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State of Bihar & Ors Vs. Shiva Bhikshuk Mishra [1970] INSC 192 (14 September 1970)

14/09/1970 GROVER, A.N.

GROVER, A.N.

SHAH, J.C.

HEGDE, K.S.

CITATION: 1971 AIR 1011 1971 SCR (2) 197 1970 SCC (2) 871

CITATOR INFO :

R 1974 SC 423 (19) RF 1974 SC1317 (10) F 1974 SC2192 (67) RF 1976 SC1766 (12) RF 1976 SC2547 (16,21) D 1978 SC 363 (11) R 1979 SC 684 (7) D 1980 SC1459 (7) R 1984 SC 636 (11) RF 1986 SC1626 (24) R 1986 SC1790 (10)

ACT:

Constitution of India, 1950, Art. 311-Reversion and -dismissal of civil servant-Order of reversion not containing express words casting stigma-Entirety of circumstances must be seen to determine whether order was one by way of punishment though not expressly so-Dismissal by officer subordinate to appointing authority invalid.

HEADNOTE:

The respondent was holding the substantive post of Sergeant in the Bihar Police Force till July 31, 1946. On August 1, 1946 he was promoted to officiate in the higher post of Subedar. In January 1948, while still holding the substantive post of Sergeant he was promoted to officiate temporarily as Subedar Major. In October 1950 the Commandant of the Bihar Military Police, Muzaffarpur wrote to the Deputy Inspector General of Police Armed Forces suggesting that the respondent should be censured for having assaulted an orderly. The Deputy Inspector General recommended to the Inspector General that in view of the aforesaid incident the respondent be reverted to his substantive post ofSergeant pending the result of the departmental enquiry for misconduct which was already going on against him. In November 1950 the Inspector General reverted the respondent to the post of Sergeant. After the conclusion of the department enquiry the respondent was dismissed from service in April 1953 by an order of the Deputy Inspector General. In February 1954 the respondent filed a suit for declaration that his demotion to the post of Sergeant and subsequent dismissal from service were wrongful, illegal and inoperative. The trial court dismissed the suit. The High Court on appeal reversed the decision of the trial court on the finding that the 'reversion was not in the usual course or for administrative reasons but it was after the finding on an inquiry about some complaint against the plaintiff in, by way of punishment to him.' The order of dismissal was set aside on the ground that it had been made by the Deputy Inspector General while the appointing authority in the case of the post of Subedar-Major was the Inspector General so that there was a violation of Art. 31 1 ( 1 ). In appeal to this Court against the judgment of the High Court the question that fell for consideration was was whether the reversion of the respondent from the post of officiating Subedar-Major was made in circumstances which would attract the applicability of Art. 311(2) of the Constitution.

HELD : Dhaba's case is not an authority for the proposition that so long as there are no express words of stigma attributed to the conduct of a Government officer in the impugned order it cannot be held to have been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak and camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must 192 be examined and the overriding test will aways be whether the misconduct is a mere motive or is the very foundation of the order. 1196 C-E] In the present case the High Court found that the order of reversion was made owing to the note of the Deputy Inspector General of Police following the report of the Commandant.

The order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector General of Police said relating to the respondent's conduct generally and in particular with reference to the incident of assault by him on the orderly. There was no reason to disagree with the High Court that the order of reversion wits void. In that situation it was not disputed that the order of dismissal which was passed by the Deputy Inspector General of Police violated Art. 311(1) of the Constitution and had been rightly set aside by the High Court. [196 F-G] State of Punjab & Ant-. v. Shri Sugh Rai Bahadur, [1968] 3 S.C.R. 234 and S. R. Tiwari v. Distriction Boarad Aqra & Anr. [1964] 3 S.C.R. 55, applied.

Union of India v. R. S. Dhaba, I.T.0. Hosliiarpur, C.A. No 882/66 dt. 7-4-69, distinguished and explained,

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1363 of 1966.

