Shri Madhav Laxman Vaikunthe V. Vs.
The State of Mysore [1961] INSC 154 (12 April 1961)
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1962 AIR 8 1962 SCR (1) 886
CITATOR INFO :
D 1966 SC1529 (3,5,9,12) R 1971 SC 766 (7) F
1972 SC2638 (3) R 1974 SC 338 (8) R 1974 SC 423 (18) RF 1976 SC1766 (12) RF
1976 SC2547 (21) RF 1980 SC1773 (9) R 1992 SC2009 (9)
ACT:
Public Servant-Reversion to substantive
rank--if and Punishment-Test--Recovery of arrears of salary--Limitation
Government of India Act, 1935 (26 Geo..5, Ch. 2), S. 240(3)--Constitution of
lndia, Art. 311(2)--Indian Limitation Act, 1908 (9 of 1908), art. 102.
HEADNOTE:
The appellant, who held the rank of a Mamllatdar
in the first grade and was officiating as District Deputy Collector, was
alleged to have wrongly charged travelling allowance for 59 miles instead of 51
and was, as the result of a departmental enquiry, reverted to his substantive
rank for three years and 887 directed to refund the excess be had charged. He
made a representation to the Government which was of no avail although the
Accountant General was of the opinion that the appellant had not overcharged
and committed no fraud.
Ultimately the appellant was promoted to the
selection grade but the order of reversion remained effective and affected his
position in the selection grade. After retirement he brought a suit for a
declaration that the order of reversion was void and for recovery of Rs. 12,
516 and odd as arrears of salary, allowances, etc., with interest and future
interest. The trial court held that there was no compliance with the provisions
of s. 240(3) of the Government of India Act, 1935, granted the declaration but
refused the arrears claimed. The plaintiff filed an appeal and the State a
cross-objection and the High Court dismissed the appeal and allowed the
cross-objection, holding that the order of reversion was not a punishment
within the meaning of S. 240(3) of the Government of India Act, 1935.
Held, that the matter was covered by the
observations of this Court in Purshottam Lal Dhingra's case and of the two
tests of punishment laid (town by this Court, namely, (1) whether the servant
had a right to the rank or (2) whether he had been visited by evil consequences
of the kind specified therein, the second certainly applied. The appellant
might or might not have the right to hold the higher post, but there could be
no doubt that the was visited with evil consequences as a result of the order
of reversion.
Mere deprivation of higher emoluments,
however, in consequence of an order of reversion could not by itself satisfy
that test which must include such other consequences as forfeiture of
substantive pay and loss of seniority' In the instant case, by the order of
reversion for three years to his substantive post, the appellant lost seniority
and promotion and the belated action of the Government could not wholly undo
the mischief.
Since the requirement of s. 240(3) of the
Government of India Act, 1935, which corresponds to Art. 311(2) of the
Constitution, had not been found to have been fully complied with, the order of
reversion must be held to be void.
Purshottam Lal Dhingra v. Union of India,
[1958] S.C.R. 826, applied.
The claim of arrears of salary was governed
by art. 102 of the Indian Limitation Act, and the appellant, therefore, was
entitled to no more than what fell due during the 3 years previous to his
retirement.
The Punjab Province v. Pandit Tarachand,
[1947) F.C.R. 89, followed.
CIVIL APPELLATE JURISDICTION: CIVIL Appeal
No.84 of 1960.
888 Appeal from the judgment and decree dated
July 26, 1956. of the Bombay, High Court in Appeal No. he 138 of 1956.
The appellant in person.
B. R. L. Ayengar and D. Gupta, for the
respondent.
1961. April 12. The Judgment of the Court was
delivered by SINHA, C. J.-The main question for decision in this appeal, on a
certificate of fitness granted by the' High Court of Judicature at Bombay, is
whether a public servant, who has been officiating in a higher post but has
been reverted to his substantive rank as a result of an adverse finding against
him in a departmental enquiry for misconduct, can be said to have been reduced
in rank within the meaning of s. 240(3) of the Government of India Act, 1935.
The learned Civil Judge, Senior Division, by his, Judgment and Decree dated
October 31, 1955, held that it was so. The High Court of Bombay, on a first
appeal from that decision, by its Judgment and Decree dated July 26, 1956, has
held to the contrary.
