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PETITIONER: K.   H. PHADNIS

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT19/03/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) SHELAT, J.M. VAIDYIALINGAM, C.A. GROVER, A.N.

CITATION:  1971 AIR  998            1971 SCR  118  1971 SCC  (1) 790  CITATOR INFO :  F          1974 SC2192  (66)  RF         1981 SC 957  (6)  R          1986 SC1790  (9)  D          1988 SC1240  (7)

ACT: Civil   Servant--Holding   temporary   post--Reversion    to substantive post---When amounts to punishment and  violation of Art. 311, Constitution.

HEADNOTE: The  appellant  was repatriated from the  temporay  post  of Controller   of  Food  Grains  Department  to   his   parent department of Excise and Prohibition.  His record of service showed that he was chosen to go on deputation twice in  1942 and in 1957 and that he was chosen for his experience.   The record  also showed that he was promoted from time to  time. While holding the post of Controller, the Director of  Civil Supplies asked him about certain charges of receiving  money and  gifts at the time of the marriage of his  daughter  and that he forced his peons to do menial work at the  marriage. The  Secretary  to the Government  virtually  threatened  to repatriate  him to his parent department, and  the  Minister visited  ’,he  office of the appellant and said  there  were complaints against him.  The appellant asked for an  inquiry and  the  police conducted an  inquiry.   The  investigation indicated that the appellant was totally free from blame  or taint.  At the time of the passing of the order of reversion the appellant protested and asked the Government to wait for the  completion of the investigation but the Government  did not accede to the request. On   the  question  whether  there  was  violation  of   the provisions in Art. 311 of the Constitution, HELD:     The  facts  and circumstances bring  out  in  bold relief  that  the order of reversion was in  the  nature  of punishment  and  was  passed  without  complying  with   the provisions of the Constitution. [123H] The  post  which the appellant was holding was  a  temporary one,  but  the appellant was reverted  neither  because  the

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temporary  post was abolished nor because he was  unsuitable to  continue  nor  because  the  parent  department  of  the appellant  wanted him back.  A Government servant holding  a temporary post and having a lien on his substantive post may be  sent back to the substantive post in  ordinary   routine administration or because of exigencies of  service.  Such a person  may have been drawing a salary higher than  that  of his  substantive post but when he is reverted to the  parent department  the  loss of salary cannot be said to  have  any penal  consequences.  The matter has to be viewed as one  of substance and all relevant factors have to be considered  in ascertaining whether the order is a genuine one of  accident of service in which a person sent from the substantive  post to  a  temporary  post has to go back  to  the  parent  post without any aspersion against his character or integrity, or whether the order amounts to, a reduction in rank by way  of punishment. [123C-G] Parshotam  Lal Dhinera v. Union of India [1958] S.C.R.  828; Sukhbans  Singh v. State of Punjab,[1963] 1 S.C.R.  416  and Appar Apar Singh v. The State of Punjab, C.A. No. 25/67  dt. 3_ 12-1970, followed. 119

JUDGMENT: 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. 1 1 1 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. The Judgment of the Court was delivered by Ray, J.-This is an appeal by special leave from the judgment 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  Department, 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 transfer  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  promotions  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.   In  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 SubInspector    under   the   Controller    of    Foodgrains

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Distribution, Bombay.  In 1960, the appellant was  appointed to   a   temporary   post  of   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 Distribution. 120 The appellant married his daughter in the month of  December 1961.   The  appellant’s daughter, a qualified  doctor,  was then  working  as a Resident Medical Officer in  the  Bombay Municipal  Corporation.   The  appellant was  asked  by  the Director  of  Civil  Supplies in the months  of  January  to March,  1962  partly  in writing  and  partly  orally  first whether  he  had forced his peons to do menial work  at  the marriage  of his daughter, secondly, it ,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 allegations.  Thereafter, the Secretary to the Government of Maharashtra,  Agriculture  and Forests Department  told  the appellant  in  the  month of April,  1962  that  there  were complaints  against  him and that "there could be  no  smoke 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’s  office  and  said that  there  were  complaints against him.  The appellant requested a thorough enquiry  in connection with such complaints.  Subsequent to the visit of the Minister, an Inspector of Police of the  Anti-corruption Branch  took  possession of several files  of  various  fair price shop-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 Government bringing the said fact  to the  notice  of the relevant authorities and  requested  for appointment  to the post of Controller of  Foodgrains.   The Government  did  not send him any reply to  the  appellant’s 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 Judge of the Bombay High Court held  that the order of 8 May, 1962 was an act of punishment and reduc- tion in rank.  The Division Bench of the Bombay High Court 121 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  (1) laid  down three propositions; First, Article 311  makes  no distinction  between permanent and temporary members of  the services  or between persons holding permanent or  temporary

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posts  and affords protection to both classes  of  servants; secondly,  if  a  Government 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  servant 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  seniority  in his  substantive  rank  or  the stoppage or postponement of his future chances of promotion, or  that in truth and reality the Government has passed  the order as and by way of penalty. In applying these principles Dhingra’s(1) 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 consequences of the kind, mentioned in that decision. This  Court  in  Sukhbans Singh v.  State  of  Punjab(1)  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  misconduct  without complying  with  the  requirements  of  Article  311.    The appellant  in that case was recruited as Tehsildar in  1936. He  was  thereafter selected by the  Punjab  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 misconduct and therefore reverted him.  Thus, reversion  by way of punishment without complying  with  the provisions of Article 311 can-not be sustained. (1) [1958] S. C. R. 828 (2) [1963] 1 S. C. R. 416 122 In the recent unreported decision in Appar Apar Singh v. The State  of Punjab & Ors.0 the question for consideration  was whether an order reverting the appellant in that case from a post  in Class I service in which he was officiating to  his substantive post in Class 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 members 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 appellant 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 punishment 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

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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 recommended  exemplary  punishment.   Therefore  the   order amounted  to reduction in rank and as no  enquiry  regarding disciplinary   proceedings  was  held,  the  order  was   in violation of the provisions of Article 31 1. The  most preeminent 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. Subsequently, 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 (1)civil Appeal No. 15 of 1947 decided on 3-12-1970. 123 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 1955 the appellant rose from the post of Permit  Officer to that of Rationing Officer at the salary of Rs. 530 p.  m. In  1955the 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 indications  were that the post was practically of a  quasi- permanent character.     The appellant was reverted  neither because the temporary post    was  abolished nor because  he was found unsuitable to continue.  The parent department  of the appellant did not want him back. The  order  of reversion simpliciter will not  amount  to  a reduction  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 administration or because of exigencies of  service. A  person holding a temporary post may draw a salary  higher than that of his substantive post and when he is reverted to his  parent department the loss of salary cannot be said  to have any penal consequence.  Therefore though the Government has right to revert a Government servant from the  temporary post  to a substantive post, the matter has to be viewed  as one  of  substance  and  all  relevant  factors  are  to  be considered  in ascertaining whether the order is  a  genuine one of "accident of service" in which a person sent from the substantive  post to a temporary post has to go back to  the parent  post without an aspersion against his  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 hand, if there is evidence that  the

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order of reversion is not "  a pure accident of service" but an  order in the nature of punishment, 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 For these reasons, we are 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 set aside and the  judgment of the learned Single Judge is restored.   The appellant will be entitled to costs in this Court. V.P.S.                 Appeal allowed. 125