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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: KISHAN DASS

DATE OF JUDGMENT19/01/1971

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. VAIDYIALINGAM, C.A.

CITATION:  1971 AIR  766            1971 SCR  (3) 389  1971 SCC  (1) 319  CITATOR INFO :  E          1984 SC 885  (23)

ACT: Constitution of India.  Art. 311-Forfeiture of past service- If amounts to reduction in rank.

HEADNOTE: Pursuant to certain charges against the respondent, a police constable,  his  entire service with permanent  effect  were forfeited,  which meant reducing his salary to the  starting point  in the time scale for constables.  An appeal  by  him before the Deputy Inspector General having failed, be  filed a  suit.  The trial court decreed the suit holding that  the order amounted to reduction in rank, therefore, Art.  311(2) of  the  Constitution  was attracted and as  no  show  cause notice was served before the order was passed, the order was vitiated and was bad.  The decree was affirmed by the  first appellate court and thereafter in second appeal by the  High Court.  Allowing the appeal by the State, this Court, HELD : The expression "reduction in rank" in Art. 311(2) has to be construed according to the well-established meaning it has acquired, as in ’the case of the other two  expressions, namely, ’dismissal’ and ’removal’ in that Article, under the various  service  rules  and under the  provisions  in  that regard  in  the  Constitution Acts of 1915  and  1935.   The expression  "reduction in rank" in the  Article,  therefore, means  reduction from a higher to a lower rank or post  when imposed  as a penalty.  Therefore, an order  forfeiting  the past   service  which  has  earned  a   Government   servant increments  in the post or rank he holds, howsoever  adverse it  is to him, affecting his seniority within the rank  to which  he belongs or his future chances or  promotion,  does not  attract  the  Article.   His  remedy,  therefore,   .is confined to the rules of service governing his post. [397 E] High Court, Calcutta v. Amal Kumar Roy, [1963] 1 S.C.R.  437 and  Shitla  S. Shrivastava v. North Eastern Rly.  [1963]  3 S.C.R. 61, followed. Parshotam Lal Dhingra v. Union of India, [1958] S.C.R.  828. disapproved. Rupnarain  Singh, State of Orissa, A.I.R. 1959, Orissa  167, P.  C.  Wadhwa v. Union of India, [1964] 4  S.C.R.  598  and Dubesh Chandra Das v.    Union  of India, A.I.R.  1970  S.C.

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77, distinguished. Shri Madhav Laxman Vaikunthe v. State of Mysore’  [1962]  1 S.C.R.  886 and Afzalur Rahman v. Emperor, A.I.R. 1943  F.C. 18, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 359 of 1967. Appeal  by special leave from the judgment and  order  dated July  29, 1966 of the Punjab High Court in Civil Misc.   No. 1144-C  of 1966 in Regular Second Appeal No. 340 of 1966. V.   C. Mahajan, for the appellant. A.   N. Nag, for the respondent. 390 The Judgment of the Court was delivered by Shelat,  J.  The  respondent was at  all  material  times  a constable  in  the Punjab Police Service and was  posted  at Ambala.  In November 1960, he was served with a charge sheet attributing  to him arrogance towards his superior  officers and  indiscipline.   A departmental enquiry  was  admittedly held in accordance with the procedure laid down therefor  in the Punjab Police Rules, 1934.  The said charges having been held  to have been proved, an order followed forfeiting  his entire  service with permanent effect.  This meant  bringing down  his salary to Rs. 45/- per month, which would  be  the salary  payable to a constable at the staring point  of  his service.  An appeal by him before the Deputy Inspector-Gene- ral  having  failed, he tiled a suit in the  Court  of  Sub- Judge,, Ambala. The  suit was on the basis that- the said order amounted  to reduction  in  rank,  that therefore,  Art.  311(2)  of  the Constitution  was  attracted and that no show  cause  notice against  the action proposed against him having been  served upon  him  before the said order was passed, the  order  was vitiated  and  was  bad.   The  Trial  Court  accepted  this contention   and  decreed  the  suit.   An  Appeal  by   the appellant-State  failed  as the District Judge,  relying  on Rupnarain  Singh  v. State of Orissa(1) held that  the  said order  amounted to reduction in rank and the respondent  was therefore entitled to the procedural safeguards laid down in Art.  311(2).  A second appeal by the State before the  High Court was summarily rejected.  Hence this appeal founded  on special leave granted by this Court. The  only  question arising in this appeal,  the  facts  not being   in   dispute, is whether  the  order  forfeiting-the respondent’s service, which meant reducing his salary to the starting point in the time scale for constables, amounted to reduction  in rank within the, meaning of Art. 311(2).   The respondent being a constable., there was no question of  his being reduced from a higher post or rank to a lower post  or rank.   The  order,  nonetheless,  reduced  the   emoluments received by him as it deprived him of the increments  earned by  him as a result of the approved service, he had put  in, having been forfeited.  It also affected his seniority,  and therefore,  chances of promotion.  The question is,  whether for that reason the order is tantamount to reduction in rank attracting, Art. 311(2). Rule 1.13 of he Punjab Police Service Rules (hereinafter re- ferred  to  as the Rules) provides that  a  gazetted  police officer’, means a police officer appointed under s. 4 of Act V of 1861. (1)  A.T.R. 1959 Orissa 107. 391 and  includes  the  Inspector  General,  Deputy  Inspectors-

