03 December 1970
Supreme Court







DATE OF JUDGMENT: 03/12/1970


ACT: Constitution of India-Article 311-Civil Service-Enquiry into allegation  by  principal against members  of  college-After enquiry  principal  reverted  to  his  substantive   rank-If article attracted.

HEADNOTE: The  appellant,  a member of the  Punjab  Education  Service Class  II was promoted to Class I service on an  officiating basis and thereafter appointed Principal of the College.  K, a  member  of the College staff,  made  certain  allegations against  him  at a public meeting.  An inquiry was  held  to investigate  into  the  allegations made  by  the  appellant against  some members of the staff and the allegations  made by  K against the appellant and also the conduct of  K.  The evidence  recorded at the enquiry was not disclosed  to  the appellant nor was he allowed to cross-examine any witnesses. The finding at the enquiry was against the appellant, and K. K was dismissed from service.  The appellant was reverted to his substantive rank.  The appellant filed a petition  under Article  226  of the Constitution of India  challenging  his reversion.  The Government defended the order on the grounds that  the appellant was only in an officiating post that  no enquiry  was  held  up on his conduct and  the  enquiry  was directed  against K and only to find out the suitability  of the   appellant’s   continuation  as  Principal,   that   no departmental enquiry as envisaged by Article 311(2) was made against  the appellant before his reversion was ordered  and therefore  the  finding  recorded at the  enquiry  may  have operated  only  as a motive for the government to  pass  the order   of   reversion,  and  that  the  order   under   the circumstanced  could  not  be considered to  be  by  way  of punishment. HELD  : The order was one reducing the rank of appellant  by way of punishment.  As it was passed in violation of Article 311(2) of the constitution the order must be set aside. Officiating  and  temporary  Government  servants  are  also entitled to the protection of Art. 311(2) in the same manner as  permanent Government servants, if the  Government  takes action  against them by meeting out one of the  punishments, i.e.,    dismissal,   removal   or   reduction   in    rank. Notwithstanding  the fact that the appellant was  in  P.E.S. Class I only officiating, be was entitled to invoke  Article 311(2)  if  he  was  able to establish  that  the  order  of reversion  was by way of punishment and that it amounted  to reducing-him in rank. [903 G]



The enquiry was not conducted with a view to finding out the suitability or otherwise of the appellant to be continued as Principal.   On the other hand, the inquiry was held with  a view  to  investigate  into  the  allegations  made  by  the Principal  against some of the members of the staff and  the allegations made by K against the appellant. The Government accepted the finding-recorded at the  enquiry as  well as the recommendation to impose punishment  against the appellant and                             891 it  was  on the basis of such acceptance that the  order  of reversion was. passed.  No doubt, the order by itself and on the  face of it was innocuous, but, the finding recorded  at the enquiry against the appellant and its, recommendation to impose   punishment  upon  the  appellant  were   the   very foundation  for the government passing the  order  reverting the  appellant from P.E.S. Class I to P.E.S. Class II.  [905 F] Parshotam Lal Dhingra v. Union of India, [1958] S.C.R.  828, Champaklal Chimanlal Shah v. Union of India, [1964] 5 S.C.R. 190,  State  of Punjab v. Shri Sukh Raj  Bahadur,  [1968]  3 S.C.R.  234,  State of Orissa v. Ram Narain Das,  [1961],  1 S.C.R.  606, Jagdish Mitter v. Union of India,  A.I.R.  1964 S.C. 449 and State of Bihar v. Shiva Bhishuk Mishra,  [1971] 2 S.C.R. 191, referred to. Union  of India v. R. S. Dhaba, 1969 3 Supreme  Court  Cases 603distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of 1967. Appeal  by special leave from the judgment and  order  dated July  21,  1966 of the Punjab High Court in  Letters  Patent Appeal No. 346 of 1965. R.   K.  Garg,  S. C. Agarwala and S. Chakravarty,  for  the appellant. Harbans Singh, for the respondents. The Judgment of the Court was delivered by Vaidialingam,  J.  The  sole point that  arises  for  consi- deration  in  this appeal by special leave  is  whether  the order dated April 26, 1964 passed by the Governor of  Punjab reverting  the appellant from the Punjab  Education  Service Class  I  (officiating  service)  to  the  Punjab  Education Service Class II with immediate effect, amounts to reduction in rank’ attracting them applicability of Art. 311(2) of the Constitution. The  appellant  when this order was  passed  was  Principal, Government College, Muktsar, and on reversion he was  posted as  Deputy  Inspector of Schools,  Agriculture,  Chandigarh. The learned Single Judge, who heard Civil Writ No. 1506  of, 1964 filed by the appellant to quash the said order, held by his judgment dated September 9, 1965 that the order  amounts to reduction  in rank’ of the appellant  and  quashed  the same.   On  appeal  by the State of  Punjab  and  two  other officers,  the Division Bench, by its order dated  July  21, 1966 in Letters Patent Appeal No. 346 of 1965 set aside  the order of the learned Single Judge and held that the impinged order  of reversion was not passed by way of punishment  and that  on  the  other  hand it  was  only  reversion  of  the appellant from his officiating post to his substantive  rank and that in consequence Art. 311(2) has no application. 892 The circumstances leading up to the passing of the  impinged order may be stated : The appellant having obtained in  1943



