State of Punjab V. Kishan Dass [1971]
INSC 17 (19 January 1971)
SHELAT, J.M.
SHELAT, J.M.
VAIDYIALINGAM, C.A.
CITATION: 1971 AIR 766 1971 SCR (3) 389 1971
SCC (1) 319
CITATOR INFO :
E 1984 SC 885 (23)
ACT:
Constitution of India. Art. 311-Forfeiture of
past serviceIf amounts to reduction in rank.
HEADNOTE:
Pursuant to certain charges against the
respondent, a police constable, his entire service with permanent effect were
forfeited, which meant reducing his salary to the starting point in the time
scale for constables. An appeal by him before the Deputy Inspector General
having failed, be filed a suit. The trial court decreed the suit holding that
the order amounted to reduction in rank, therefore, Art. 311(2) of the
Constitution was attracted and as no show cause notice was served before the
order was passed, the order was vitiated and was bad. The decree was affirmed
by the first appellate court and thereafter in second appeal by the High Court.
Allowing the appeal by the State, this Court,
HELD : The expression "reduction in
rank" in Art. 311(2) has to be construed according to the well-established
meaning it has acquired, as in 'the case of the other two expressions, namely,
'dismissal' and 'removal' in that Article, under the various service rules and
under the provisions in that regard in the Constitution Acts of 1915 and 1935.
The expression "reduction in rank" in the Article, therefore, means
reduction from a higher to a lower rank or post when imposed as a penalty.
Therefore, an order forfeiting the past service which has earned a Government
servant increments in the post or rank he holds, howsoever adverse it is to
him, affecting his seniority within the rank to which he belongs or his future
chances or promotion, does not attract the Article. His remedy, therefore, .is
confined to the rules of service governing his post. [397 E] High Court,
Calcutta v. Amal Kumar Roy, [1963] 1 S.C.R. 437 and Shitla S. Shrivastava v.
North Eastern Rly. [1963] 3 S.C.R. 61, followed.
Parshotam Lal Dhingra v. Union of India,
[1958] S.C.R. 828.
disapproved.
Rupnarain Singh, State of Orissa, A.I.R.
1959, Orissa 167, P. C. Wadhwa v. Union of India, [1964] 4 S.C.R. 598 and
Dubesh Chandra Das v. Union of India, A.I.R. 1970 S.C.
77, distinguished.
Shri Madhav Laxman Vaikunthe v. State of
Mysore' [1962] 1 S.C.R. 886 and Afzalur Rahman v. Emperor, A.I.R. 1943 F.C.
18, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 359 of 1967.
Appeal by special leave from the judgment and
order dated July 29, 1966 of the Punjab High Court in Civil Misc. No. 1144-C of
1966 in Regular Second Appeal No. 340 of 1966.
V. C. Mahajan, for the appellant.
A. N. Nag, for the respondent.
390 The Judgment of the Court was delivered
by Shelat, J. The respondent was at all material times a constable in the
Punjab Police Service and was posted at Ambala. In November 1960, he was served
with a charge sheet attributing to him arrogance towards his superior officers
and indiscipline. A departmental enquiry was admittedly held in accordance with
the procedure laid down therefor in the Punjab Police Rules, 1934. The said
charges having been held to have been proved, an order followed forfeiting his
entire service with permanent effect. This meant bringing down his salary to
Rs. 45/per month, which would be the salary payable to a constable at the
staring point of his service. An appeal by him before the Deputy Inspector-General
having failed, he tiled a suit in the Court of SubJudge,, Ambala.
The suit was on the basis thatthe said order
amounted to reduction in rank, that therefore, Art. 311(2) of the Constitution
was attracted and that no show cause notice against the action proposed against
him having been served upon him before the said order was passed, the order was
vitiated and was bad. The Trial Court accepted this contention and decreed the
suit. An Appeal by the appellant-State failed as the District Judge, relying on
Rupnarain Singh v. State of Orissa(1) held that the said order amounted to
reduction in rank and the respondent was therefore entitled to the procedural
safeguards laid down in Art. 311(2). A second appeal by the State before the
High Court was summarily rejected. Hence this appeal founded on special leave
granted by this Court.
