Regional Manager & ANR Vs. Pawan
Kumar Dubey [1976] INSC 42 (8 March 1976)
RAY, A.N. (CJ) RAY, A.N. (CJ) BEG, M.
HAMEEDULLAH SINGH, JASWANT
CITATION: 1976 AIR 1766 1976 SCR (3) 540 1976
SCC (3) 44
CITATOR INFO :
RF 1976 SC2547 (21) D 1980 SC1459 (7) RF 1981
SC 965 (6) R 1987 SC2408 (4)
ACT:
Constitution of India, 1950, Art. 16 and
311(2), when applicable.
Civil servant-Reversion of-order apparently
innocuous when really punitive Art. attracting Art. 16 and 311(2).
HEADNOTE:
The respondent was reverted from the higher
post in which he was officiating, to his substantive post, by an order which
stated that he was 'not fit yet' for the higher post. His juniors continued to
officiate in the higher post.
Till some time before the order of reversion,
the respondent was praised by his superior officers, but, during a period of
about six months before the reversion, there was a spurt of warnings,
complaints, and adverse remarks, alleging disrespect, disobedience to orders,
and that he cast aspersions on his superior officer. the respondent asked for
particulars to meet the allegations, but they were not given to him. His
representation against the last adverse entry was pending when the reversion
order was passed. He challenged the order and the High Court, following State
of U.P. v. Sughar Singh [1974] 2 S.C.R. 333, quashed the order, holding that
the reversion was a punishment in the light of the circumstances preceding the
order, from the terms of the order, and its effect on the respondent's
future-and that there was a violation of rules of natural justice.
In appeal to this Court by special leave, the
appellant contented that the High Court misunderstood Sughar Singh's case.
Dismissing the appeal, ^ HELL): (1) As the
reversion order was punitive and passed contrary to the rules of natural
justice embodied in Art. 311(2), it must be quashed. The authorities are,
however, free to take action, either in accordance with applicable rules for a
comparative assessment of the merits of the respondent and others who may be
eligible, or to take disciplinary proceedings. [550A-B] (a) In Sughar Singh's
case, this Court was only following the law on Art. 311(2) as laid down
repeatedly. In that case also the reversion of Sughar Singh was apparently not
punitive, but, since it could not be explained except as a result of an adverse
entry made two years earlier, it was held to be by way of punishment. On this
view it was not necessary to consider whether there was a violation of Art.
16, but this Court held that there was. What
weighed with this Court was not only that there was a sufficient element of
punishment in reverting him so that Art. 311(2) had to be complied with, but
that there was also enough of impropriety and unreasonableness in the action
taken solely for a very stale reason which had become logically disconnected
and extraneous, to make out a case of 'malice in law' if not 'malice in fact'.
[545H-546F] (b) Whether an apparently innocuous order is punitive or amounts to
unjustifiable discriminatory action violating either Art. 311 or Art. 16
depends on the facts of the case.
[549E] (c) This Court has, in Shamsher Singh
v. State of Punjab [1975] 1 S.C.R. 814, laid down authoritatively the
conditions necessary in such cases for the applicability of Art. 311(2) after
considering all the previous cases and there is no scope for any
misapprehension of the law. [544C] (d) As regards Art. 16, before it is held to
have been violated, there must be discrimination between one Government servant
and another, similarly placed. which cannot be reasonably explained except on
the basis of 'malice in law' or 'malice in fact'. But, the person who alleges
such malice in law must 541 satisfactorily establish it on proved or admitted
facts as in State of Mysore v. A Kulkarni (AIR 1972 SC 2170). When the
allegations, are of 'malice in fact' which are disputed and require a detailed
adduction of evidence or examination of witnesses, the Court will leave the
party aggrieved to an ordinary civil suit and will not exercise its discretionary
power under Art. 226. Reversion of an officer as a result of administrative
exigencies, without any suggestion of malice in law or in fact, is unaffected
by Sughar Singh's case, and is not vitiated even if some Government servants,
junior to him, have not been reverted. [547B-D, F-G] (e) The facts of the
present case are similar to those of Sughar Singh's case and the High Court was
right in holding that there was a violation of the principles of natural
justice embodied in Art. 311(2). [548F-G] There were no administrative reasons
for the respondent's reversion. If there had been anything really serious
against him, proceedings under Art. 311(2) should have been instituted. The
sudden reversion for the reason given in the order amounts to unjustified stigma
which could not be said to be devoid of the element of punishment.