a degree of the Punjab University in Agriculture joined  the Education  Department  of the Punjab State  on  November  9, 1944,  as  teacher  in agriculture.  Later  on  he  obtained degrees of B.T., M.Ed., and M.A. He also got degree of basic education  as a nominee of the Punjab Government and he  was further nominated by the State Government in 1953 for higher studies  in  the  United States.  In  August  1954,  he  was selected  as  a Lecturer in Agriculture by  the  Subordinate Services Selection Board, Punjab and in 1955 he was selected for  promotion  to  P.E.S. Class II  by  the  State  Service Commission.   In  September 1960 he was promoted  to  P.E.S. Class  I on an officiating basis and on May 9, 1963  he  was appointed Principal of the Government College, Muktsar. It  is  seen from the records that the  appellant  had  some trouble  with  the members of the staff and  in  consequence reports  had  been  sent to his superiors  who  advised  the appellant  to  act tactfully.  The appellant  was  later  on invited to meet the superior officers at Chandigarh and  he was appraised of the complaints received about him, but  his request  to have the names of the complainants  divulged  to him and also to go through the complaints said to have  been received  and  to be furnished with the copies of  the  same were all rejected by the authorities.  The appellant appears to have been advised to proceed on leave, but he declined to accede  to  the request of the authorities.  Later on  the appellant  made  a  request to the  second  respondent,  the Director  of  Public  Instruction, Punjab to  come  over  to Chandigarh and visit the institution to enable him to have a personal  knowledge about the working of the  college.   The second respondent accordingly presided over the annual prize distribution  function in the College on February 26,  1964. When  the appellant was reading the College’s annual  report in which certain aspersions had been made as against some of the  members of the teaching staff, Prof.  S. C. Kapur  (who was  one  of the professor in the College)  interrupted  the proceedings  and remarked " what about those principals  who come drunk to the stage and do make up of the girls".   This incident led to some commotion and one of the parents of the students  demanded  an  inquiry  into  the  allegations   of misconduct  made against the appellant by Professor  Kapoor. According   to  the  appellant,  the  Director   of   Public Instruction, Mr. Sharma then and there assured the appellant that an inquiry will be made promptly by two senior officers and  action  would  be taken to punish  the  guilty  persons whether  they belong to Class I or Class II.  But  according to the second respondent no such assurance attributed to him was 893 made then.  But there is no controversy that an inquiry  was demanded by some of the parents of the students and that the second respondent promised to depute two senior officers for that purpose.  Accordingly the second respondent deputed two Deputy   Directors,  namely,  Sri  Harbans  Singh  and   Sri Govardhan  Lal  to make an inquiry into the affairs  of  the College.   The  points  that  required  investigation   were formulated by these two Inquiry Officers as follows :               (1)   Were  the  allegations levelled  by  the               Principal  in  his report true in  respect  to               some members of the Staff ?               (2)   Was  it proper for the Principal to  say               all this in public meeting ?               (3)   Were the allegations levelled by Shri S.               C. Kapur true ?               (4)   Was  it proper for Shri S. C.  Kapur  to               say  this during the annual function  presided



             over  by the D.P.I. and attended by  Publicmen               besides students and staff ?               (5)   The  effect of all, this on the  general               public   mind  particularly   their   reaction               towards  sending  of their  daughters  to  the               colleges.               (6)   The remedial measures to restore in  the               College   a  normal  and  healthy   atmosphere               conducive to academic pursuits."               The  said  two  officers  made  inquiries,  in               respect of these matters from various  persons               including  the  appellant and arrived  at  the               following conclusions :               "(1) The allegations levelled by the Principal               against the members of the staff in his report               are not borne out by facts.               (2)   The  Principal’s  remarks  were   highly               offensive  and  were quite  misplaced  in  the               annual    report.    He   could   have    sent               confidential  reports against  his  colleagues               but to criticise them in public before parents               and  the general body of students  was  highly               improper and was in very bad taste.               (3)   The  allegations levelled by Sri  S.  C.               Kapur  in regard to the Principal having  come               to the stage drunk and having done make-up  of               the girls have been corroborated by the  girls               themselves and by the members of the staff who               were pre-               894               sent on the stage except one whose  reluctance               to  say anything against the Principal can  be               easily understood.               (4)   The  conduct  of Shri S.  C.  Kapur  was               subversive  of  all discipline.  It  was  most               improper for him to have acted in such a  rude               manner.   He has shown himself in  capable  of               any self-restraint and has set a bad  example.               It  will not be out of place to  mention  here               that he was transferred from G. C. Ludhiana as               he  had  fallen  out  with  the  Head  of  his               Department there.  Such a person cannot have a               salutary influence on the students."               At this stage it may be mentioned that  during               the  inquiry  conducted  by  the  two   Deputy               Directors, the appellant appears to have been               very reluctant to give answers regarding  some               of  the  points in the questionnaire  as  they               were  directed against his conduct though  the               questionnaire itself was headed "Investigation               into  the conduct of Shri Satish Kapur".   But               nevertheless he   filed  a   very   lengthy               explanatory   statement  before  the   Inquiry               Officers  controverting the  allegations  made               against   him  and  giving  his  own   version               regarding those points.  We shall refer  later               to  the points raised in the questionnaire  as               also  to the nature of the answers_  given  by               the appellant.  He. has also protested against               the  :inquiry being conducted behind his  back               without  copies of the statements  being  made               available   to  him  and  without  his   being               furnished  an opportunity  of  cross-examining               those witnesses.  He has also attributed  bias               against  the Inquiry officers.  In the  report