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General,   Assistant  Inspectors-General,   Superintendents, Assistant  Superintendents and Deputy Superintendents.   The expression  "enrolled police officer" means police  officers appointed   under  s.  7  of  the  said  Act  and   includes inspectors,   sergeants,   sub-inspectors,   asistant   sub- inspectors, head constables and constables.  The  expression "upper subordinate" includes all enrolled police officer  of and  above  the  rank of assistant  sub-inspector,  and  the expression  "lower subordinate" includes all other  enrolled police  officers.  There is thus a hierarchy in  the  Police Service of the State comprised of several posts, the post of a  constable being the last rung in the ladder.  Rule  13.1, which deals with promotion of police officers from one  rank to another, provides that- such promotions from one rank  to another and from one grade to another in the same rank shall be  made by selection tampered by seniority. Cl. 3  of  that rule  lays down that for purposes of  regulating  promotion. amongst enrolled police officers, six promotion lists, A, B, C, D, E and F should be maintained.  Lists A, B, C and D are meant  to  regulate  promotion to  the  selection  grade  of constables and to the ranks of head constables and assistant sub-inspectors.   List E regulates promotion to the rank  of sub-inspector and List F regulates promotion to the rank  of Inspector.  Rule 13.5 deals with promotion of constables  to selection  grade  and r. 13.6 provides that a  list,  called List A, shall be maintained by each Superintendent of Police of  constables eligible under r. 13.5 for promotion  to  the selection  grade  of constables.  Rule 13.7 provides  for  a list,  called  List  B,  divided  into  two  parts,  namely, selection grade constables considered suitable as candidates for  the Lower School course at the Police Training  School, and constables, selection or time-scale, considered suitable for  drill and other special courses at the Police  Training School.   Rule 13.8 lays down that promotion to the post  of head  constable has to be made in accordance with  principle described  in sub-rules (1) and (2) of r. 13.1. Rule  13.8-A provides that infliction of any major punishment would be  a bar  to admission to or retention in lists A, B or  C.  Rule 16.1  lays down diverse punishments which can be awarded  to members  of  the service in accordance with  the  provisions contained  in  these Rules.  These punishments  are  :  (1) dismissal,  (2)  reduction,  (3) stoppage  of  increment  or forfeiture  of approved service for increment, (4) entry  of censure,  (5)  confinement  to, quarters for  a  period  not exceeding 15 days, (6) extra guards. fatigue or other  duty, and punishment drill for certain days.  Under r. 16.1(3),  a major   punishment  means  any  authorized   punishment   of reduction, withholding of increments, forfeiture of approved service,  dismissal  and  every  judicial  conviction  on  a criminal charge.  Rule 16.4 defines ’reduction’ and provides that  a  police officer may be reduced (a) to a  lower  rank (except in the case- 392 of  sergents and of constables on the time-scale), (b)  from the selection grade of a rank to the time scale of the  same rank,  (c)  if in a graded rank to a lower position  in  the seniority list of his grade or to a lower grade in his rank. Rule 16.5 provides that the increment of a police officer on a  time scale may be withheld as a punishment.  Cl.  (2)  of that  rule provides that approved service for increment  may be  forfeited, either temporarily or permanently,  and  such forfeiture  may entail either the deferment of an  increment or  increments or a reduction in pay.  It  further  provides that the order must state whether the forfeiture of approved service is to be permanent, or, if not, the period for which

