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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: F.A.ABRAHAM

DATE OF JUDGMENT: 12/12/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR  794            1962 SCR  Supl. (2)  92  CITATOR INFO :  R          1964 SC1361  (10)  R          1966 SC1529  (14)  R          1974 SC 423  (18)  R          1974 SC1898  (7)  RF         1976 SC1766  (2,12)  RF         1976 SC2547  (21)  R          1977 SC1617  (4)

ACT:      Government Servant-officiating  Post-Reverted from,  for   unsatisfactory  work-If   amounts  to punishment-Refusal by Government to furnish reason of reversion  if proves  that the reversion was in the nature  of punishment-Government of India Act, 1935(26 Geo.  5 ch.  2), s. 240(3)-Constitution of India, Art. 311.

HEADNOTE:      The respondent  who held the substantive post of Inspector of Police and had been officiating as the Deputy  Superintendent of  Police was reverted to his  original rank  of Inspector  without being given any opportunity of being heard in respect of the reversion.  His request  to furnish  him  with reasons of  his reversion  was  refused.  Later  a Departmental enquiry  was held  behind his back in respect of  certain allegations of misconduct made against him  in a  confidential communication from the  District  Superintendent  of  police  to  the Deputy  Inspector-General   of  Police  but  these allegations were  not proved  at the  enquiry. The Inspector-General  of  Police  however  thereafter wrote to  the  Government  that  the  respondent’s previous record  was not  satisfactory and that he had 93 been   promoted    to    officiate    as    Deputy Superintendent of  Police in  the expectation that he would turn a new leaf but the complaint made in

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the confidential memorandum was a clear proof that the respondent  was habitually  dishonest and  did not deserve  promotion. As  the order of reversion was maintained  by the  Government inspite  of the representations made by the respondent. he filed a suit challenging  the order.  The suit was decreed by the  Court of first instance and the decree was affirmed by the High Court on appeal. ^      Held, that a person officiating in a post has no right to hold it for all times. A person who is given an  officiating post to test his suitability to be  made  permanent  later,  holds  it  on  the implied term  that he would have to be reverted if he was  found unsuitable.  A reversion  in such  a case on  the ground  of unsuitability is an action in  accordance   with  the   terms  on  which  the officiating post  was being  held  and  is  not  a reduction in rank by way of punishment to which s. 240 of the Government of India Act, 1935, would be attracted.      The observation  in M.  A. Waheed v. State of Madhya Pradesh,  (1954) N.  L. J. 305, that when a person officiating  in  a  post  is  reverted  for unsatisfactory work,  that  reversion  amounts  to reduction in rank disapproved.      The  Government’s   refusal  to   supply  the respondent with  the  reasons  for  reverting  him could not  proved that the reversion was by way of punishment. The departmental enquiry held later in this case  does not  prove that the respondent was reverted by  way of punishment. The Government had the right  to  consider  the  suitability  of  the respondent to  the  post  to  which  he  had  been appointed to officiate.      State of  Bihar v. Gopi Kishore Prasad, A. I. R. 1960 S.C. 689, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 59 of 1961.      Appeal from  the judgment  and  decree  dated March 14,  1957,  of  the  Bombay  High  Court  at Nagpur, in first Appeal No. 75 of 1956.      N. S.  Bindra  and  R.  H.  Dhebar,  for  the appellant      Frank  Anathony,  J.  B.  Dadachanji,  O.  C. Mathur and Ravinder Narain, for the respondent.      1961. December  12. The Judgment of the Court was delivered by 94      SARKAR, J.-This  is an appeal by the State of Maharashtra against the judgment of the High Court at Nagpur  confirming the decree of the Additional District Judge,  Nagpur, declaring  that the order reverting  the   respondent  from   the  rank   of officiating Deputy Superintendent of Police to the rank of Inspector of Police, was illegal and void, and granting certain consequential reliefs.      The  judgment  of  the  High  Court  and  the learned Additional District Judge Seem to us to be clearly unsustainable.  The Courts below held that the  respondent   had  been  reduced  in  rank  in