             itself the Inquiry Officers had suggested  the               following remedial measures :               (a)   Shri  S.  C.  Kapur  deserves  exemplary               punishment   and   his  services   should   be               terminated  in  terms  of  his  conditions  of               service  on  giving  him  one  month’s  notice               without assigning any reason.               (b)   It is further understood that D.P.I.  is               separately  holding  a secret probe  into  the               conduct  of the Principal for  allegations  of               uncalled  for connections with a lady  teacher               with  whom  he carried  on  correspondence  at               personal  level  in  his  own  hand  writting,               through the Manager of the Punjabi Publishers,               Jullundur,  in  a most  objectionable  manner.               The  Principal  therefore,  also  needs   some               Exemplary Punishment without being called upon               to face a Regular Depart-                                    895               ment  Enquiry.   It will not be  desirable  to               conduct a formal Departmental enquiry into his               conduct in regard to the probe which D.P.I. is               already having and particularly so in  respect               of  incident pertaining to the make-up of  the               girl students in a drunken condition. Thus  it               is  clear  that the Principal deserves  to  be               given  some  exemplary punishment.  He  is  an               unconfirmed hand and in consultation with  the               Legal Remembrance steps may be taken to revert               this  officer  to  P.E.S.  Class  II   without               assigning   any   reason.   Immediately,   the               Principal   should   be  transferred   to   an               equivalent post at Headquarters to remove  the               impression  in the minds of the  Lecturers  or               even  the  public that  undesirable  Lecturers               were  able  to  get  the  Principal   demoted.               Separate   proceedings  should  be   initiated               against  the Principal in the mean  while  and               final  action taken later when  the  situation               has quietened out quite a bit so to avoid  any               kind of unsavoury reactions both in the  minds               of  the public at Muktsar and the students  of               the College as well as the teachers working in               that institution.               (c)               (d)               (e) The  learned  Judges before whom records had  been  produced have  noted  that as against the suggestion  of  the  Deputy Directors that steps may be taken to revert the appellant to P.E.S. Class II without assigning any reason, the  Competent Authority  had made the following note in the  margin  "This case should be referred to the L.R. for advice". As  against  the  suggestion  about  the  transfer  of   the Principal  (appellant) to avoid the impression in the  minds of  the  lecturers  or  even  the  public  that  undesirable lecturers  were  able  to get  the  Principal  demoted,  the Competent  Authority  has  again noted : "Not  yet.   To  be sorted out later".  As against the suggestion of the  Deputy Directors  to terminate the services of Prof.  S. C.  Kapur, the  Authority  had made the note : "Agreed".  There  is  no controversy that the services of Prof.  Kapur were  termina- ted  on  March 30, 1964 by giving him  one  month’s  notice. Shri  S. C. Kapur appears to have filed a writ petition  No. C.W.764  of  1964  challenging  the  order  terminating  his



