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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