The State of Bombay Vs. F.A. Abraham
[1961] INSC 353 (12 December 1961)
SARKAR, A.K.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1962 AIR 794 1962 SCR Supl. (2) 92
CITATOR INFO :
R 1964 SC1361 (10) R 1966 SC1529 (14) R 1974
SC 423 (18) R 1974 SC1898 (7) RF 1976 SC1766 (2,12) RF 1976 SC2547 (21) R 1977
SC1617 (4)
ACT:
Government Servant-officiating Post-Reverted
from, for unsatisfactory work-If amounts to punishment-Refusal by Government to
furnish reason of reversion if proves that the reversion was in the nature of
punishment-Government of India Act, 1935(26 Geo. 5 ch. 2), s.
240(3)-Constitution of India, Art. 311.
HEADNOTE:
The respondent who held the substantive post
of Inspector of Police and had been officiating as the Deputy Superintendent of
Police was reverted to his original rank of Inspector without being given any
opportunity of being heard in respect of the reversion. His request to furnish
him with reasons of his reversion was refused. Later a Departmental enquiry was
held behind his back in respect of certain allegations of misconduct made
against him in a confidential communication from the District Superintendent of
police to the Deputy Inspector-General of Police but these allegations were not
proved at the enquiry. The Inspector-General of Police however thereafter wrote
to the Government that the respondent's previous record was not satisfactory
and that he had 93 been promoted to officiate as Deputy Superintendent of
Police in the expectation that he would turn a new leaf but the complaint made
in the confidential memorandum was a clear proof that the respondent was
habitually dishonest and did not deserve promotion. As the order of reversion
was maintained by the Government in spite of the representations made by the
respondent. he filed a suit challenging the order. The suit was decreed by the
Court of first instance and the decree was affirmed by the High Court on
appeal.
^ Held, that a person officiating in a post has
no right to hold it for all times. A person, who is given an officiating post
to test his suitability to be made permanent later, holds it on the implied
term that he would have to be reverted if he was found unsuitable. A reversion
in such a case on the ground of unsuitability is an action in accordance with
the terms on which the officiating post was being held and is not a reduction
in rank by way of punishment to which s. 240 of the Government of India Act,
1935, would be attracted.
The observation in M. A. Waheed v. State of
Madhya Pradesh, (1954) N. L. J. 305, that when a person officiating in a post
is reverted for unsatisfactory work, that reversion amounts to reduction in
rank disapproved.
The Government's refusal to supply the
respondent with the reasons for reverting him could not proved that the
reversion was by way of punishment. The departmental enquiry held later in this
case does not prove that the respondent was reverted by way of punishment. The
Government had the right to consider the suitability of the respondent to the
post to which he had been appointed to officiate.
State of Bihar v. Gopi Kishore Prasad, A. I.
R. 1960 S.C. 689, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 59 of 1961.
Appeal from the judgment and decree dated
March 14, 1957, of the Bombay High Court at Nagpur, in first Appeal No. 75 of
1956.
N. S. Bindra and R. H. Dhebar, for the
appellant Frank Anathony, J. B. Dadachanji, O. C. Mathur and Ravinder Narain,
for the respondent.
1961. December 12. The Judgment of the Court
was delivered by 94 SARKAR, J.-This is an appeal by the State of Maharashtra
against the judgment of the High Court at Nagpur confirming the decree of the
Additional District Judge, Nagpur, declaring that the order reverting the respondent
from the rank of officiating Deputy Superintendent of Police to the rank of
Inspector of Police, was illegal and void, and granting certain consequential
reliefs.
The judgment of the High Court and the
learned Additional District Judge Seem to us to be clearly unsustainable. The
Courts below held that the respondent had been reduced in rank in violation of
the terms of s. 240(3) of the Government of India Act, 1935, which corresponds
to Art. 311 of the Constitution, inasmuch as he was not given an opportunity to
show cause against the order proposed to be made. It is not in dispute that the
opportunity has not been given.
In our view, however, for reasons to be
presently stated, the respondent was not entitled to that opportunity.