The only question arising in this appeal, the
facts not being in dispute, is whether the order forfeiting-the respondent's
service, which meant reducing his salary to the starting point in the time
scale for constables, amounted to reduction in rank within the, meaning of Art.
311(2). The respondent being a constable., there was no question of his being
reduced from a higher post or rank to a lower post or rank. The order,
nonetheless, reduced the emoluments received by him as it deprived him of the
increments earned by him as a result of the approved service, he had put in,
having been forfeited. It also affected his seniority, and therefore, chances
of promotion. The question is, whether for that reason the order is tantamount
to reduction in rank attracting, Art. 311(2).
Rule 1.13 of he Punjab Police Service Rules
(hereinafter referred to as the Rules) provides that a gazetted police
officer', means a police officer appointed under s. 4 of Act V of 1861.
(1) A.T.R. 1959 Orissa 107.
391 and includes the Inspector General,
Deputy Inspectors General, Assistant Inspectors-General, Superintendents,
Assistant Superintendents and Deputy Superintendents. The expression
"enrolled police officer" means police officers appointed under s. 7
of the said Act and includes inspectors, sergeants, sub-inspectors, asistant
subinspectors, head constables and constables. The expression "upper
subordinate" includes all enrolled police officer of and above the rank of
assistant sub-inspector, and the expression "lower subordinate"
includes all other enrolled police officers. There is thus a hierarchy in the
Police Service of the State comprised of several posts, the post of a constable
being the last rung in the ladder. Rule 13.1, which deals with promotion of
police officers from one rank to another, provides thatsuch promotions from one
rank to another and from one grade to another in the same rank shall be made by
selection tampered by seniority. Cl. 3 of that rule lays down that for purposes
of regulating promotion.
amongst enrolled police officers, six
promotion lists, A, B, C, D, E and F should be maintained. Lists A, B, C and D
are meant to regulate promotion to the selection grade of constables and to the
ranks of head constables and assistant sub-inspectors. List E regulates
promotion to the rank of sub-inspector and List F regulates promotion to the
rank of Inspector. Rule 13.5 deals with promotion of constables to selection
grade and r. 13.6 provides that a list, called List A, shall be maintained by
each Superintendent of Police of constables eligible under r. 13.5 for
promotion to the selection grade of constables. Rule 13.7 provides for a list,
called List B, divided into two parts, namely, selection grade constables
considered suitable as candidates for the Lower School course at the Police
Training School, and constables, selection or time-scale, considered suitable
for drill and other special courses at the Police Training School. Rule 13.8
lays down that promotion to the post of head constable has to be made in
accordance with principle described in sub-rules (1) and (2) of r. 13.1. Rule
13.8-A provides that infliction of any major punishment would be a bar to
admission to or retention in lists A, B or C. Rule
16.1 lays down diverse punishments which can
be awarded to members of the service in accordance with the provisions
contained in these Rules. These punishments are : (1) dismissal, (2) reduction,
(3) stoppage of increment or forfeiture of approved service for increment, (4)
entry of censure, (5) confinement to, quarters for a period not exceeding 15 days,
(6) extra guards. fatigue or other duty, and punishment drill for certain days.
Under r. 16.1(3), a major punishment means any authorized punishment of
reduction, withholding of increments, forfeiture of approved service, dismissal
and every judicial conviction on a criminal charge. Rule 16.4 defines
'reduction' and provides that a police officer may be reduced (a) to a lower
rank (except in the case392 of sergents and of constables on the time-scale),
(b) from the selection grade of a rank to the time scale of the same rank, (c)
if in a graded rank to a lower position in the seniority list of his grade or
to a lower grade in his rank.
Rule 16.5 provides that the increment of a
police officer on a time scale may be withheld as a punishment. Cl. (2) of that
rule provides that approved service for increment may be forfeited, either
temporarily or permanently, and such forfeiture may entail either the deferment
of an increment or increments or a reduction in pay. It further provides that
the order must state whether the forfeiture of approved service is to be
permanent, or, if not, the period for which it has been forfeited. Thus, under
rules 16.4 and 16.5 the two punishments of reduction and forfeiture of service
are two distinct punishments. Rule 16.24 lays down the procedure to be followed
in departmental enquiries. Cl.