[548G-H, 549D-L] (f) If he was really unfit
as compared with his juniors there could have been a fair comparison with them
at a time when such assessment is called for under the rules (rules should be
made if there are none) and on such a comparative assessment of merits, the
juniors could have been preferred ensuring that there was no violation of Act.
16. Dealings of superior officers with their subordinates in Government must be
shown to be based on fair play and reason. But it is not necessary to invoke
the aid of Art. 16 to quash the order.
[549 C-D, E-, 550B] (2) Even if the High
Court should not have interfered, it is not a fit ease for interference by this
Court under Art. 136, as it is still open to the authorities to proceed in a
just and legal way against the respondent if necessary.
[549F-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1844/1975.
(Appeal by special leave from the judgment
and order dated the 17-7-1974 of the Allahabad High Court in special appeal No.
121 of 1974) R. N. Trivedi and O. P. Rana, for the appellants.
S. C. Aggarwal and V. J. Francis, for the
respondent.
The Judgment of the Court was delivered by
BEG, J. This appeal by special leave granted to the Regional Manager of U.P.
State Road Transport Corporation, Allahabad, challenges the findings of a
learned single Judge, affirmed by a Division Bench of the Allahabad High Court
holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a
Senior Station Incharge, in which he was officiating, to his substantive post
of a Junior Station Incharge by means of an order dated 20-2-1973 passed as a
measure of punishment inflicted upon him for alleged misconduct indicated by an
adverse entry communicated to him by a letter dated 25th January, 1973.
His juniors, it was found, were still
officiating in posts of Senior Station Incharge. The respondent's chances of
promotion were said to be adversely affected by the reason given for the reversion
in the impugned order: that the respondent was "not fit yet" for the
higher post.
The learned single Judge and the Division
Bench in the Allahabad High Court were referred to several decisions of this
Court mentioned by the Division Bench These were: State of Bombay v. F. A.
542 Abraham(1); Champaklal Chimanlal Shah v.
Union of India(2) Divisional Personnel Officer v. Raghavendrachar(3); and State
of U.P. & Ors. v. Sughar Singh(4).
The Allahabad High Court had followed what it
considered to be the ratio decidendi of Sughar Singh's case (supra), the last
case of this Court available at the time.
Special leave to appeal was sought in the
case before us on the ground that Sughar Singh's case (supra) had been
misunderstood by the High Court and required some elucidation by this Court.
Special leave was granted on condition that, in any event, the costs of the
respondent will be borne by the appellants. The question to be determined was
assumed to be one of law only. The appeal was, therefore, to be heard on the
special leave paper 'Book with such additional documents from the record of the
case as the parties may choose to file.
We find that, although a number of documents
were filed, neither side has chosen to- file a copy of the order impugned which
has been interpreted by the single Judge as well as by the Division Bench of
the Allahabad High Court as one amounting to award of a punishment not merely
in the light of the circumstances preceding the order but also from the terms
of the order itself and its effect upon the respondent's future. The question,
therefore, arises whether we really have before us any point of law of such a
nature as to justify interference in exercise of the exceptional powers of this
Court under article 136 of the Constitution.
Even though we have come to the conclusion
that the question before us is substantially one of fact, we would like to
explain a little the law applicable to such cases in view of the submission
that Sughar Singh's case (supra) had led to some misunderstanding of it. Not
much clarification seems necessary so far as conditions for the application of
Article 311(2) are concerned as this question has been considered and decided
by this Court in a number of cases including the recent decision by a bench of seven
Judges of this Court in Shamsher Singh & Anr. v. State of Punjab (5).
