K. H. Phadnis Vs. State of Maharashtra
 INSC 85 (19 March 1971)
SIKRI, S.M. (CJ) SHELAT, J.M.
CITATION: 1971 AIR 998 1971 SCR 118 1971 SCC
F 1974 SC2192 (66) RF 1981 SC 957 (6) R 1986
SC1790 (9) D 1988 SC1240 (7)
Civil Servant--Holding temporary
post--Reversion to substantive post---When amounts to punishment and violation
of Art. 311, Constitution.
The appellant was repatriated from the
temporary post of Controller of Food Grains Department to his parent department
of Excise and Prohibition. His record of service showed that he was chosen to
go on deputation twice in 1942 and in 1957 and that he was chosen for his
experience. The record also showed that he was promoted from time to time.
While holding the post of Controller, the
Director of Civil Supplies asked him about certain charges of receiving money
and gifts at the time of the marriage of his daughter and that he forced his
peons to do menial work at the marriage.
The Secretary to the Government virtually
threatened to repatriate him to his parent department, and the Minister visited
',he office of the appellant and said there were complaints against him. The
appellant asked for an inquiry and the police conducted an inquiry. The
investigation indicated that the appellant was totally free from blame or
taint. At the time of the passing of the order of reversion the appellant
protested and asked the Government to wait for the completion of the
investigation but the Government did not accede to the request.
On the question whether there was violation
of the provisions in Art. 311 of the Constitution,
HELD: The facts and circumstances bring out
in bold relief that the order of reversion was in the nature of punishment and
was passed without complying with the provisions of the Constitution. [123H]
The post which the appellant was holding was a temporary one, but the appellant
was reverted neither because the temporary post was abolished nor because he
was unsuitable to continue nor because the parent department of the appellant
wanted him back. A Government servant holding a temporary post and having a
lien on his substantive post may be sent back to the substantive post in
ordinary routine administration or because of exigencies of service. Such a
person may have been drawing a salary higher than that of his substantive post
but when he is reverted to the parent department the loss of salary cannot be
said to have any penal consequences. The matter has to be viewed as one of
substance and all relevant factors have to be considered in ascertaining
whether the order is a genuine one of accident of service in which a person
sent from the substantive post to a temporary post has to go back to the parent
post without any aspersion against his character or integrity, or whether the
order amounts to, a reduction in rank by way of punishment. [123C-G] Parshotam
Lal Dhinera v. Union of India  S.C.R. 828;
Sukhbans Singh v. State of Punjab, 1
S.C.R. 416 and Appear Apar Singh v. The State of Punjab, C.A. No. 25/67 dt.3_
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 381 of 1967.
Appeal from the Judgment and order dated June
30, 1966, July 4, 1966 and,, July 5, 1966 of the Bombay High Court in Appeal
No. 1 1 1 of 1963.
R. K. Garg, S. C. Agarwala, D. P. Singh, V.
J. Francis and R. K. Jain, for the Appellant.
V. S. Desai and S. P. Nayar, for the
The Judgment of the Court was delivered by
Ray, J.-This is an appeal by special leave from the judgment dated 30 June,
1966 and 4 and 5 July, 1966 of the High Court at Bombay reversing the judgment
of the learned Single Judge dated 29 October, 1963.
The only question in this appeal is whether
the order of the Government of Bombay dated 8 May, 1962
"repatriating" the appellant from the temporary post of Controller of
Foodgrains Department, Bombay to his parent Department of Excise and
Prohibition amounted to a reduction in rank in violation of the provisions
contained in Article 311 of the Constitution.
The appellant joined service as Sub-Inspector
of Excise in the Excise and Prohibition Department of the Government of Bombay
in the year 1938. He was thereafter selected for transfer to the Bombay City
Police Department. In 1942 he was sent on "deputation" to the Civil
Supplies Department as an Inspector. He continued to work in that department up
to the month of February, 1955. By February, 1955 he had by various promotions
become Rationing Officer which was a gazetted post and he was then drawing a
salary of Rs. 530 p.
m. in the grade of Rs. 350-20-550. In 1955
there was decontrol of foodgrains. The post was abolished. The appellant was
reverted to the Excise Department. In course of time he was promoted to the
post of District Inspector in the Excise Department in the, grade of salary of
Rs. 220-10300. In 1957, the Government of Bombay again introduced the system of
distribution of foodgrains on the basis of household cards. The appellant in
view of his record of service in the Civil Supplies Department was asked to go
on "deputation" in the Agriculture and Forests Department as a Sub
Inspector under the Controller of Foodgrains Distribution, Bombay. In 1960, the
appellant was appointed to a temporary post of Controller of Foodgrains
Distribution, Bombay in the grade of Rs. 475-25-600-50-750.