In so far as it is necessary for the
determination of this appeal, the facts of this case may shortly be stated as
follows. The appellant was holding the rank of a Mamlatdar in the First Grade
and Was officiating as a District Deputy Collector. In the latter capacity he
was functioning as a District Supplies Officer. He had to undertake tours in
the discharge of his official duties for which he maintained a motor car. In
respect of one of his travelling allowance bills, it was found that he had
charged travelling allowance in respect of 59 miles whereas the correct
distance was only 51 miles. A departmental enquiry was held against him as a
result of which he was reverted to his original rank as Mamlatdar, by virtue of
the Order of the Government dated August 11, 1948, (Ex. 35), which was to the
following effect:
"After careful consideration Government
have decided to revert you to Mamlatdar for a period of 889 three years and
have further directed that you should refund the excess mileage drawn by you in
respect of the three journeys." The appellant made a number of
representations to the Government challenging the correctness of the findings
against him and praying for re-consideration of the Order of Reversion passed
against, him but to no effect, in spite of the fact that ultimately the
Accountant General gave his opinion that the appellant had not overcharged and
that there was no fraud involved in the travelling allowance bill which was the
subject matter of the charge against him. But ultimately, by a Notification
date& March 26, 1951, (Ex.
61), the appellant was promoted to the
Selection Grade with effect from August 1, 1950, but even so the Order of
Reversion passed against the appellant remained effective and appears to have
affected his place in the Selection Grade. Eventually, the appellant retired
from service on superannuation with effect from November 28, 1953. He filed his
suit against the State of Bombay on August 2, 1954, for a declaration that the
Order of the Government dated August 11, 1948, was void, inoperative, wrongful,
illegal and ultra vires, and for recovery of Rs. 12,866 odd or account of his
arrears of salary, allowances, etc. with interest and future interest. The
learned Civil Judge Senior Division, at Belgaum, came to the conclusion that
the first part of the departmental enquiry held against the plaintiff leading
up to the findings against him was free from any defect but that he had no been
given the opportunity of showing cause against the punishment proposed to be
inflicted upon him a a result of those findings, in so far as no show-cause
notice was given to him nor a copy of the enquire, report showing the grounds
on which the findings ha, been based. There was, thus, according to the finding
of the Trial Court, no full compliance with the requirements of s. 240(3) of
the Government of India Act 1935. The Court also held that the Order of
Reversion amounted to a penalty imposed upon the plaintiff as a result of the
enquiry. The Court, therefore, cam 890 to the conclusion that the Order
aforesaid passed by the Government reverting him to the substantive rank was
void and granted him that declaration, but dismissed his suit, with costs, in
respect of the arrears Claimed by him as aforesaid on the ground that it was
based on tort and not on contract. There was an appeal by the plaintiff in
respect of the dismissal of his claim for arrears, and cross objections by the
State in respect of that part of the judgment and decree which had granted
declaration in favour of the plaintiff. The High Court dismissed the appeal by
the plaintiff and allowed the cross-objections of the defendant-respondent in
respect of the declaration, but made no orders as to the costs of the appeal
and the cross objections. The High Court held that the Order of Reversion, even
assuming that it was a punishment as a result of the departmental enquiry
against the appellant, was not a punishment within the meaning of s. 240(3) of
the Government of India Act, 1935. It also held that the Order of Reversion was
not a punishment at all.
In this Court, the appellant, who has argued
his own case with ability, has urged in the first place, and in our opinion
rightly, that his case is covered by the observations of this Court in
Parshotam Lal Dhingra v. Union of Indid (1). Those observations are as follows:"A
reduction in rank likewise may be by way of punishment or it may be an
innocuous thing.
If the Government servant has a right to a
particular rank, then the very reduction from that rank will operate as a
penalty, for he will then lose the emoluments and privileges of that rank. If,
however, he has no right to the particular rank, his reduction from an
officiating higher rank to his substantive lower rank will not ordinarily be a
punishment. But 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, the right to reduce him to a lower post does not mean that an order of
reduction of a servant to a lower (1) [1958] S.C.R. 826, 863-64.