It was pointed out in that case (at p. 937):
"No abstract proposition can be laid
down that where the services of a probationer are terminated without saying
anything more in the order of termination than that the services are terminated
it can never amount to a punishment on the facts and circumstances of the case.
If a probationer is:
discharged on the ground of misconduct, or,
inefficiency, or for similar reason, without a proper enquiry and without his
getting a reasonable opportunity of showing cause against his discharge, it
may, in a given case, amount to removal from service within the meaning of
Article 311(2) of the
(3) [1966] (3) S.C.R. 106. (4) [1974] 2
S.C.R. 335.
(5) [1975] (1) S.C.R. 314.
543 Shamsher Singh's case (supra) related to
an order of termination of services of a probationer which, on the face of it,
appeared to be innocuous. Nevertheless, this Court, after examining the facts
and circumstances constituting the background of the order and its
consequences, held it to be substantially one of punishment and set it aside
for a violation of Article 311(2) of the Constitution. It was explained there
(at p. 837):
"Before a probationer is confirmed, the
authority concerned is under an obligation to consider whether the work of the
probationer is satisfactory or whether he is suitable for the post. In the
absence of any Rules governing a probationer in this respect the authority may
come to the conclusion that on account of inadequacy for the job or for any
temperamental or other reason not involving moral turpitude the probationer is
unsuitable for the job and hence must be discharged. No punishment is involved
in this. The authority may in some cases be of the view that the conduct of the
probationer may result in dismissal or removal on an inquiry. But, in these
cases, the authority may not hold an inquiry and may simply discharge the probationer
with a view to giving him a chance to make good in other walks of life without
a stigma at the time of termination of probation. If, on the other hand, the
probationer is faced with an inquiry on charges of misconduct or inefficiency
or corruption, and, if his services are terminated without following the
perversions of Article 311(2), he can claim protection. In Gopi Kishore Prasad
v. Union of India A.I.R. 1960 S.C., 689, it was said that if the Government
proceeded against the probationer in the direct way without casting any
aspersion on his honesty or competence, his discharge would not have the effect
of removal by may of punishment. Instead of taking the easy course, the
Government chose the more difficult one of starting proceedings against him and
branding him as a dishonest and incompetent officer".
It was also observed in Shamsher Singh's case
(supra) (at p. 838) "The fact of holding an inquiry is not always
conclusive. What is decisive is whether the order is really by way of
punishment. (See: State of Orissa v.
Ramnarain Das (1961) 1 S.C.R. 606. If there
is an enquiry, the facts and circumstances of the case will be looked into in
order to find out whether the order is one of dismissal in substance (see:
Modan Gopal v.
State of Punjab (1963) 3 S.C.R. 716). In R.
C. Lacy v. State of Bihar & ors., (Civil Appeal No. 590 of 1962 decided on
23 October, 1963) it was held that an order of reversion passed following an
enquiry into the conduct of the probationer in the circumstances of the case was
in the nature of preliminary inquiry to enable the Government to decide whether
disciplinary action should be taken. A probationer whose terms of service
provided that it could be terminated without any notice and without any 544
cause being assigned could not claim the protection of Article 311(2). [See: R.
C. Banerjee v. Union of India (1964) 2 S.C.R. 135]. A preliminary inquiry to
satisfy that there was reason to dispense with the services of a temporary
employee has been held not to attract Article 311 [see. Champaklal C. Shah v.
Union of India (1964 (5) S.C.R. 190]. On the other hand, a statement in the
order of termination that the temporary servant is undesirable has been held to
import an element of punishment [See: Jagdish Mitter v. Union of India, A.I.R.
