Ors.(') the question for consideration was whether an order reverting the appellant in that case from a p06t in Class I service in which he was officiating to his substantive post in Qass II amounted to reduction in rank. The appellant was employed in the Punjab Education Service Class II. He was promoted to Class I on an officiating post as Principal of the Government College, Muktsar. He had trouble with the mem-bers of the staff. The appellant as Principal of the College in. reading the annual report made certain aspersions against some members of the teaching staff. Thereafter, an enquiry was made pursuant to the demand of some of the parents of the students. Two Deputy Directors made· an enquiry. At that enquiry the appellant was neither given copies of statements recorded nor was he allowed to cross-examine the witnesses. The State contended that it was a preliminary confidential enquiry into the affairs of the College and that the appellam had no right to continue in Class I appointment where he was only officiating. The High Court held that the order of reversion was not by way of punish· ment but only because the person reverted was not found suitable to hold the post and an enquiry was only to find out the state of affairs of the normal functioning of the College. This Court held that the enquiry by the Deputy Directors was to investigate alle· gations against the Principal and the Deputy Directors recommend-ed exemplary punishment. Therefore the order amounted to re· duction in rank and as no enquiry regarding disciplinary proceed· ings was held, the order was in violation of the provisions of Article 31 I.

The most pre-eminent features which accentuate the order of reversion to be in the nature of punishment in the present case are these; The appellant was faced with certain charges of receiving money and gifts at the time of the marriage of his daughter. The appellant denied the allegations. The Secretary to the Government virtually threatened to repatriate the appellant to his parent department. The Minister visited the office of the appellant. The Police conducted an enquiry. The appellant himself had asked for an enquiry. At the time of the passing of the order of reversion the appellant not only protested but also asked the Government to wait for the completion of the investiga-tion. The Government did not accede to that request. Subse-. quently, the investigation indicated that the appellant was· totally free from blame or taint.

The entire service record of the appellant showed that the appellant was chosen to go on "deputation" twice once in 1942 and' (I) Civil Appeal No. 2S of 1967 decided on 3·12·1970 again in 1957. From 1942 to 1955 he was in the Food Depart· ment and he was promoted from time to time. Between 1942 and 19 55 the appellant rose from the post of Permit Officer to that of Rationing Officer at the salary of Rs. 530 p. m. In 1955 the post was abolished. The appellant was reverted to his parent department. In his parent department the appellant was also promoted to the post of Inspector and thereafter District Inspector in the grade of Rs. 220-10-300. In 1957, the appellant was again sent on deputation to the Food Department. The appellant was chosen for his experience. Again, he received a promotion and increment in salary.

It is true that the post which the appellant held was a tem· porary one, but the post continued for several years. The indi· cations were that the post was practically of a quasi-permanent character. Th~ appellant was reverted neither because the. tem· porary post was abolished nor because he was found unsuttable to continue. The parent department of the appellant did not want him back.

The order of reversion simplii;iter will not amount to a reduc-tion in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administra· tion or beca.use of exigencies of service. A person holding a temporary post may draw a salary higher than that of bis subs· tantive post and when be is reverted to bis parent department the loss of salary cannot be said to have any penal consequence. Therefore though the Government bas right to revert a Govern-ment servant from the temporary post to a substantive post, the matter bas to be viewed as one of substance and all relevant fac-tors are to be considered hr ascertaining whether the order is a genuine one of "accident of service" in which a person sent from ~e substantive post to a temporary post has to go back to the parent post without an aspersion against bis character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other band, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punish· ment, Article 311 will be attracted.

In the present case, the facts and circumstances to which reference has already been made bring out in bold 'relief that the order of reversion was in the nature of punishment: The order was not in compliance with the provisions of the Constitution. 124 SUPR.EID! couar REPORTS [1971] SUPP. s.c.R.

For these reasons, we arc of opinion that the learned Single Judge was correct in his judgment. The appeal is allowed. The Bench decision of the Bombay High Court is 1et aside and the judgment of the learned Single Judge i! restored. The appellant will be entitled to costs in this Court

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of 1967.

Appeal from the Judgment and order dated June 30, 1966, July 4, 1966 and. July 5, 1966 of the Bombay High Court in Appeal No. 111 of 1963.

R. K. Garg, S. C. Agarwala, D. P. Singh, V. J. Francis and R. K. Jain, for the Appellant.

V. S. Desai and S. P. Nayar, for the respondent.