Appeal from the judgment and decree dated August 25, 1965 of the Patna High Court in First Appeal No. 257 of 1960.

D. Goburdhun and R. Goburdhun, for tile respondent, The Judgment of the Court was delivered by Grover, J. This is ,in appeal by certificate from a judgment of the Patna High Court. The respondent was holding the substantive post of a Sergeant in the police force till July 31, 1946 in the State of Bihar. Oil August 1, 1946 lie was promoted to officiate in the higher post of Subedar. Oil January 9, 1948 while he was still holding the substantive post of a Sergeant he was promoted to officiate temporarily as a Subedar-Major. It appears that on October 3, 1950 the Commandant of the Bihar Military Police, Muzaffarpur wrote to the Deputy Inspector General of Police, Armed Forces, mentioning in incident between the respondent and his orderly on the night of September 22, 1950. The incident involved a physical assault by the respondent on the orderly. The Commandant made an inquiry in the matter and expressed the opinion that the respondent had actually assaulted his orderly by taking the law into his own hand instead of bringing any complaint which existed against the orderly to the notice of the higher authorities for proper action. In the penultimate paragraph of his letter the Commandant wrote, "to drop the above incident without taking action, in order to prevent any reoccurrence of the Subedar Major's gross misconduct, I suggest he be censured for 193 his unsatisfactory behaviour where he failed to maintain the required discipline". The Deputy Inspector General wrote a note to the Inspector General as follows :"Kindly see pp. 15-12 which relate to the notorious Subedar Major S. B. Missir, of B.M.P. VI whose conduct is already under enquiry by a Board to be presided over by the I.G. himself.

In this particular case Subedar Major Missir appears to have tripped up very badly and I feel that transfer, as recommended by D.I.G.A.F. is no cure.

It is indeed strange that our Board accepted the Subedar Major for promotion to the rank of Sergeant Major although he has not yet undergone training of a Sergeant. In a similar case the then D.I.G.A.F. recommended that a temporary Sgt. must undergo the Sergeant's course before his case was considered for promotion. The Subedar Major, is perhaps, too old to learn and in any case cannot be posted as a Sergeant Major in view of the fact that he was never trained as a Sergeant and has never worked in a district.

He was originally appointed in the R.P.P. by Mr. Creed's Board.

I recommend that the officiating Subedar Major should be reverted to his substantive rank of Sergeant and posted to Hazaribagh. The question whether he should be retained in service will be decided after the Board of enquiry concludes its labour. I am purposely suggesting his posting to Hazaribagh because he will be ,far away from the witnesses and would not be able to tamper with the evidence recorded of each witness. Even the present charge against Subedar Major Missir is serious but the order of reversion would meet with the case, as it is obvious that he is not likely to make either a suitable Subedar Major or Sergeant Major." The Inspector-General made an order on November 2, 1950, " as proposed". In the first week of November 1950 the respondent was asked to attend a Board of enquiry for answering, charges of misconduct. On November 14, 1950 the respondent was reverted to his substantive post of Sergeant.

On April 7, 1953 an order was made by the Deputy-Inspector General dismissing, the respondent from service.

In February 1954 the respondent filed a suit for a declaration that his demotion from the rank of a Subedar Major to that of Sergeant and dismissal from service were wrongful, illegal and inoperative and that he had all along remained a Subedar-Major. He further claimed a decree for a sum of Rs. 3118/on account of arrears of pay as detailed in Schedule I attached to the plaint 194 with future interest. The trial Court dismissed the suit on the view that the order of reversion did not contain any stigma on the competence and character of the respondent and that it had not been made by way of punishment. The High Court on appeal reversed the decision of the trial court on the finding that the "reversion was not in the usual course or for administrative reasons but it was after a finding on an inquiry about some complaint against the plaintiff and by way of punishment to him". The order of dismissal was set aside on the short ground that if the respondent continued to remain in the post of Subedar-Major even in an officiating capacity on the date with effect from which the order of dismissal was passed the provisions of Art. 311(1) had not been complied with. The Deputy Inspector General who had passed the order of dismissal was subordinate to the authority by which he had been appointed to officiate in the post of Subedar Major, that authority being the Inspector General of Police. The dismissal order was, therefore, invalid and not binding on the respondent. He was granted the declaration asked for by him together with a decree for Rs. 3,118/with future interest at the rate of 6% per annum.