891 post or rank cannot in any circumstances
be a punishment. The real test for determining whether the reduction in such
cases is or is not by way of punishment is to find out if the order for the
reduction also visits the servant with any penal consequences. Thus if the
order entails or provides for the forfeiture of his pay or allowances or the
loss of his seniority in his substantive rank or the stoppage or postponement
of his future chances of promotion, then that circumstance may indicate that
although in form the Government had purported to exercise its right to
terminate the employment or to reduce the servant to a lower rank under the
terms of the contract of employment or under the rules, in truth and reality
the Government has terminated the employment as and by way of penalty. The use
of the expression "terminate" or "discharge" is not
conclusive. Tn spite of the use of such innocuous expressions, the court has to
apply the two tests mentioned above, namely, (1) whether the servant bad a
right to the post or the rank or (2) whether he ha,,; been visited with evil
consequences of the kind hereinbefore referred to? If the case satisfies either
of the two tests then it must be held that the servant has been punished and the
termination of his service must be taken as a dismissal or removal from service
or the reversion to his substantive rank must be regarded as a reduction in
rank and if the requirements of rules and Art. 311, which give protection to
Government servant have not been complied with, the termination of the service
or the reduction in rank must be held to be wrongful and in violation of the
constitutional right of the servant." He has rightly pointed out that he
would have continued as a Deputy Collector but for the Order of the Government,
dated August 11, 1948, impugned in this case, as a result of the enquiry held
against him, and that his reversion was not as a matter of course or for
administrative convenience. The Order, in terms, held him back for three years.
Thus his emoluments, present as well as future, were adversely affected by the
892 Order aforesaid of the Government. In the ordinary course, he would have
continued as a Deputy Collector with all the emoluments of the post and would
have been entitled to further promotion but for the setback in his service as a
result of the adverse finding against him, which finding was ultimately
declared by the Account ant General to have been under a misapprehension of the
true facts. It is true that he was promoted as a result of the Government Order
dated March 26, 1951, with effect from August 1, 1950. B' that promotion did
not entirely cover the ground lost by him as a result of the Government Order
impugned in this case. It is noteworthy that the Judgment of the High Court
under appeal was given in July, 1956, when the decision of this Court in
Dhingra's case (1) had not been given. The decision of this Court was given in
November, 1957. Of the two tests laid down by this Court, certainly the second
test applies, if not also the first one. He may or may not have a right to hold
the post or the rank, but there is no doubt that he was visited with evil
consequences. Ordinarily, if a public servant has been officiating in a higher
rank it cannot be said that he has a substantive right to that higher rank.
He may have to revert to his substantive rank
as a result of the exigencies of the service or he may be reverted as a result
of an adverse finding in an enquiry against him for misconduct. In every case
of reversion from an officiating higher post to his substantive post, the civil
servant concerned is deprived of the emoluments of the higher post.
But that cannot, by itself, be a ground for
holding that the second test in Dhingra's case (1), namely, whether he has been
visited with evil consequences, can be said to have been satisfied. Hence, mere
deprivation of higher emoluments as a consequence of a reversion cannot amount
to the "evil consequences" referred to in the second test in
Dhingra's case (1); they must mean something more than mere deprivation of
higher emoluments. That being so, they include, for example, forfeiture of
substantive pay, loss of seniority, etc. Applying that (1) [1058] S.C.P. 326,
863-64.
893 test to the present case, it cannot be said
that simply because the appellant did not get a Deputy Collector's salary for
three years, he was visited with evil consequences of the type contemplated in
Dhingra's case (1).
Even if he had been reverted in the ordinary
course of the exigencies of the service, the same consequences would have
ensued. If the logs of the emoluments attaching to the higher rank in which he
was officiating was the only consequence of his reversion as a result of the
enquiry against him, the appellant would' have no cause of action.