1964 S.C. 449]".
We think that the principles involved in
applying Article 311(2) having been sufficiently explained in Shamsher Singh's
case (supra) it should no longer be possible to urge that Sughar Singh's case
(supra) could give rise to some misapprehension of the law. Indeed, we do not
think that the principles of law declared and applied so of have really
changed. But, the application of the same law to the differing circumstances
and facts of various cases which have come up to this Court could create the
impression sometimes that there is some conflict between different decisions of
this Court. Even where there appears to be some conflict, it would, we think,
vanish when the ratio decidendi of each case is correctly understood. It is the
rule deducible from the application of law to the facts and circumstances of a
case which constitutes its ratio decidendi and not some conclusion based upon
facts which may appear to be similar. One additional or different fact can make
a world of difference between conclusions in two cases even when the same
principles are applied in each case to similar facts.
We have examined the record of the case of
Sughar Singh (supra). our judgment in the case perhaps does not fully bring out
the factual background on which the decision of that case was based. In that
case, the Government servant concerned had been suspected of making an
alteration in his own service record. It was not shown how he could possibly
have had access to his service record as he was not in charge of the record.
One of the alterations made meant an increase in his age so that he would,
according to the altered state of the record, have had to retire earlier.
Sughar Singh complained, when asked to show
cause against the alleged tampering, that it must have been manipulated by his
enemies interested in injuring him. It could not be determined who was
responsible for the alterations.
Nevertheless, the following adverse entry was
made on Sughar Singh's record:
"1966-Is suspected to have got entries
of date of birth and educational qualifications altered on the authority of a
fictitious certificate which had to be corrected later on. Severely
warned".
Two years later, as a result of this entry
based expressly on bare suspicion, without further inquiry into the question
whether Sughar Singh could be responsible for tampering with the record, a
reversion order, innocuous on the face of it, had been made on 12th August
1968. The effect of the reversion order was that Sughar Singh who, 545 apart from
this entry, had an excellent record, was reverted from a post in which he had
been officiating from 16th March, 1961, until the reversion order dated 12th
August, 1968. It was shown that about 200 officers, junior to him, were still
officiating in the cadre from which Sughar Singh had been reverted to his
substantive post of Head Constable.
No administrative need or exigency could be
shown to justify the reversion order. All officers, including Sughar Singh, who
had been officiating, had been selected after special training for the higher
cadre. The question, naturally arose: Why was Sughar Singh selected for this
discriminatory treatment ? A single Judge of the Allahabad High Court held,
acting on the Principle that a mere reversion, from a post to which the
incumbent had no right, did not amount to punishment within the meaning of
Article 311(2) so that Sughar Singh had no remedy. He only took the for of the
action into account. No further probe was considered necessary by the learned
Judge. When the case came before a Division Bench, in special- appeal, one of
the learned Judges agreed with the learned single Judge who had dismissed
Sughar Singh's position merely on the ground that Sughar Singh had no right to
the post without considering the impact of the surrounding facts or the
background of the order. The other learned Judge, however, carefully examined
the background of Sughar Singh and the reversion order as revealed by facts on
record. He pointed out that the averments of Sughar Singh, that he had a
splendid record, apart from the adverse entry in question, and that there was
no inefficiency on his part, were not controverted in the counter-affidavit
filed. This learned Judge found the reversion order against Sughar Singh to be
punitive. He, however, added that, even if the order could not be held to be
punitive, it was certainly violative of the guarantee contained in Article
16(1) of the Constitution.
When the matter was heard by Verma, C.J., on
a reference occasioned by the difference of opinion between the two learned
Judges on the Division Bench, it was again argued that both Articles 16(1) and
311(2) had been infringed. The learned Chief Justice did not find sufficient
material to uphold a violation of Article 16. But, after taking into account
the admission of the Counsel appearing for the State that the sudden reversion
of Sughar Singh could not at all be explained or accounted for unless it could
be linked with the adverse entry, the learned Chief Justice held the action
against Sughar Singh to be punitive and violative of Article 311(2) of the
Constitution. Sughar Singh had been held to have been punished for nothing
beyond what had taken place two years before the reversion order so that it
could not have been justly or reasonably connected with the delayed action
based upon it. This Court could have dismissed the appeal by special leave
solely on the ground that no question of law arose on the finding of fact, also
upheld by this Court that Sughar Singh was punished, in substance, so that Article
311 (2) was attracted.