services but the 896 said  writ petition was dismissed by the High Court on  July 28, 1964.               "Order of the Governor of Punjab.  Shri Appara               par   Singh,  P.E.S.  Class  I   (Officiating)               Principal,  Government  College,  Muktsar   is               reverted  in  P.E.S. Class II  with  immediate               effect  and is posted as Deputy  Inspector  of               Schools, Agriculture, Chandigarh vice Shri Man               Mohan Singh.               2.                Dated               Chandigarh the                28th April, 1964                Sd/  C. D. Kapur                Education Commissioner & Secretary to               Government, Punjab, Education                          Department.               No.  4788-Ed(1)-64/8284, dated Chandigarh  the               28th April, 1964.               A copy is forwarded to the               1.    Director of- Public Instruction, Punjab,               Chandigarh   for  information  and   necessary               action  with  reference to  the  communication               noted  in  the margin.  The personal  file  of               Shri  Apparapar  Singh is  returned  herewith.               Please acknowledge receipt.               2.    Accountant General, Punjab (GADVI) Simla               for information and necessary action.               3.    Circle  Education Officer,  Ambala,  for               information.                Sd/- Deputy Secretary.                for Education Commissioner & Secretary                to Government, Punjab, Education Department.               No. 4782-Ed(1)-64/8285-A, dated Chandigarh the               28th 29th April, 1964.               A  copy is forwarded to Shri Apparapar  Singh,               Principal,   Govt.   College,   Muktsar   for-               information and necessary action.               Sd/- Deputy Secretary               for  Education  Commissioner  &  Secretary  to               Government, Punjab, Education               Department." 897 The  appellant  filed the writ petition in  the  High  Court challenging  this order as contravening Art. 311(2)  of  the Constitution.   According  to  the  appellant  he  has  been "reduced  in rank" as a punishment without any  inquiry  and mala fide.  The appellant made a grievance that the evidence collected by the Inquiry Officers were not made available to him  nor was he given any opportunity to participate in  the inquiry and cross-examine the witnesses.  Though his conduct was  being inquired into, the evidence was collected  behind his back and a finding had been recorded against him on  the basis  of  such  materials of which he  had  no  opportunity either to scrutinise or controvert. The  appellant further alleged that though the order on  the face of it appears to be very innocuous having regard to the surrounding  circumstances attendant on the passing  of  the order, it is clear that it was one by way of punishment. The State did not dispute that the two Deputy Directors, who held the inquiry did not give any opportunity to the  appel- lants  is  accepted it will be, tantamount to  holding  that Digambe  the  accute controversy between these 2  sects  and



their  reluctance  ments were recorded from members  of  the staff, students and parents of the students of the  College. It  was  also  admitted that copies  of  the  statements  so recorded  were not furnished to the appellant and  that  he was also not allowed to cross-examine any witness.  But  the stand taken by the State was that it was totally unnecessary to allow the appellant to participate in the inquiry because it  was  not directed against him and that the  inquiry  was only a preliminary confidential inquiry into the affairs  of the College.  It was further averred on behalf of the  State that the appellant had no right to continue in P.E.S.  Class I  when  he was only officiating and that his  reversion  to P.E.S.  Class II, which was in the usual course,  cannot  be considered  to be a reduction in rank so as to attract  Art. 311(2) of the Constitution. The  State  has further averred that his  seniority  in  the substantive  post  of P.E.S. Class II nor  his  emoluments,- which he was entitled to draw in that grade were affected by the  order of reversion.  In short the State contended  that as no penal consequences flowed from the impunged order  and as  the appellant had no right to, the post of P.E.S.  Class 1,  the order of reversion does not amount to  reduction  in rank’ so as to attract Art. 311(2). The learned Single Judge has proceeded on the basis that the question whether the impunged order amounts to a reduction in rank’ so as to attract Art. 311(2) is to be considered 15-L694 Sup C 1/71 898 not  only by looking to the form of the order but  also  the surrounding circumstances attendant upon the passing of  the order.  He further took the view that the order on the  face of it appeared to be innocuous.  So he took into account the inquiry conducted by the two Deputy Directors, the nature,of the  questions  dealt  with by them,  the  allegations  made against  the appellant and the finding recorded in the  said report together with the recommendation that some punishment must  be  imposed upon the appellant.   The  learned  Single Judge did not accept the case of the State that the  inquiry was  only regarding the working of the institution.  On  the other hand, it was held that specific allegations were  made against the appellant and findings recorded against him  and that  it was on the basis of those findings that action  was taken  against  Prof.   Kapur  by  way  of  terminating  his services  by giving him one month’s notice and  against  the appellant by reverting him to P.E.S. Class II. Asit     was admitted that the inquiry had been conducted behind the back of  the  appellant without giving an opportunity to  him  to cross-examine  the witnesses, the learned Single Judge  held thatthe  inquiry proceedings were vitiated.  Having  regard to  all  the  attendant  circumstances,  the  learned  Judge finally held that the order of reduction was passed with the intention to inflict punishment on the appellant in view  of the  finding recorded against him in the inquiry by the  two Deputy  Directors.  It was further held that  the  innocuous form  which  the respondents gave to the impinged  order  in consultation with the Legal Remembrancer was merely a  cloak to  avoid the consequences of Art. 311(2) and amounts  to  a fraud  on  the  constitutional  guarantee  given  to   civil servants.  In view of  these findings recorded in favour  of the appellant, the learned Single Judge did not consider the second ground of attack levelled against the order that  the respondents  were  actuated  by malice,  official  bias  and influenced by extraneous considerations in passing the order of reversion.  In the end the learned Single Judge set aside the order of reverting the appellant to P.E.S. Class II.