The sole point which falls for determination is whether the reversion of the respondent from the post of officiating Subedar Major was made in the circumstances which would attract the applicability of Art. 311(2) of the Constitution. Mitter J., delivering the judgment of this Court in State of Punjab & anr. v. Shri Sukh Rai Bahadur(1) stated the following propositions on a consideration of the numerous decisions on the point -"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. 31.1 of the Constitution.

2.The circumstances preceding or attendant on the order of termination 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.

4.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.

(1) [1968] 3 S.C.R. 234.

195 5.It 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".

The argument sought to be raised on behalf of the appellant is that the order of reversion of the respondent to his substantive post casts no aspersion against his character or integrity. Even if the motive behind the making of the order was the report of the Deputy Inspector General dated November 1, 1950 consequent on the communication received from the Commandant dated October 3, 1950 arising out of the incident involving an assault by the respondent on his orderly it would not be a case of reversion by way of punishment. A great deal of stress is laid on the fact that no departmental enquiry as envisaged by Art. 311 was made into the abovementioned incident before reversion was ordered. Our attention has been invited to this Court's decision in the Union of India & Anr. v. R. S. Dhaba, Income Tax Officer, Hoshiarpur(1) in which Mr. Pillai the then Commissioner of Income tax had said that the officer concerned should be reverted because of the the large number of complaints which the department had received against his integrity and the bad reports received by him from his superiors. The successor of Mr. Pillai Mr. S. R. Mehta made an order on May 22, 1.964 to the effect that Dhaba officiating Income tax Officer Class 11 had been found unsuitable, after trial, to hold that post; and his reversion was ordered as Officiating Inspector, Income tax.

It was held by this Court that the order of reversion had said that the officer concerned should be reverted because (A High Court to the contrary was set aside. A large measure of support is sought to be derived from this decision because of the previous opinion of the Commissioner of Income tax which was highly prejudicial to Dhaba and the argument raised there was that the reversion of Dhaba was the direct result of the note of Mr. Pillai. This is what was observed by this Court in that case:"The test for attracting Art. 31 1 (2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of. service of the temporary employee (see the decision of this Court in Champaklal Chimanlal Shah v. The Union of India [1964] 5 S.C.R. 190. In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, (1).C. A. 882/66 cit. 7th April 1969.

196 it cannot 'be held that the order of reversion was made by way of punishment and the provisions of Art. 311 of the Constitution are consequently attracted".

We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a Government Officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which 'was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhaba's(1) case it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laiddown by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether tile order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct (see S. R.Tewari v. District Board Agra & Anr. ( 2 ). It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.

In the present case the High Court found that the order of reversion was made owing to the note of the Deputy Inspector-General of Police following the report of the Commandant. The order of reversion was directly and proximately founded oil what the Commandant and the Deputy Inspector General said relating. to the respondent's conduct generally and in particular with reference to the incident of assault by him on his orderly. We find no reason to disagree with the view of the High Court. It is not disputed that if the order of reversion was void the subsequent order of dismissal which was passed by the Deputy Inspector General of Police would be violative of Art. 3 1 1 (1 ) of the Constitution.

The appeal fails and it is dismissed with costs.

G.C. Appeal dismissed.

[1] C.A. 882 of 1966 dt. 7-4-69. (2). (1964) 3 S.C.R.55.

L235 Sup. CI/71--2500-17-11-71 --GIPF.

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