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it has been forfeited.  Thus, under rules 16.4 and 16.5  the two punishments of reduction and forfeiture of service  are two   distinct  punishments.   Rule  16.24  lays  down   the procedure  to  be followed in departmental  enquiries.   Cl. (ix)  of that rule clearly provides that it is only  in  the case  of an order of dismissal or reduction in rank  that  a second  show  cause  notice  against  the,  proposed  action against a police officer has to be served before an order is passed  against  him.  Such a second show cause  notice  is, therefore,  not required to be served in the case  of  other major or minor punishments.  There is no dispute that in the present  case  the procedure laid down in  these  Rules  and applicable to the respondent was followed. The   contention,  however,  was  that  though   the   Rules distinguish the two punishments of reduction and  forfeiture of  service and treat them as distinct, there  were  certain decisions of this Court which have held that for an order to amount  to  reduction  in rank within the  meaning  of  Art. 311(2)  it  was  necessary that it must  actually  reduce  a government  servant from a higher to a lower post  or  rank, and that even if the order affected adversely his  seniority or chances of promotion within the rank or cadre to which he belongs, it would still constitute reduction in rank. Parshotam Lal Dhingra v. Union of India(1) was one such case on which counsel leaned heavily.  But the question there was whether  the  reversion of the the appellant from  Class  11 service, wherein he was at the relevant time officiating, to Class III service to which he permanently belonged, amounted to  punishment, and therefore, attracted Art.  311(2).   The decision  laid  down the principle that  reduction  in  rank would be punishment if it carried with it penal consequences and  that the two tests to be applied were (1)  whether  the servant  had the right to the post or Tank, and (2)  whether evil consequences, such as forfeiture of pay or  allowances, loss of seniority in his substantive rank, stoppage (1)  (1958) S.C.R. 828. 393 or post-ponement of future chances of promotion followed  as a  result of reduction in rank.  The appellant in that  case was  holding an officiating post and had therefore no  right under  the Railway Code to continue in it.  The  Court  held that  since  under  the general  law  such  appointment  was terminable  at any time on reasonable notice, the  reduction could  not operate as a forfeiture of any right, and  there- fore,  the order could not be said to have visited him  with any  evil consequences.  Consequently, it did not amount  to reduction  in rank by way of punishment.  The decision  also laid down that the words "dismissal", "removal" and  "reduc- tion in rank" used in Art. 311(2) were words of art,  having technical  meanings, they having been adopted  from  service rules  prevailing earlier, such as Classification  Rules  of 1920  and  1930, and having  therefore  acquired  well-known meanings.    Under  those  rules,  dismissal,  removal   and reduction  in rank were major punishments providing  special procedural protection.  On examination of the history of the service  rules,  s. 96B(i) of the Government of  India  Act, 1915, and s. 240 of the 1935 Act, the Court held that  "both at  the date of the commencement of the 1935 Act and of  our Constitution  the words "dismissed", "removed" and  "reduced in  rank", as used in the service rules, were--  well-under- stood as signifying or denoting the three major  punishments which  could  be  inflicted on  Government  servants".   The decision  concluded  that  "the principle  is  that  when  a servant  has right to a post or to a rank either  under  the terms of the contract of employment, express or implied,  or

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under the rules governing the conditions of his service, the termination  of  the  service  of  such  a  servant  or  the reduction  to  a lower post is by itself and prima  facie  a punishment, for if operates as a forfeiture of his right  to hold  post or that rank and to get the emoluments and  other benefits  attached  thereto".  The passage in  the  judgment emphasised before us was :               "A reduction in rank likewise may be by way of               punishment  or it may be an  innocuous  thing.               If  the  Government servant has a right  to  a               particular rank, than the very reduction  from               that  rank will operate as a penalty,  for  he               will  then lose the emoluments and  privileges               of that rank.  If, however, he has no right to               the  particular  rank, his reduction  from  an               officiating  higher  rank to  his  substantive               lower   rank   will  not   ordinarily   be   a               punishment.   But  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, the right  to               reduce him to a lower post does not mean  that               an order of reduction of a servant to a  lower               post or rank cannot in any circumstances be  a               punishment.   The  real test  for  determining               whether the reduction in such cases is               394               or is not by way of punishment is to find  out               if the order for the reduction also visits the               servant with any penal consequences." According  to  this decision, reduction in rank  within  the meaning  of Art. 311(2) means reduction from a higher  to  a lower rank or post in the hierarchy of the service to  which a  government  servant seeking protection  of  that  article belongs  and’ not reduction in the same rank,  e.g.,  losing places in seniority in the rank to which he belongs. Shri  Madhav  Laxman  Vaikunthe v. The  State  of  Mysore(1) another  decision  relied  on by counsel, was a  case  of  a Mamlatdar, officiating as a District Deputy Collector.   His reversion  from the officiating post to his  permanent  post was held to be punishment attracting Art. 311 (2).  This was a  clear case of reduction in rank as the reversion  brought down  the appellant from a higher to a lower post.   It  did not merely affect his seniority or the stage at which he was in  the time-scale to which he belonged in the hierarchy  of service. The  decision in point really is The High Court Calcutta  v. Amal  Kumar Roy(2) where the respondent, a Munsif,  was  ex- cluded by the High Court from consideration for the post  of a  Subordinate Judge for a year thereby depriving him  eight places  in  the  cadre of Subordinate  Judges  when  he  was appointed an Additional Subordinate Judge.  The respondent’s contention   was  ,that  such  an  exclusion   amounted   to withholding  of promotion or reduction in rank.   The  first part  of the contention was rejected on the ground  that  he had no right to promotion and the second on the ground  that deprivation,  of eight places in seniority in the same  rank did  not  constitute reduction in rank.  This  decision  was followed in Shitla S. Srivastava v. North Eastern Railway(1) where  it was held that the removal of the appellant’s  name from  a provisional panel of persons for  consideration  for higher  posts  did not attract Art. 311 (2) as  it  did  not amount  to  reduction  in rank.  The  Court  held  that  the expression "rank" in Art. 311(2) had reference to a person’s classification  and  not his particular place  in  the  same