The  Letters Patent Bench before whom the  State  challenged the  order  of  the learned Single Judge  has  accepted  the position  that from the file and the noting thereon,  it  is clear  that the findings recorded against the  appellant  in the  report  of  the two Deputy Directors  as  well  as  the remedies suggested by them in the main were accepted by  the Government  after  obtaining  the  advice  from  the   Legal Remembrancer.  The Division Bench has also held that it  was in  consequence of the acceptance by the Government  of  the findings  and suggestions contained in the report  that  the appellant  was  reverted to P.E.S. Class II.   The  Division Bench  has  taken the view that the  reversion  was  ordered because   the  appellant  was  found  unfit  to   hold   the responsible post of Principal 899 of  the  College.  In view of the  admitted  fact  that  the appellant’s emoluments, position and other rights in  P.E.S. Class  II  were not affected by the order of  reversion,  it cannot be held in this case that the impugned order is  one, which  can  be  construed  as reduction  in  rank’  of  the appellant attracting Art. 311(2).  It was further held  that the  reversion is not by way of punishment but only  because the  person  reverted was not found suitable.  to  hold  the post.   Ultimately the Letters Patent Bench held that  there was   no   inquiry  conducted  against  the   appellant   as contemplated by the relevant rules and there were no charges of  misconduct  levelled against the  appellant  which  were being  inquired into by the Deputy Directors.   The  inquiry conducted  by them was only to find out the actual state  of affairs  in  the  normal functioning  of  the  College.   No penalty  has  been imposed against the appellant as  he  was holding P.E.S. Class I post only on an officiating basis and it  was  open  to  the authorities  to  revert  him  to  his substantive post at any time.  Such reversion, according  to the  Division  Bench  in  this  case,  does  not  amount  to reduction  in rank’ so as to attract Art. 311 (2).  On  this reasoning  the Letters Patent Bench, held that the  impugned order  of reversion was not one passed by way of  punishment and in consequence set aside the order of the learned Single Judge and dismissed the appellant’s writ petition. Mr.  Garg,  learned counsel for the  appellant,  has  raised substantially  the same contentions that were argued  before the High Court, both before the learned Single Judge and the Letters  Patent  Bench.  The counsel urged that  though  the impugned  order  on  the  face of  it  appears  to  be  very innocuous, it is really an order imposing punishment on  the appellant  by way of reversion in view of the fact that  the very basis of the order was the acceptance by the Government of  the  findings  recorded against  the  appellant  in  the enquiry conducted by the two Deputy Directors.  If the order is  read  in the context in which it has  been  passed,  the irresistible  conclusion is that the Government intended  to impose a penalty by reverting the appellant to P.E.S.  Class II.   In particular the counsel stressed that  the  findings recorded  by the two Deputy Directors that  the  allegations against  the appellant that he had come to the  stage  drunk and  did the make up of the girls has been  corroborated  by the  girls  themselves  and  members  of  the  staff   whose statements had been recorded by them behind the back of  the appellant,  are of a very serious nature costing  reflection against  the character and conduct of the appellant.   These findings  were accepted by the Government and the  order  of reversion passed in consequence can only be construed as  an order imposing punishment.  To establish that the  appellant has suffered penal consequences, Mr., Garg pointed out, that



while  the  appellant was reverted to P.E.S. Class  II,  his juniors in the said class were retained in 900 P.E.S.  Class I and that in consequence it has  resulted  in the appellant’s losing his seniority even in P.E.S. Class II and the chances of appellant’s further promotion have become indefinite and a very remote possibility. Mr.  Harbans  Singh, learned counsel for the State,  on  the other hand, urged that the order of reversion is one  passed by the Government on the basis of the inquiry conducted into the  affairs of the College and as the Government felt  that the appellant was not suitable to be continued as Principal. No action for imposing punishment on the appellant has  been taken  by the State.  The counsel pointed out that the  very fact  that no charges were framed against the appellant  and no  inquiry  conducted according to the rules  clearly  show that  no  disciplinary  action; was  intended  to  be  taken against  the  appellant.   He  also  pointed  out  that  the appellant  was  only officiating in P.E.S. Class I  and  his reversion to P.E.S. Class II on the ground that he was found unsuitable to be the Principal is not reduction in rank’  so as  to  attract Art. 311(2).  The counsel also  pointed  out that in the P.E.S. Class II his seniority and the emoluments to  which  he  was  entitled, have  not  been  affected  and therefore  no penal consequences have resulted by the  order of reversion. After giving due consideration to the various aspects placed before  us  by  the learned counsel on both  sides  and  the reasons  given  by the Letters Patent Bench, we are  of  the opinion  that the impugned order, in the  circumstances,  is one  which amounts to ’ reduction in rank’ of the  appellant to  which  Art.  311(2) is attracted and  as  admittedly  no inquiry has been held as contemplated by the relevant  rules regarding  disciplinary  proceedings, the  Judgment  of  the Division Bench will have to be set aside. At the outset we may state that the learned Single Judge has taken the view that by allowing the juniors of the appellant to continue in P.E.S. Class I while reverting him to P. E.S. Class  II, it cannot be held that’ thereby  the  appellant’s seniority  has been affected.  We are not inclined to  agree with this view.  Loss of seniority established by virtue  of an  order may amount under certain circumstances to a  penal consequence   leading  to  an  inference  that   the   order challenged  is  one  imposed  by  way  of  punishment.    In paragraph 28 of the Writ Petition the appellant has  clearly stated that at the time of the passing of the impugned order as  many as nine persons were officiating in P.E.S. Class  I in  schools  and  instruction cadre  and  amongst  them  the appellants name appears at No. 5 in the seniority list.   He has  further stated that there were four persons  junior  to him who were still permitted to officiate in P.E.S. Class I. In  paragraph  28  of the return filed  by  the  State,  the averments  of  the appellant, referred to above,  have  been admitted.  The State, however, added that 901 the two officers who were senior to the appellant were still officiating  in P.E.S. Class I. Therefore, it is clear  from the  admission  of  the  State that on  the  date  when  the appellant  was  reverted  to P.E.S. Class II,  some  of  his juniors  in  that class Were allowed to continue  in  P.E.S. Class I. The  appellant’s  grievance  that  the  order   indefinitely postpones  any  chances  of promotion  in  future  has  been accepted  by  the  learned  Single  Judge.   In  fact   this grievance  has  been  relied on  as  evidencing  that  penal