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violation  of  the  terms  of  s.  240(3)  of  the Government of  India Act,  1935, which corresponds to Art.  311 of  the Constitution,  inasmuch as he was not given an opportunity to show cause against the order  proposed to  be  made.  It  is  not  in dispute that  the opportunity  has not been given. In our  view, however, for reasons to be presently stated, the  respondent was  not entitled  to that opportunity.      On June  8, 1948,  the respondent was holding the post of Inspector in the Central Provinces and Berar  Police.   Service.  He   was  appointed  to officiate as  Deputy Superintendent of Police with effect from  June 9,1948. On January 27, 1949, his services were  lent to the Hyderabad Government in connection with the police action then being taken there. On  February 5,  1949, he  was sent back to the central  Provinces and  Berar. On February 19, 1949, the  Inspector General  of  Police,  Central Provinces and  Berar, passed  an order which reads as follows:           "Shri F.  A. Abraham (respondent) Deputy      Superintendent Police,  Parbhani, is reverted      to rank of Inspector." It is  this order  which was sought to be impugned by the  respondent in  the suit  out of which this appeal arises. 95      After the  order of  reversion had  been made the respondent,  on February  23, 1949,  asked for the reason  for which he was reverted. On March 3, 1949, the  Government refused  to communicate  the reasons to  him. On  May 25,  1949, a confidential memorandum was sent by the District Superintendent of  Police,  Parbhani,  to  the  Deputy  Inspector General of  Police, Aurangabad, in which he stated that he  had conducted  an  inquiry  into  certain allegations  of   corruption  made   against   the respondent while  he was  acting in the service of the  Hyderabad   Government  at  Parbhani  and  he thought that  those allegations were of substance. Thereupon, the Deputy Inspector General of Police, Aurangabad, held  a departmental inquiry regarding these allegations and found that they had not been proved. This inquiry had been held behind the back of the respondent. Notwithstanding this, the order reverting the  respondent was maintained. There is a letter  addressed by  the Inspector  General  of Police to the Chief Secretary to the Government of Madhya Pradesh,  dated August  19,  1950,  written after  the  departmental  inquiry  wherein  it  is stated that  the respondents  previous record  was not satisfactory  and that he had been promoted to officiate as  Deputy Superintendent  of Police  as the Government was in need of officers and that he had been given a chance in the expectation that he would turn  a new  leaf but  the complaint made in the confidential memorandum was a clear proof that the officer  was habitually  dishonest and did not deserve    promotion.    The    respondent    made representations to  the Government  to revise  the order reverting  him to  the lower  rank  but  the Government expressed  its inability  to do  so. It may be stated here that on the promulgation of the Constitution  the   central  Provinces  and  Berar

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became the  State of  Madhya Pradesh in the Indian Union.      In the  judgment under  appeal the High Court followed its  earlier decision  in M. A. Waheed v. State 96 of Madhya  Pradesh (1)  in which  it had been held that if  a person  officiating in a higher post is reverted  to  his  original  post  in  the  normal course, that  is, on  account of  the cessation of the vacancy or his failure to acquire the required qualification, the  reversion does not amount to a reduction in  rank  but  if  he  is  reverted  for unsatisfactory work, then the reversion amounts to reduction in  rank. The  High Court  held that the Government’s plea  that the  respondent  had  been promoted as  there was  dearth of  officers was an afterthought and that the fact that the respondent had been given a chance to officiate in the higher post prima  facie showed  that he  was fit to hold that post.  The High  Court  also  held  that  the Government’s  refusal   to  communicate   to   the respondent the  reasons for  his reversion  or  to give him the report of the inquiry, indicated that the Government  was reverting  him on  the  ground that his work was not satisfactory. It, therefore, came to  the conclusion  on the authority of M. A. Waheed’s case (1) that the respondent must be held to have reduced in rank and this reduction in rank was illegal  as the  respondent had not been given an opportunity to show cause against it.      We are  unable to  agree with the observation in M.  A. Waheed’s  case(1)  that  when  a  person officiating   in   a   post,   is   reverted   for unsatisfactory work,  that reversion  amounts to a reduction in  rank. A person officiating in a post has no right to hold it for all times. He may have been  given   the  officiating  post  because  the permanent incumbent was not available, having gone on leave  or being  away for  some other  reasons. When  the  permanent  incumbent  comes  back,  the person officiating  is naturally  reverted to  his original post. This is no reduction in rank for it was the  very term  on which he had been given the officiating post.  Again, sometimes  a  person  is given 97 an officiating  post to test his suitability to be made permanent  in it  later. Here again. it is an implied term  of the  officiating appointment that if he  is found  unsuitable, he  would have  to go back. If,  therefore, the  appropriate authorities find him  unsuitable for  the higher rank and then revert him  back to  his original  lower rank, the action taken  is in  accordance with  the terms on which the  officiating post  had been given. It is in no  way a  punishment and  is not, therefore, a reduction in  rank. It has been held by this Court in Parshotam  Lal Dhingra  v. Union  of India  (1) that,           "It  is,  therefore,  quite  clear  that      appointment  to   a  permanent   post  in   a      Government service,  either on  probation, or      on an officiating basis, from the very nature      of  such   employment,  itself   of  a   very