In 1961 the appellant was drawing a salary of
Rs. 500 p. m.
as a Controller of Foodgrains Distribution.
120 The appellant married his daughter in the
month of December 1961. The appellant's daughter, a qualified doctor, was then
working as a Resident Medical Officer in the Bombay Municipal Corporation. The
appellant was asked by the Director of Civil Supplies in the months of January
to March, 1962 partly in writing and partly orally first whether he had forced
his peons to do menial work at the marriage of his daughter, secondly, it ,he
had taken cash and gifts from Fair Price Shop-owners; and, thirdly, whether he
had forced the staff to contribute in cash for the marriage of his daughter.
The appellant denied these allegations. Thereafter, the Secretary to the
Government of Maharashtra, Agriculture and Forests Department told the
appellant in the month of April, 1962 that there were complaints against him
and that "there could be no smoke without fire", and the appellant
would be "repatriated" to the Prohibition and Excise Department. The
Minister of Civil Supplies in the month of April, 1962 visited the appellant's
office and said that there were complaints against him. The appellant requested
a thorough enquiry in connection with such complaints. Subsequent to the visit
of the Minister, an Inspector of Police of the Anti-corruption Branch took
possession of several files of various fair price shop-keepers for scrutiny.
Thereafter, the Government of Bombay by a
resolution dated 8 May, 1962 directed that the appellant who was "on
deputation from the Excise and Prohibition Department should be repatriated to
his parent department with immediate effect".
The appellant was asked to hand over charge
and the appellant was posted by the Director of Excise and Prohibition in the
Office of Officiating Inspector in his Department.
In the month of July, 1962 the appellant came
to know that the Anti-corruption Branch of the Police submitted a report to the
Government and the appellant was found to be exonerated from all charges. The
appellant made a representation to the Government bringing the said fact to the
notice of the relevant authorities and requested for appointment to the post of
Controller of Foodgrains. The Government did not send him any reply to the
The appellant contended that the resolution
was in the nature of punishment by way of reduction in rank in violation of the
provisions contained in Article 311 of the Constitution and made an application
under Article 226 of the Constitution impeaching the order of reversion as an
action of punishment taken on false reports without waiting for the
investigation by the police to be complete.
The learned Single Judge of the Bombay High
Court held that the order of 8 May, 1962 was an act of punishment and reduction
in rank. The Division Bench of the Bombay High Court 121 reversed that judgment
and held that the appellant had no legal right to the post in the Department of
Agriculture and Forests, and therefore his reversion was not a punishment.
This Court in Parshotam Lal Dhingra v. Union
of India (1) laid down three propositions; First, Article 311 makes no
distinction between permanent and temporary members of the services or between
persons holding permanent or temporary posts and affords protection to both
classes of servants;
secondly, if a Government servant has no
right to the particular rank his reduction from an officiating higher rank to
his substantive lower rank will not by itself be a punishment ; and, thirdly,
the mere fact that the servant has no title to the post or the rank and the
Government has by contract, express or implied or under the rules governing the
conditions of his service, the right to reduce him to a lower post does not
mean that the order of reduction of a servant to a lower post or rank cannot in
any circumstance be a punishment.
In determining whether the reduction is or is
not by way of punishment it has to be found out if the order entails or
provides for the forfeiture of his pay or allowances or the loss of his
seniority in his substantive rank or the stoppage or postponement of his future
chances of promotion, or that in truth and reality the Government has passed
the order as and by way of penalty.
In applying these principles Dhingra's(1)
case laid down two tests; first, whether the servant had right to the post or
the rank, or, secondly, whether he has been visited with evil consequences of
the kind, mentioned in that decision.
This Court in Sukhbans Singh v. State of
Punjab(1) in dealing with the question as to whether a probationer has any
right to hold the post said that it would not be correct to say that a
probationer has a right to the higher post in which he is officiating or a
right to be confirmed, but a probationer could not be punished for misconduct
without complying with the requirements of Article 311. The appellant in that
case was recruited as Tehsildar in 1936.
He was thereafter selected by the Punjab
Public Service Commission and appointed as an Extra Assistant Commissioner on
probation in 1945. On 20 May, 1952 he was reverted to his substantive post of
Tehsildar. He asked for the grounds of reversion. He was denied the same. This
Court held on the facts that the Government wanted to punish him for what it
thought was misconduct and therefore reverted him. Thus, reversion by way of
punishment without complying with the provisions of Article 311 can-not be
(1)  S. C. R. 828 (2)  1 S. C. R.