consequence has resulted from the order.  The Letters Patent Bench  was also impressed by the circumstance that an  order reverting  a  person from the officiating  post,  unless  of course  it  is  due to the coming back  of  the  substantive incumbent  or  by reason of the post being  abolished,  does affect  the  chances  of a future promotion  of  the  person reverted.  But the Letters Patent Bench, as we have  already pointed  out, took the view that the impugned order  is  not one  by  way  of imposing any punishment.  It  may  also  be pointed  out that both the learned Single Judge as  well  as the  Letters  Patent  Bench  have  held  that  the  findings recorded  by the two Deputy Directors against the  appellant were  accepted  by  the  Government  and  that  it  was   in consequence  of such acceptance of those findings  that  the appellant  was reverted to P.E.S. Class II.   Therefore  the close connection between the findings recorded in the report against  the appellant and the order of reversion  has  been found  established  in  this  case.   Therefore,  the   only question whether the findings so accepted by the  Government operated only as a motive for passing the order of reversion or  whether  the report against the appellant was  the  very foundation  for passing the impugned order.   The  appellant admittedly  was  issued a questionnaire by  the  two  Deputy Directors  to  which  his  answers’  were  invited.    Those questions were as follows :-               "Investigation into the conduct of Shri Satish               Kapur.               Q.1  What did Shri Satish Kapur,  Lecturer               actually  do and say while the  Annual  report               was being read over by you-on 26-2-1964?               Q.2  Is  there any semblance of  truth  in               what Shri Kapur said about you at that time  ?               In any case give your comments on the  remarks               made  by  him  and  the  reasons  as  well  as               background  which promoted him to  adopt  this               objectionable course ?               Q.3 Were the remarks made by you in the annual               report   pertaining  to  the  staff   directed               against any particular member of the staff  of               your college ? If so please               902               give  some instances to support your view  and               you may as well quote the names of the persons               who  may  be able to substantiate  or  support               these  remarks to enable  disciplinary  action               being  taken against the concerned members  of               the staff.  "               Q.4  Please state why it was necessary  to               include these remarks against the staff in the               annual  report and why it was  not  considered               proper  to  mention all these matters  to  the               Director  in  a private  meeting  rather  than               raising these issues in a meeting open to  the               parents of the students and various public men               ?               Q.5 What are your suggestions for winning  the               confidence  of the public in  the  institution               which is a coeducational college ? There  is  also no dispute that the appellant filed  a  very lengthy   reply  to  these  questions   controverting   very strenuously  the allegations made against him.   Apart  from furnishing  an  explanation  to the  points  raised  in  the questionnaire  he has also given his own reasons as  to  why Shri Kapur in particular had a grievance against him.  We do not  think it necessary to elaborately refer to the  answers



