Appar Apar Singh Vs. The State of
Punjab & Ors,  INSC 248 (3 December 1970)
03/12/1970 [J. M. SHELAT, C. A. VAIDIALINGAM
AND P. JAGANMOHANREDDY, JJ.]
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.
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
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
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, 
S.C.R. 828, Champaklal Chimanlal Shah v. Union of India,  5 S.C.R.
190, State of Punjab v. Shri Sukh Raj Bahadur,
 3 S.C.R. 234, State of Orissa v. Ram Narain Das, , 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,  2 S.C.R. 191, referred to.
Union of India v. R. S. Dhaba, 1969 3 Supreme
Court Cases 603distinguished.
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
(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
The Principal therefore, also needs some
Exemplary Punishment without being called upon to face a Regular Department
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
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.
Dated Chandigarh the 28th April, 1964 Sd/ C.
D. Kapur Education Commissioner & Secretary to Government, Punjab,
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
Please acknowledge receipt.
2. Accountant General, Punjab (GADVI) Simla
for information and necessary action.
3. Circle Education Officer, Ambala, for
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 that the 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
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 makeup 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
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 council 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
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)  S.C.R. 828.
(2)  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)  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) 
1 S.C.R. 606.
(2) A.I.R. 1964 S.C. 449.
(3)  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
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
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
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)  3
S.C.C.603 (2)  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.