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cadre in the heirarchy of the service to which he belongs. It  is thus clear that reduction in rank within the  meaning of  Art.  311(2), as the expression itself  suggests,  means reduction  from  a higher to a lower rank or  post  and  not merely  losing  places  in the rank or cadre  to  which  the Government servant belongs, and consequently, his  seniority within such cadre or rank. (1)  [1962] 1 S.C.R. 886. (3) [1966]3 S..C.R. 61. (2) [1963]1 S.C.R.437. 395 This  would be so, even if as a result of  the  Government’s action. he loses a higher salary or his chances of promotion to  a higher post are reduced.  For such action, the  remedy would  be  under the rules governing, the  service  and  not under  Art.  311(2)  as  such  action  does  not  amount  to reduction in rank as understood for the purposes of Art. 311 (2). Counsel for the respondent, however, argued that there  were other decisions which have held otherwise and assisted  him. P.  C.  Wadhwa v. Union of India(1) was  one  such  decision which,  he  thought,  assisted  him.   In  that  case,   the appellant  was officiating in the senior time-scale and  was posted  at  Ferozepore as an  Additional  Superintendent  of Police.   In July 1958, he was reverted to  his  substantive post.  The reason for the reversion was that he was tried as a  Superintendent  of Police and was found to  be  immature. The  record  showed that the reversion was not  due  to  the return  of the permanent incumbent from leave or  deputation or  for any other administrative reason and  other  officers junior  to him continued in the senior time-scale  while  he was reverted.  The record also revealed that an enquiry  was not  resorted  to only for the reason that it would  take  a long  time.  His contention in these circumstances was  that his  reversion  amounted  to reduction in  rank.   That  was accepted  because  it  would seem from the  facts  that  the reversion was from senior time-scale to junior time-scale of the service.  Though both the posts were cadre posts in  the Police  Service,  the  reversion was from the  post  of  the Additional  Superintendent  of Police to  one  of  Assistant Superintendent of Police, the former obviously being a  post higher than the latter.  Although both the posts were in the same  cadre, promotion from the junior to the  senior  time- scale  was  by  seniority.  It  is  clear,  therefore,  that appointment of one in the junior time-scale to a post in the senior time-scale was promotion, and therefore,  appointment to  a higher post.  Such is not, however, the  position,  in the instant case. Dubesh  Chandra Das v. Union of India (2) was another  deci- sion  relied upon by Mr. Nag.  The appellant there  was  the Chief  Secretary of Assam and a member of the  Indian  Civil Service.   He  was  appointed  a  Secretary  in  the   Union Government, a tenurepost, the tenure period of which was  to expire  in  July 1969.  In September 1966, he was  asked  to choose between reversion to the service of his parent  State or compulsory retirement.  He, complained against the  order by  a writ petition contending that the order was  a  stigma and  amounted to reduction in rank, which, therefore,  could not be passed without undergoing the procedure laid down  in Art. 311(2).  His appointment as the Secre- (1) [1964]4S.C.R.598. (2) A.I.R. 1070 S.C. 77. 396 tary  at the Centre was not by way of deputation but was  by way of appointment to a tenure post.  This Court held, on an