But it is clear that as a result of the Order
dated August 11, 1948 (Ex. 35), the appellant lost his seniority as a
Mamlatdar, which was his substantive post: That being so, it was not a simple
case of reversion with no evil consequences; it had such consequences as would
come within the test of punishment as laid down in Dhingra's case. If the
reversion had not been for a period of three years, it could not be said that
the appellant had been punished within the meaning of the rule laid down in
Dhingra's case, (1). It cannot be asserted that his reversion to a substantive
post for a period of three years was not by way of punishment. From the facts
of this case it is clear that the appellant was on the upward move in the cadre
of his service and but for this aberration in his progress to a higher post, he
would have, in ordinary course, been promoted as he actually was sometime later
when the authorities realised perhaps that he had not been justly treated, as
is clear from the Order of the Government, dated March 26, 1951, promoting him
to the higher rank with effect from August 1, 1950. But that belated justice
meted out to him by the Government did not completely undo the mischief of the
Order of Reversion impugned in this case. It is clear to us, therefore, that as
a result of the Order of Reversion aforesaid, the appellant had been punished
and that the Order of the Government punishing him was not wholly regular. It
has been found that the requirements of s. 240(3) of the Government of India
Act, 1935, corresponding to Art. 311 (2) of the Constitution, had not been
fully complied with. His (1) [1958] S.C.R. 826,863-64.
894 reversion in rank, therefore, was in
violation of the Constitutional guarantee. In view of these considerations it
must be held that the High Court was not right in holding against the appellant
that his reversion was not a punishment contemplated by s. 240(3) of the
Government of India Act, 1935. On this part of the case, in our opinion, the
decision of the High part has to be reversed and that of the Trial Court hat
his reversion to his substantive rank was void, must be restored.
The question then arises whether he is
entitled to any relief in respect of his claim for arrears of salary and
dearness allowance. He has claimed Rs. 10,777 odd as arrears of pay, Rs. 951
odd as arrears of dearness allowance, as also Rs. 688 odd as arrears of daily
allowance plus interest of Rs. 471 odd, thus aggregating to the sum of Rs.
12,886 odd. This claim is spread over the period August, 1946, to November,
1953, that is to say, until the date of his retirement from Government service,
plus future interest also. On this part of the case the learned Trial Judge,
relying upon the case of the High Commissioner for India and Pakistan v. I. M. Lall
(1) held that a government servant has no right to recover arrears of pay by an
action in a Civil Court. He got over the decision of this Court in the State of
Bihar v. Abdul Majid (2) on the ground that that case has made a distinction
between a claim based on a contract and that on a tort. In the instant case, he
came to the conclusion that as the plaintiff had claimed the difference between
the pay and allowance actually drawn and those to which he would have been
entitled but for the wrongful orders, the claim was based on tort and,
therefore, the plaintiff was not entitled to any relief. On the question of
limitation, he held that the suit would be governed by Art. 102 of the Indian
Limitation Act (IX of 1908) as laid down by the Federal Court in the case of
The Punjab Province v. Pandit Tarachand (3). In that view of the matter, the
learned Judge held that adding the period of two months of the statutory notice
under s. 80 of the Code of Civil Procedure given to (1) (1948) L.R. 75 I.A.
225. (2) [1954] S.C.R. 786.
(3) [1947] F.C.R. 89.
895 Government, the claim would be in time
from June 2, 1951.
Hence the Trial Court, while giving the
declaration that the Order impugned was void, dismissed, the rest of the claim
with a direction that the plaintiff was to pay 3/4ths of the costs of the suit
to the defendant. The High Court dismissed the suit in its entirety after
allowing the cross objections of the State. The appellant contended that his
suit for arrears of salary would not be governed by the three years rule laid
down in Art. 102 of the Limitation Act and that the decision of the Federal
Court in Tarachand's case (1) was not correct. The sole ground on which this
contention was based was that "salary" was not included within the
term "wages". In our opinion, no good reasons have been adduced
before us for not following the aforesaid decision of the Federal Court. In the
result, the appeal is allowed in part, that is to say, the declaration granted
by the Trial Court that the Order of the Government impugned in this case is
void, is restored, in disagreement with the decision of the High Court. The
claim as regards arrears of salary and allowance is allowed in part only from the 2nd of June, 1951, until the date of the plaintiff's retirement from Government
service. There will be no decree for interest before the date of the suit, but
the decretal sum shall bear interest at 6% per annum from the date of the suit
until realisation. The plaintiff-appellant will be entitled to three-fourths of
his costs throughout, in view of the fact that his entire claim is not being
allowed.
Appeal allowed in part.
(1) (1947) F.C.R. 89.
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