(ix) of that rule clearly provides that it is
only in the case of an order of dismissal or reduction in rank that a second
show cause notice against the, proposed action against a police officer has to
be served before an order is passed against him. Such a second show cause
notice is, therefore, not required to be served in the case of other major or
minor punishments. There is no dispute that in the present case the procedure
laid down in these Rules and applicable to the respondent was followed.
The contention, however, was that though the
Rules distinguish the two punishments of reduction and forfeiture of service
and treat them as distinct, there were certain decisions of this Court which
have held that for an order to amount to reduction in rank within the meaning
of Art.
311(2) it was necessary that it must actually
reduce a government servant from a higher to a lower post or rank, and that
even if the order affected adversely his seniority or chances of promotion
within the rank or cadre to which he belongs, it would still constitute
reduction in rank.
Parshotam Lal Dhingra v. Union of India(1)
was one such case on which counsel leaned heavily. But the question there was
whether the reversion of the appellant from Class 11 service, wherein he was at
the relevant time officiating, to Class III service to which he permanently
belonged, amounted to punishment, and therefore, attracted Art. 311(2). The
decision laid down the principle that reduction in rank would be punishment if
it carried with it penal consequences and that the two tests to be applied were
(1) whether the servant had the right to the post or Tank, and (2) whether evil
consequences, such as forfeiture of pay or allowances, loss of seniority in his
substantive rank, stoppage (1) (1958) S.C.R. 828.
393 or post-ponement of future chances of
promotion followed as a result of reduction in rank. The appellant in that case
was holding an officiating post and had therefore no right under the Railway
Code to continue in it. The Court held that since under the general law such
appointment was terminable at any time on reasonable notice, the reduction
could not operate as a forfeiture of any right, and therefore, the order could
not be said to have visited him with any evil consequences. Consequently, it
did not amount to reduction in rank by way of punishment. The decision also
laid down that the words "dismissal", "removal" and
"reduction in rank" used in Art. 311(2) were words of art, having
technical meanings, they having been adopted from service rules prevailing
earlier, such as Classification Rules of 1920 and 1930, and having therefore
acquired well-known meanings. Under those rules, dismissal, removal and
reduction in rank were major punishments providing special procedural
protection. On examination of the history of the service rules, s. 96B(i) of
the Government of India Act, 1915, and s. 240 of the 1935 Act, the Court held
that "both at the date of the commencement of the 1935 Act and of our
Constitution the words "dismissed", "removed" and
"reduced in rank", as used in the service rules, were-well-understood
as signifying or denoting the three major punishments which could be inflicted
on Government servants". The decision concluded that "the principle
is that when a servant has right to a post or to a rank either under the terms
of the contract of employment, express or implied, or under the rules governing
the conditions of his service, the termination of the service of such a servant
or the reduction to a lower post is by itself and prima facie a punishment, for
if operates as a forfeiture of his right to hold post or that rank and to get
the emoluments and other benefits attached thereto". The passage in the judgment
emphasised before us was :
"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, than 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 post or rank cannot in any circumstances be a
punishment. The real test for determining whether the reduction in such cases
is 394 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." According
to this decision, reduction in rank within the meaning of Art. 311(2) means
reduction from a higher to a lower rank or post in the hierarchy of the service
to which a government servant seeking protection of that article belongs and'
not reduction in the same rank, e.g., losing places in seniority in the rank to
which he belongs.
Shri Madhav Laxman Vaikunthe v. The State of
Mysore(1) another decision relied on by counsel, was a case of a Mamlatdar,
officiating as a District Deputy Collector. His reversion from the officiating post
to his permanent post was held to be punishment attracting Art. 311 (2). This
was a clear case of reduction in rank as the reversion brought down the
appellant from a higher to a lower post. It did not merely affect his seniority
or the stage at which he was in the time-scale to which he belonged in the
hierarchy of service.