furnished  by  him excepting to say that in respect  of  the very  serious allegation covered by question No. 2,  he  has denied  that  he ever drinks and has also  stated  that  the allegation  made by Prof.  Kapur against him was  absolutely false.   He  has very elaborately in his  reply  dealt  with question No. 2. It is not possible to accept the large proposition  advanced on behalf of the State that merely because the appellant was only officiating in P.E.S. Class II, the State had power  to revert  him. to his substantive post of P.E.S. Class II  and that  such  reversion  will  not  amount  to  reducing   the appellant  to a lower rank as by way of punishment.   As  to whether a particular order of reversion amounts to reduction in  rank’ by way of punishment cannot be decided  merely  on the  basis of the terms of the order but regard must be  had to the attendant circumstances also. It is well settled that officiating and temporary Government servants are also entitled to the protection of Art.  311(2) in the same manner as permanent Government servants, if  the Government  takes action against them by meting out  one  of the  punishments  i.e. dismissal, removal  or  reduction  in rank.  (Vide Parshotam Lal Dhingra v. Union of India(1)  and Champaklal  Chimanlal  Shah  v. The  Union  of  India)  (2). Notwithstanding  the fact that the appellant was  in  P.E.S. Class I only officiating, he will be entitled to invoke Art. 311(2) if he is able to establish that the (1) [1958] S.C.R. 828. (2) [1964] 5 S.C.R. 190 903 order  of  reversion  is by way of punishment  and  that  it amounts to reducing him in rink. After  a review of the case, law on the subject, this  Court In  State of Punjab and another v. Shri Sukh Rai  Bahadur(3) has annunciated the following propositions which have to be borne  in  mind in considering the grievance of  an  officer regarding violation of Art. 311(2).  Those propositions  are as follows :               "(1) The services of a temporary servant or  a               probationer can be terminated under the  rules               of his employment and such termination without               anything more would not attract the  operation               of Art. 311 of the Constitution.               (2)   The circumstances preceding or attendant               on  the order of termination of service  have,               to be examined in each case, the motive behind               it being immaterial.               (3)   If  the order visits the public  servant               with   any  evil  consequences  or  casts   an               aspersion against his character or  integrity,               it  must  be considered to be one  by  way  of               punishment,  no matter whether he was  a  mere               probationer or a temporary servant.               (d)   An  order of termination of  service  in               unexceptionable  form preceded by  an  enquiry               launched  by the superior authorities only  to               ascertain whether the public servant should be               retained  in  service, does  not  attract  the               operation of Art. 311 of the Constitution.               (5)   If  there be, a full-scale  departmental               enquiry envisaged by Art. 311 i.e. an  Enquiry               Officer   is   appointed,   a   charge   sheet               submitted,   explanation   called   for    and               considered,   any  order  of  termination   of               service  made  thereafter  will  attract   the               operation of the said article."



In  particular it will be noted from the above  propositions that  the  circumstances  preceding  or  attendant  on   the impugned order have to be examined in each case, the  motive behind  it  being  immaterial and if the  order  visits  the public  servant  with  any  evil  consequence,  it  must  be considered  to be one by way of punishment whether he was  a mere  probationer  or a temporary servant.  But it  is  also clear that an order passed after an enquiry is conducted  to ascertain  whether the public servant should be retained  in service  or  not,  does  not attract Att.  311  (2)  of  the Constitution. (3)  [1968] 3 S.C.R. 234 904 In  State of Orissa v. Ram Narain Das(1) this Court  having regard  to the particular circumstances attendant  upon  the enquiry  in  that case held that the order  discharging  the officer  therein, who was a probationer, following  upon  an enquiry to ascertain whether he should be confirmed or  not, was not an order passed by way of punishment. Similarly  in Jagdish Mitter v. The Union of  India(1)  this Court held that even before discharging a temporary  servant the superior authorities may have to determine the  question about  the suitability of the said temporary  servant  being continued in service and if such an enquiry limited to  the purpose  of  deciding  whether the said  officer  should  be continued  or  not, was held and on the basis of  his  being found  unsuitable  to be continued in service, an  order  of discharge  was  passed,  there is  no  element  of  punitive proceeding  in such an enquiry or in the order passed  as  a result  of  such  enquiry.  This  Court  further  held  that consideration  of  the motive operating in the mind  of  the authority  who  passed  the order had to  be  eliminated  in determining  the  character of the order of  termination  of services of a temporary servant.  It was also held that  the form  in  which  the  order  terminating  his  services  was expressed would not also be decisive. This  Court  has again in Champaklal Chimanlal Shah  v.  The Union  of India(2) held........ what is important to see  is what actually happened after this memorandum for the  courts are  not to go by the particular name given by a party to  a certain  proceeding  but are concerned with the  spirit  and substance of it in the light of what preceded and  succeeded it." From a review of the decisions cited above, it is clear that in order  to  find out whether an impugned  order  is  one passed by way of punishment, the form in which the order  is expressed is not decisive and the circumstances preceding or attendant on the order have to be examined in each case.  It is  also  clear that the motive behind the  passing  of  the order is of no consequence.  Whether penal consequences flow from  the order will have also to be  investigated.   Having due  regard  to the propositions annunciated,  we  will  now proceed  to  consider  whether the  impugned  order  can  be considered  to be one reducing the rank of the appellant  as by way of punishment.  If the State is able to establish its plea that the inquiry conducted by the two Deputy  Directors was only to find out the suitability of the appellant to  be continued  as  Principal  and that as he  was  found  to  be unsuitable  he  was  reverted,  then  the  order  cannot  be considered  to  be by way of punishment.   We  however  find considerable difficulty in (1)  [1061] 1 S.C.R. 606. (2) A.I.R. 1964 S.C. 449. (3)  [1964] 5 S.C.R. 190.                             905