416 122 In the recent unreported decision in Appar Apar Singh v. The State of
Punjab & Ors.0 the question for consideration was whether an order
reverting the appellant in that case from a post in Class I service in which he
was officiating to his substantive post in Class II amounted to reduction in
The appellant was employed in the Punjab
Education Service Class II. He was promoted to Class I on an officiating post
as Principal of the Government College, Muktsar. He had trouble with the
members of the staff. The appellant as Principal of the College in reading the
annual report made certain aspersions against some members of the teaching
staff. Thereafter, an enquiry was made pursuant to the demand of some of the
parents of the students. Two Deputy Directors made an enquiry. At that enquiry
the appellant was neither given copies of statements recorded nor was he
allowed to cross-examine the witnesses. The State contended that it was a
preliminary confidential enquiry into the affairs of the College and that the
appellant had no right to continue in Class I appointment where he was only
officiating. The High Court held that the order of reversion was not by way of
punishment but only because the person reverted was not found suitable to hold
the post and an enquiry was only to find out the state of affairs of the normal
functioning of the College. This Court held that the enquiry by the Deputy
Directors was to investigate allegations against the Principal and the Deputy
Directors recommended exemplary punishment. Therefore the order amounted to
reduction in rank and as no enquiry regarding disciplinary proceedings was
held, the order was in violation of the provisions of Article 31 1.
The most preeminent features which accentuate
the order of reversion to be in the nature of punishment in the present case
are these. The appellant was faced with certain charges of receiving money and
gifts at the time of the marriage of his daughter. The appellant denied the
allegations. The Secretary to the Government virtually threatened to repatriate
the appellant to his parent department. The Minister visited the office of the
appellant. The Police conducted an enquiry. The appellant himself had asked for
an enquiry. At the time of the passing of the order of reversion the appellant
not only protested but also asked the Government to wait for the completion of
the investigation. The Government did not accede to that request.
Subsequently, the investigation indicated
that the appellant was totally free from blame or taint.
The entire service record of the appellant
showed that the appellant was chosen to go on "deputation" twice once
in 1942 and (1)civil Appeal No. 15 of 1947 decided on 3-12-1970.
123 again in 1957. From 1942 to 1955 he was
in the Food Department and he was promoted from time to time. Between 1942 and
1955 the appellant rose from the post of Permit Officer to that of Rationing
Officer at the salary of Rs. 530 p. m.
In 1955the post was abolished. The appellant
was reverted to his parent department. In his parent department the appellant
was also promoted to the post of Inspector and thereafter District Inspector in
the grade of Rs. 220-10300. In 1957, the appellant was again sent on deputation
to the Food Department. The appellant was chosen for his experience. Again, he
received a promotion and increment in salary.
It is true that the post which the appellant
held was a temporary one, but the post continued for several years. The
indications were that the post was practically of a quasi permanent character.
The appellant was reverted neither because the temporary post was abolished nor
because he was found unsuitable to continue. The parent department of the
appellant did not want him back.
The order of reversion simpliciter will not
amount to a reduction in rank or a punishment. A Government servant holding a
temporary post and having lien on his substantive post may be sent back to the
substantive post in ordinary routine administration or because of exigencies of
A person holding a temporary post may draw a
salary higher than that of his substantive post and when he is reverted to his
parent department the loss of salary cannot be said to have any penal
consequence. Therefore though the Government has right to revert a Government
servant from the temporary post to a substantive post, the matter has to be
viewed as one of substance and all relevant factors are to be considered in
ascertaining whether the order is a genuine one of "accident of
service" in which a person sent from the substantive post to a temporary
post has to go back to the parent post without an aspersion against his
character or integrity or whether the order amounts to a reduction in rank by
way of punishment. Reversion by itself will not be a stigma. On the other hand,
if there is evidence that the order of reversion is not " a pure accident
of service" but an order in the nature of punishment, Article 311 will be
In the present case, the facts and
circumstances to which reference has already been made bring out in bold relief
that the order of reversion was in the nature of punishment.
The order was not in compliance with the
provisions of the Constitution.
124 For these reasons, we are of opinion that
the learned Single Judge was correct in his judgment. The appeal is allowed.
The Bench decision of the Bombay High Court
is set aside and the judgment of the learned Single Judge is restored. The
appellant will be entitled to costs in this Court.
V.P.S. Appeal allowed.