The decision in point really is The High
Court Calcutta v. Amal Kumar Roy(2) where the respondent, a Munsif, was excluded
by the High Court from consideration for the post of a Subordinate Judge for a
year thereby depriving him eight places in the cadre of Subordinate Judges when
he was appointed an Additional Subordinate Judge. The respondent's contention
was ,that such an exclusion amounted to withholding of promotion or reduction
in rank. The first part of the contention was rejected on the ground that he
had no right to promotion and the second on the ground that deprivation, of
eight places in seniority in the same rank did not constitute reduction in
rank. This decision was followed in Shitla S. Srivastava v. North Eastern
Railway(1) where it was held that the removal of the appellant's name from a
provisional panel of persons for consideration for higher posts did not attract
Art. 311 (2) as it did not amount to reduction in rank. The Court held that the
expression "rank" in Art. 311(2) had reference to a person's
classification and not his particular place in the same cadre in the heirarchy
of the service to which he belongs.
It is thus clear that reduction in rank
within the meaning of Art. 311(2), as the expression itself suggests, means
reduction from a higher to a lower rank or post and not merely losing places in
the rank or cadre to which the Government servant belongs, and consequently,
his seniority within such cadre or rank.
(1) [1962] 1 S.C.R. 886.
(3) [1966]3 S..C.R. 61.
(2) [1963]1 S.C.R.437.
395 This would be so, even if as a result of
the Government's action. he loses a higher salary or his chances of promotion
to a higher post are reduced. For such action, the remedy would be under the
rules governing, the service and not under Art. 311(2) as such action does not
amount to reduction in rank as understood for the purposes of Art. 311 (2).
Counsel for the respondent, however, argued
that there were other decisions which have held otherwise and assisted him.
P. C. Wadhwa v. Union of India(1) was one
such decision which, he thought, assisted him. In that case, the appellant was
officiating in the senior time-scale and was posted at Ferozepore as an
Additional Superintendent of Police. In July 1958, he was reverted to his
substantive post. The reason for the reversion was that he was tried as a
Superintendent of Police and was found to be immature.
The record showed that the reversion was not
due to the return of the permanent incumbent from leave or deputation or for
any other administrative reason and other officers junior to him continued in
the senior time-scale while he was reverted. The record also revealed that an
enquiry was not resorted to only for the reason that it would take a long time.
His contention in these circumstances was that his reversion amounted to
reduction in rank. That was accepted because it would seem from the facts that
the reversion was from senior time-scale to junior time-scale of the service.
Though both the posts were cadre posts in the Police Service, the reversion was
from the post of the Additional Superintendent of Police to one of Assistant
Superintendent of Police, the former obviously being a post higher than the
latter. Although both the posts were in the same cadre, promotion from the
junior to the senior timescale was by seniority. It is clear, therefore, that
appointment of one in the junior time-scale to a post in the senior time-scale
was promotion, and therefore, appointment to a higher post. Such is not,
however, the position, in the instant case.
Dubesh Chandra Das v. Union of India (2) was
another decision relied upon by Mr. Nag. The appellant there was the Chief
Secretary of Assam and a member of the Indian Civil Service. He was appointed a
Secretary in the Union Government, a tenu repost, the tenure period of which
was to expire in July 1969. In September 1966, he was asked to choose between
reversion to the service of his parent State or compulsory retirement. He,
complained against the order by a writ petition contending that the order was a
stigma and amounted to reduction in rank, which, therefore, could not be passed
without undergoing the procedure laid down in Art. 311(2). His appointment as
the Secretary (1) [1964]4S.C.R.598.
(2) A.I.R. 1070 S.C. 77.
396 at the Centre was not by way of
deputation but was by way of appointment to a tenure post. This Court held, on
an examination of the rules, that cadres for the Indian Administrative Services
were to be found in the States only, that there were no cadres in the
Government of India, that a few of them were, however, intended to serve at the
Centre and when they did so, they enjoyed better emoluments and better status.
Such an appointment, the Court held, meant promotion to a higher post. In the
circumstances, the -order amounted to the appellant's reduction from a higher
to a lesser rank. This, again, was a case where the government servant was
reverted from a post higher than the post of the Chief Secretary, Assam, and
not a reduction in the same time-scale post or deprivation of places in the
same time-scale post thereby adversely affecting his seniority therein or
chances of promotion.