accepting  this plea of the State.  From the facts given  by us in setting out the circumstances leading to the filing of the writ petition, it is clear that the inquiry conducted by the two Deputy Directors was not with a view to find out the suitability or otherwise of the appellant to be continued as Principal.   On the other hand, the inquiry was held with  a view  to  investigate  into  the  allegations  made  by  the Principal  against some of the members of the staff and  the allegations made by Prof.  Kapur against the appellant.   We have  already  referred to the questionnaire issued  to  the appellant  and also the points set for determination by  the Deputy Directors as also the findings recorded by them.   We have  already pointed out that one of the allegations  which were investigated by the Deputy Directors related to a  very serious matter, namely, the charge levelled by Prof.   Kapur against  the  Principal having come to the stage  drunk  and having done makeup of the girls.  We are not concerned  with the  validity  of  the  inquiry  conducted  by  the   Deputy Directors because it is admitted by the State that the  said inquiry  was  conducted exparte and behind the back  of  the appellant.   It has also been admitted that  the  statements recorded  by the Deputy Directors from various persons  were not  disclosed to the appellant and the latter had  also  no opportunity to cross-examine those witnesses.  But a finding was-recorded   by  the  Deputy  Directors  that   the   said allegation made against the Principal has been  corroborated by the girls themselves and by the members of the staff  who were  on  the stage.  The Deputy Directors  after  recording this finding against the appellant also recommended that the appellant  needs  "some exemplary punishment  without  being called  upon to face a regular departmental  enquiry".   The government  accepted the finding of the Deputy Directors  as well  as their recommendation to impose  punishment  against the appellant and it is on the basis of such acceptance that the  order of reversion was passed.  No doubt, the order  by itself and on the face of it is innocuous, but, in our view, the  finding  recorded by the Deputy Directors  against  the appellant and their recommendation to impose punishment upon the appellant are the very foundation for the government for passing the order reverting the appellant from P.E.S.  Class I to P.E.S. Class II. Considerable  stress  has been laid by  Mr.  Harbans  Singh, learned counsel for the State, that no departmental  inquiry as envisaged by Art. 311’(2) was made against the  appellant before  his reversion was ordered and therefore the  finding recorded by the Deputy Directors may have operated only as a motive  for the government to pass the order  of  reversion. The   counsel  urged  that  an  order  passed   under   such circumstances   cannot  be  considered  to  be  by  way   of punishment.   We  are  not  inclined  to  agree  with   this contention of Mr. Harbans Singh.  In Union of 906 India  and  other v. R. S. Dhaba(1) this Court had  to  deal with  a  case  of  an  officer  who  was  reverted  on   the recommendation of his superiors because of a large number of complaints the department had received against the officer’s integrity.   After consideration of the circumstances  under which the order was passed, this Court held that the  report of the superior officer must be considered to have  operated as a motive for passing the order of reversion and it cannot be  said  that the report was the very  foundation  for  the order of reversion.  This decision, in our opinion, does not assist the State in the case before us. We  may  point  out  that in The State  of  Bihar  v.  Shiva Bhikshuk   Mishra(2),  this  Court  had  to   consider   the



applicability of Art. 311(2) to an order of reversion passed on  the  recommendation of a superior officer.  In  view  of certain contemplated disciplinary proceedings an officer who was  officiating  in a higher rank was  recommended  by  his superior  officer  to be reverted to his  substantive  post. Accepting  the said recommendation, the competent  authority reverted the officer concerned.  The order was challenged on the  ground  that  it amounts to reducing the  rank  of  the officer concerned and as it has been passed in violation  of Art.  311 (2) it was illegal.  This Court held  that  though the order passed did not contain any express words of stigma attributed   to  the  conduct  of  the  officer   concerned, nevertheless   having   due   regard   to   the    attendant circumstances  under which it was passed, the order was  one passed  by way of punishment.  This Court further held  that as Art. 311(2) has been contravened the order is illegal and in consequence set aside the same.  This decision affords in our opinion a very close parallel to the case before us. It  was  not  the  case of the  State  before  us  that  the appellant  was reverted to his substantive post because  the officiating post which he held at the time of reversion i.e. P.E.S.  Class  II was abolished.  If that  was  so,  nothing further  remained  to be said because his  services  in  the officiating post would automatically come to an end when the post  itself comes to an end.  Again it was not the case  of the State that the appellant was reverted to his substantive post  because the permanent incumbent of the higher post  in which  the appellant was officiating had come back to  duty. It  was not even the case of the State that the higher  post was  created for a temporary period and that it had come  to an  end.  If any one of these circumstances had existed  one can very well say that the order reverting the appellant  to his  substantive  post  could not be said to be  by  way  of punishment.   On  the other hand the position was  that  the reversion   of  the  appellant  was  based   entirely   and- exclusively on the basis (1)  [1969] 3 S.C.C.603 (2)  [1971] 2 S.C.R. 191. 907 of  the adverse finding recorded against him by the  enquiry and the report itself formed the foundation for the order of reversion being passed. We  accordingly hold that the order dated April 26, 1964  is one reducing the rank of the appellant as a punishment.   As it  has  been  passed in violation of  Art.  311(2)  of  the Constitution that order has to be set aside. In  the result we allow the appeal, set aside  the  judgment and  order  of  the Division Bench dated July  21,  1966  in Letters,  Patent  Appeal  No. 346 of 1965  and  restore  the judgment  and  order  of  the  learned  Single  Judge  dated September  9, 1965 in Civil Writ Petition No. 1506 of  1964. The appellant will be entitled to his costs. Y.P.                 Appeal allowed 908