On June 8, 1948, the respondent was holding
the post of Inspector in the Central Provinces and Berar Police. Service. He
was appointed to officiate as Deputy Superintendent of Police with effect from
June 9,1948. On January 27, 1949, his services were lent to the Hyderabad
Government in connection with the police action then being taken there. On
February 5, 1949, he was sent back to the central Provinces and Berar. On
February 19, 1949, the Inspector General of Police, Central Provinces and
Berar, passed an order which reads as follows:
"Shri F. A. Abraham (respondent) Deputy
Superintendent Police, Parbhani, is reverted to rank of Inspector." It is
this order which was sought to be impugned by the respondent in the suit out of
which this appeal arises.
95 After the order of reversion had been made
the respondent, on February 23, 1949, asked for the reason for which he was
reverted. On March 3, 1949, the Government refused to communicate the reasons
to him. On May 25, 1949, a confidential memorandum was sent by the District
Superintendent of Police, Parbhani, to the Deputy Inspector General of Police,
Aurangabad, in which he stated that he had conducted an inquiry into certain
allegations of corruption made against the respondent while he was acting in
the service of the Hyderabad Government at Parbhani and he thought that those
allegations were of substance.
Thereupon, the Deputy Inspector General of
Police, Aurangabad, held a departmental inquiry regarding these allegations and
found that they had not been proved. This inquiry had been held behind the back
of the respondent. Notwithstanding this, the order reverting the respondent was
maintained. There is a letter addressed by the Inspector General of Police to
the Chief Secretary to the Government of Madhya Pradesh, dated August 19, 1950,
written after the departmental inquiry wherein it is stated that the
respondents previous record was not satisfactory and that he had been promoted
to officiate as Deputy Superintendent of Police as the Government was in need
of officers and that he had been given a chance in the expectation that he
would turn a new leaf but the complaint made in the confidential memorandum was
a clear proof that the officer was habitually dishonest and did not deserve
promotion. The respondent made representations to the Government to revise the
order reverting him to the lower rank but the Government expressed its
inability to do so. It may be stated here that on the promulgation of the
Constitution the central Provinces and Berar became the State of Madhya Pradesh
in the Indian Union.
In the judgment under appeal the High Court
followed its earlier decision in M. A. Waheed v. State 96 of Madhya Pradesh (1)
in which it had been held that if a person officiating in a higher post is
reverted to his original post in the normal course, that is, on account of the
cessation of the vacancy or his failure to acquire the required qualification,
the reversion does not amount to a reduction in rank but if he is reverted for
unsatisfactory work, then the reversion amounts to reduction in rank. The High
Court held that the Government's plea that the respondent had been promoted as
there was dearth of officers was an afterthought and that the fact that the
respondent had been given a chance to officiate in the higher post prima facie
showed that he was fit to hold that post. The High Court also held that the
Government's refusal to communicate to the respondent the reasons for his
reversion or to give him the report of the inquiry, indicated that the
Government was reverting him on the ground that his work was not satisfactory.
It, therefore, came to the conclusion on the authority of M. A. Waheed's case
(1) that the respondent must be held to have reduced in rank and this reduction
in rank was illegal as the respondent had not been given an opportunity to show
cause against it.
We are unable to agree with the observation
in M. A. Waheed's case(1) that when a person officiating in a post, is reverted
for unsatisfactory work, that reversion amounts to a reduction in rank. A
person officiating in a post has no right to hold it for all times. He may have
been given the officiating post because the permanent incumbent was not
available, having gone on leave or being away for some other reasons.
When the permanent incumbent comes back, the
person officiating is naturally reverted to his original post. This is no
reduction in rank for it was the very term on which he had been given the
officiating post. Again, sometimes a person is given 97 an officiating post to
test his suitability to be made permanent in it later. Here again. it is an
implied term of the officiating appointment that if he is found unsuitable, he
would have to go back. If, therefore, the appropriate authorities find him
unsuitable for the higher rank and then revert him back to his original lower
rank, the action taken is in accordance with the terms on which the officiating
post had been given. It is in no way a punishment and is not, therefore, a
reduction in rank. It has been held by this Court in Parshotam Lal Dhingra v.