The decision of the High Court of Orissa in
Rupnarain Singh v. Orissa(1) would apparently assist the respondent, for, the
impugned order there was similar to the one in the instant case. That order
directed that the petitioner, who was then serving as a forester, be reduced to
the lowest scale of Rs. 50,1in the, scale of pay of Rs. 50-2-70 fixed for the
foresters. The High Court upheld' the contentions of the petitioner, viz., (1)
that the order was punishment, and (2) that it amounted to reduction in rank
within the meaning of S. 240(3) of the 1935 Act and Art. 311(2). These conclusions
were reached on two premises. 'The first was that r. 2 of the Bihar and Orissa
Subordinate Services Discipline and Appeal Rules in cl. (iii) provided, amongst
others, the punishment of "reduction to a lower post or time scale or to a
lower stage in the time-scale". Following the decision in Afzalur Rahman
v. Emperor(2) where the Court had observed that in construing s. 240 of the
1935 Act, the long standing service practice based on statutory rules in force
long before the passing of the 1935 Act, and which were continued in force by
that Act. should be considered, the High Court held that the expression
"reduction in rank" in s. 240(3) must also include reduction to a
lower stage in the time-:scale as r. 2 (iii) had treated reduction to a lower
post and "reduction to a lower stage in the timescale" as one kind of
punishment. Such a reasoning does not apply to the present case because r. 16.1
of the Punjab Police Rules makes a 'clear distinction between
"reduction" and stoppage of increment ,or forfeiture of approved
service for increment, the two being distinct and separate punishments
permissible under that rule. The second premise upon which the High Court
reached the said conclusions rested on the observations in Dhingra's case(1),
wherein this Court laid down the criterion to judge whether an order is a (1)
A.I.R. 1959 orissa 167 P.C. (2) A.I.R. 1943 F.C. 18.
(3) [1958] S.C.R. 828.
397 punishment or not by observing that it
would be punishment if the: order entailed or provided for forfeiture of pay or
allowances or loss of seniority in his substantive rank or stoppage or
postponement of his future chances of promotion.
The passage relied on the High Court laid
down determinents for treating an order as. one of punishment and not a test
for reduction in rank. As already stated, in Dhingra's case(1) the impugned
order was held to be one of reduction in rank because the appellant there was
reduced from Class 11 to Class III service, i.e., from a higher to a lower
post, the time-scales of the two posts being different. The reduction of rank
was held not to be a punishment because the appellant was not entitled to the
better post wherein he was merely officiating and therefore did not visit him
with any evil consequences. The observations relied on by the High Court thus
related to the question whether the impugned order was one of punishment and
not for deciding whether it amounted to a reduction in rank and were,
therefore, not apposite. The basis for the, second premise of the High Court,
therefore, was not correct and therefore cannot help the respondent.
The aforesaid analysis of the decisions leads
us to the conclusion that the expression "reduction in rank" in Art.
311 (2) has to be construed according to the
well established meaning it has acquired, as in the case of the other two
expressions, namely, dismissal' and 'removal' in that article, under the
various service rules, and the provisions in that regard in the Constitution
Acts of 1915 and 1935. The expression "reduction in rank" in the
article, therefore, means reduction from a higher to a lower rank or post when
imposed as a penalty. Therefore, an order forfeiting the past service which has
earned a government servant increments in the post or rank he holds, however
adverse it is to him, affecting his seniority within the rank to which he
belongs or his future chances of promotion does not attract the article. His
remedy, therefore, is confined to the rules of service governing his post. In
our view, neither Parshotam Lal Dhingra's case(1) nor Rupnarain Singh's case(2)
assisted the respondent, as the first does not lay down what he contended and
the second was not correctly decided.
The result is that the State's appeal
succeeds and must be allowed. Consequently, the respondent's suit has to be dismissed.
In the circumstances of the case, however, there will be no order as to costs.
Y.P. Appeal allowed.
(1) [1958] S.C.R. 828 (2) [1958] S.C.R. 828
(3) A.I.R. 1959 Orissa 167 P.C.
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