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    transitory character  and, in  the absence of      any  special   contract  or   specific   rule      regulating the conditions of the service, the      implied term  of such  appointment, under the      ordinary law  of master  and servant, is that      it is  terminable at  any time.  In short, in      the case  of an  appointment to  a  permanent      post in  a Government service on probation or      on  an  officiating  basis,  the  servant  so      appointed does  not acquire  any  substantive      right to  the post  and  consequently  cannot      complain, any  more than  a  private  servant      employed on  probation or  on an  officiating      basis can do, if his service is terminated at      any time." The respondent  had of course no right to the post of Deputy Superintendent of Police to which he had been given  an officiating appointment and he does not contend  to the contrary. He cannot therefore, without more,  complain if  he is sent back to his original post.  This is what happened in this case even if it be taken that the respondent 98 had been  reverted to his original rank because he was found  unsuitable for the higher rank to which he had been given an officiating appointment.      It is  however true  that even an officiating person may be reverted to his original rank by way of  punishment.  It  was  therefore,  observed  in Dhingra’s case (1) at p. 863,           "Thus 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,  then   that   circumstances   may      indicate that although in form the Government      had  purported   to  exercise  its  right  to      terminate the  employment or  to  reduce  the      servant to  a lower  rank under  the terms of      the  contract  of  employment  or  under  the      rules, in  truth and  reality the  Government      has terminated  the employment  as and by way      of penalty."      It is  quite  clear  that  the  circumstances mentioned in this observation have not occurred in the present case. The reversion has not in any way affected the  respondent so  far as  his condition and prospect  of  service  are  concerned.  He  of course, lost the benefit of the appointment to the higher rank  but that  by itself  cannot  indicate that  the  reversion  was  by  way  of  punishment because he  had no right to continue in the higher post or  to the  benefits arising  from it. He had been reverted  in exercise  of a  right which  the Government had  uncle the terms of the officiating employment. The  High Court  seems to  us to  have been in  error in  thinking that  the Government’s refusal to  supply the respondent with the reasons why action  has taken  against him proved that the reversion was  a reduction  in  rank  by  way  of. punishment; the  refusal cannot prove that. It may give rise  to a  suspicion about  the motive which led the Government 99

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to  take   the  action,   but  it  is  now  firmly established that  if  the  action  is  justifiable under the terms of the employment, then the motive inducing the  action is irrelevant in deciding the question whether  the action had been taken by way of punishment:  see Parshotam  Lal Dhingra’s  case (1) at  p. 862. It does not require to be repeated now  that  unless  the  reversion  is  by  way  of punishment, s. 240 (3) is not attracted.      The High  Court seems  to have  been in error also in  drawing an  inference from the holding of the departmental  inquiry that the respondent must have been  reduced in  rank by  way of punishment. The departmental  inquiry was  held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position  to which  he had  been appointed  to officiate. It  was entitled  for that  purpose  to make inquiries  about his suitability. This is all that the Government did in this case. This inquiry cannot show,  whatever the findings may have been, that the  reversion earlier  made was  by  way  of punishment.      Mr. Anthony for the respondent referred us to State of  Bihar v. Gopi Kishor Prasad (2) in which it was observed,           "But, if  instead of  terminating such a      person’s service  without  any  enquiry,  the      employer chooses  to hold an enquiry into his      alleged misconduct,  or inefficiency,  or for      or some  similar reason;  the termination  of      service is  by way  of punishment, because it      puts a  stigma on  his  competence  and  thus      affect his future career." That  case   dealt  with   the  discharge   of   a probationer officer  on the  ground  that  he  was unsuitable.  The   observation  there   made   was considered by this 100 Court in  the later case of The State of Orissa v. Ram Narayan Das (1) where it was said,           "The third  proposition  in  the  latter      case refers to an enquiry into allegations of      misconduct or  inefficiency with  a view,  if      they  were  found  established,  to  imposing      punishment and  not to  an enquiry  whether a      probationer should be confirmed." We would  repeat that  in  the  present  case  the enquiry  was   concerned  with   ascertaining  the suitability of  the respondent for the higher rank and was not a punishment.      At one  stage Mr.  Anthony  was  inclined  to argue that  the enquiry  was really  a part of the original order  of reversion  and that it had been deliberately  postponed   to  as   to  avoid   the applicability of  s. 240(3)  of the  Government of India Act,  1935 No  such  case  is  made  in  the plaint. Neither  was it  made in  the courts below nor can it be based on their findings. Such a case cannot now be made.      We think,  therefore, that the appeal must be allowed  with   costs  throughout   and  we  order accordingly.

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                                  Appeal allowed. 101