Union of India (1) that, "It is, therefore, quite clear that appointment
to a permanent post in a Government service, either on probation, or on an
officiating basis, from the very nature of such employment, itself of a very
transitory character and, in the absence of any special contract or specific
rule regulating the conditions of the service, the implied term of such
appointment, under the ordinary law of master and servant, is that it is
terminable at any time. In short, in the case of an appointment to a permanent
post in a Government service on probation or on an officiating basis, the
servant so appointed does not acquire any substantive right to the post and
consequently cannot complain, any more than a private servant employed on probation
or on an officiating basis can do, if his service is terminated at any
time." The respondent had of course no right to the post of Deputy
Superintendent of Police to which he had been given an officiating appointment
and he does not contend to the contrary. He cannot therefore, without more,
complain if he is sent back to his original post. This is what happened in this
case even if it be taken that the respondent 98 had been reverted to his
original rank because he was found unsuitable for the higher rank to which he
had been given an officiating appointment.
It is however true that even an officiating
person may be reverted to his original rank by way of punishment. It was
therefore, observed in Dhingra's case (1) at p. 863, "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 circumstances 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." It is quite clear
that the circumstances mentioned in this observation have not occurred in the
present case. The reversion has not in any way affected the respondent so far
as his condition and prospect of service are concerned. He of course, lost the
benefit of the appointment to the higher rank but that by itself cannot
indicate that the reversion was by way of punishment because he had no right to
continue in the higher post or to the benefits arising from it. He had been
reverted in exercise of a right which the Government had uncle the terms of the
officiating employment. The High Court seems to us to have been in error in
thinking that the Government's refusal to supply the respondent with the
reasons why action has taken against him proved that the reversion was a
reduction in rank by way of.
punishment; the refusal cannot prove that. It
may give rise to a suspicion about the motive which led the Government 99 to
take the action, but it is now firmly established that if the action is justifiable
under the terms of the employment, then the motive inducing the action is
irrelevant in deciding the question whether the action had been taken by way of
punishment: see Parshotam Lal Dhingra's case (1) at p. 862. It does not require
to be repeated now that unless the reversion is by way of punishment, s. 240
(3) is not attracted.
The High Court seems to have been in error
also in drawing an inference from the holding of the departmental inquiry that
the respondent must have been reduced in rank by way of punishment.
The departmental inquiry was held long after
the order reverting the respondent had been passed and could not have been the
occasion for the reversion of the respondent. The Government had the right to
consider the suitability of the respondent to hold the position to which he had
been appointed to officiate. It was entitled for that purpose to make inquiries
about his suitability. This is all that the Government did in this case. This
inquiry cannot show, whatever the findings may have been, that the reversion
earlier made was by way of punishment.
Mr. Anthony for the respondent referred us to
State of Bihar v. Gopi Kishor Prasad (2) in which it was observed, "But,
if instead of terminating such a person's service without any enquiry, the
employer chooses to hold an enquiry into his alleged misconduct, or
inefficiency, or for or some similar reason; the termination of service is by
way of punishment, because it puts a stigma on his competence and thus affect
his future career." That case dealt with the discharge of a probationer
officer on the ground that he was unsuitable. The observation there made was
considered by this 100 Court in the later case of The State of Orissa v. Ram
Narayan Das (1) where it was said, "The third proposition in the latter
case refers to an enquiry into allegations of misconduct or inefficiency with a
view, if they were found established, to imposing punishment and not to an
enquiry whether a probationer should be confirmed." We would repeat that
in the present case the enquiry was concerned with ascertaining the suitability
of the respondent for the higher rank and was not a punishment.
At one stage Mr. Anthony was inclined to
argue that the enquiry was really a part of the original order of reversion and
that it had been deliberately postponed to as to avoid the applicability of s.
240(3) of the Government of India Act, 1935 No such case is made in the plaint.
Neither was it made in the courts below nor can it be based on their findings.
Such a case cannot now be made.
We think, therefore, that the appeal must be
allowed with costs throughout and we order accordingly.
Appeal allowed.
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