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examination  of  the  rules,  that  cadres  for  the  Indian Administrative Services were to be found in the States only, that there were no cadres in the Government of India, that a few  of them were, however, intended to serve at the  Centre and  when  they did so, they enjoyed better  emoluments  and better  status.  Such an appointment, the Court held,  meant promotion  to  a  higher post.  In  the  circumstances,  the -order  amounted to the appellant’s reduction from a  higher to  a  lesser  rank.   This, again, was  a  case  where  the government servant was reverted from a post higher than  the post  of the Chief Secretary, Assam, and not a reduction  in the  same  time-scale post or deprivation of places  in  the same   time-scale  post  thereby  adversely  affecting   his seniority therein or chances of    promotion. The decision of the High Court of Orissa in Rupnarain Singh v.   Orissa(1) would apparently assist the respondent,  for, the  impugned  order  there was similar to the  one  in  the instant case.  That order directed that the petitioner,  who was  then  serving as a forester, be reduced to  the  lowest scale of Rs. 50,1- in the, scale of pay of Rs. 50-2-70 fixed for  the foresters.  The High Court upheld’ the  contentions of the petitioner, viz., (1) that the order was  punishment, and  (2)  that it amounted to reduction in rank  within  the meaning of S. 240(3) of the 1935 Act and Art. 311(2).  These conclusions  were reached on two premises.  ’The  first  was that  r.  2  of the Bihar and  Orissa  Subordinate  Services Discipline  and Appeal Rules in cl. (iii) provided,  amongst others, the punishment of "reduction to a lower post or time scale or to a lower stage in the time-scale".  Following the decision in Afzalur Rahman v. Emperor(2) where the Court had observed that in construing s. 240 of the 1935 Act, the long standing service practice based on statutory rules in  force long  before  the passing of the 1935 Act,  and  which  were continued  in force by that Act. should be  considered,  the High  Court held that the expression "reduction in rank"  in s.  240(3) must also include reduction to a lower  stage  in the  time-:scale  as r. 2 (iii) had treated reduction  to  a lower  post  and "reduction to a lower stage  in  the  time- scale" as one kind of punishment.  Such a reasoning does not apply  to  the present case because r. 16.1  of  the  Punjab Police Rules makes a ’clear distinction between  "reduction" and stoppage of increment ,or forfeiture of approved service for   increment,  the  two  being  distinct   and   separate punishments permissible under that rule.  The second premise upon  which  the  High Court reached  the  said  conclusions rested  on  the observations in Dhingra’s  case(1),  wherein this Court laid down the criterion to judge whether an order is a (1)  A.I.R.  1959 orissa 167 P.C.          (2)  A.I.R.  1943 F.C. 18. (3)  [1958] S.C.R. 828. 397 punishment  or not by observing that it would be  punishment if the: order entailed or provided for forfeiture of pay  or allowances  or loss of seniority in his substantive rank  or stoppage or postponement of his future chances of promotion. The passage relied on the High Court laid down  determinents for  treating an order as. one of punishment and not a  test for  reduction  in rank.  As already  stated,  in  Dhingra’s case(1)  the impugned order was held to be one of  reduction in  rank because the appellant there was reduced from  Class 11  to  Class III service, i.e., from a higher  to  a  lower post, the time-scales of the two posts being different.  The reduction  of rank was held not to be a  punishment  because the appellant was not entitled to the better post wherein he

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was merely officiating and therefore did not visit him  with any  evil consequences.  The observations relied on  by  the High Court thus related to the question whether the impugned order was one of punishment and not for deciding whether  it amounted  to  a reduction in rank and were,  therefore,  not apposite.   The  basis for the, second premise of  the  High Court, therefore, was not correct and therefore cannot  help the respondent. The  aforesaid  analysis of the decisions leads  us  to  the conclusion  that the expression "reduction in rank" in  Art. 311  (2)  has  to  be  construed  according  to  the   well- established  meaning it has acquired, as in the case of  the other  two expressions, namely, dismissal’ and ’removal’  in that  article,  under  the various service  rules,  and  the provisions  in that regard in the Constitution Acts of  1915 and  1935.   The  expression  "reduction  in  rank"  in  the article, therefore, means reduction from a higher to a lower rank or post when imposed as a penalty.  Therefore, an order forfeiting  the past service which has earned  a  government servant  increments  in the post or rank he  holds,  however adverse  it  is to him, affecting his seniority  within  the rank to which he belongs or his future chances of  promotion does  not  attract the article.  His remedy,  therefore,  is confined to the rules of service governing his post.  In our view, neither Parshotam Lal Dhingra’s case(1) nor  Rupnarain Singh’s  case(2) assisted the respondent, as the first  does not  lay  down  what he contended and  the  second  was  not correctly decided. The  result is that the State’s appeal succeeds and must  be allowed.   Consequently,  the respondent’s suit  has  to  be dismissed.  In the circumstances of the case, however, there will be no order as to costs. Y.P.                                                  Appeal allowed. (1) [1958]  S.C.R. 828     (2) [1958]  S.C.R. 828 (3)  A.I.R. 1959 Orissa 167 P.C. 398