Full Judgment Text
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PETITIONER:
APPAR APAR SINGH
Vs.
RESPONDENT:
THE STATE OF PUNJAB AND OTHERS,
DATE OF JUDGMENT:
03/12/1970
BENCH:
[J. M. SHELAT, C. A. VAIDIALINGAM AND P. JAGANMOHANREDDY, JJ.]
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]
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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."
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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
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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
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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