This Court's judgment in Sughar Singh's case
(supra) shows that it was only following the law on Article 311(2) of the
Constitution as laid down repeatedly earlier by this Court. It specifically
referred to 546 the following cases: Purshotam Lal Dhingra v. The Union of
India(1); State of Punjab & Anr. v. Sukh Rai Bahadur(2);
State of Orissa v. Ram Narayan Das(3); B. C.
Lacy v. State of Bihar(4); Jagdish Mitter v. Union of India(5); A. G.
Benjamin v. Union of India(6); Ram Gopal
Chaturvedi v. State of Madhya Pradesh(7); Union of India v. Gajendra Singh(8);
Divisional Personnel Officer v.
Raghavendrachar (supra);
Union of India v. Jaswan Ram (9); Madhav v.
State of Mysore(10); State of Bombay v. Abraham (supra),. In Sughar Singh's
case, this Court summarised the propositions of law deducible from the cases
mentioned above; and, while considering the applicability of some of the
propositions of law to the facts of the case, it did observe that, on the face
of it, the action against Sughar Singh did not appear to be punitive.
Nevertheless, on a total consideration of all the facts, including the
admission in the High Court before Verma, C.J., by the Standing Counsel
appearing on behalf of the State, that the reversion order could not be
explained except as a result of the adverse entry made two years earlier, it
had finally applied the ratio decidendi of the State of Bihar & Ors. v.
Shiva Shukshuk Mishra(11), where this Court had affirmed the opinion of the
High Court, on facts, that the "reversion was not in the usual course or
for administrative reasons but it was after the finding on an enquiry about
some complaint against the plaintiff and by way of punishment to him". On
this view of the case, it was not really necessary for this Court to consider
whether the reversion of Sughar Singh was contrary to the provisions of Article
16 also. Nevertheless, this Court held there, alternatively, after referring to
State of Mysore v. P. P.
Kulkarni (19), that the action taken against
Sughar singh also resulted in a violation of the provisions of Articles 14 and
16 of the Constitution. It seems to us to be clear, after examining the record
of Sughar Singh's case (supra), that what weighed with this Court was not only
that there was a sufficient "element of punishment" in reverting
Sughar Singh: for a supposed wrong done, from which the order of reversion
could not be divorced, so that Article 311(2) had to be complied with, but,
there was also enough of an impropriety and unreasonableness in the action
taken against Sughar Singh, solely for a very stale reason, which had become
logically quite disconnected, to make out a case of "malice in law"
even if it was not a case of "malice in fact". If an authority acts
on what are, justly and logically viewed, extraneous sounds, it would be such a
case. All these aspects of the case were kept in view. by this Court when it
recorded the conclusion:
"In this view of the matter, we have no
doubt that the order was passed by way of punishment, though all outward
indicia show the order to be a mere order of reversion. Even if it were not so,
we have no doubt that the order would be (1) [1958] S.C.R. 828. (2) [1968] (3)
S.C.R. 23.
(3) [1961](1) S.C.R. 606. (4) C.A. No. 590 of
1962 decided on 23-10-63.
(5) A.I.R. 1964 S.C. 449. (6) C.A. No. 1341
of 1966 decided on 13-12-66.
(7) [1970](1) S.C.R. 472. (8) [1972](3)
S.C.R. 660.
(9) A.I.R. 1958 S.C. 905. (10) A.I.R. 1962
S.C.
811. (11) [1971](2) S.C.R.191 (12) A.I.R.
1972 S. C. 2170.
547 liable to be quashed on the ground of
contravention of Articles 14 and 16 of the Constitution".
We do not think that Sughar Singh's case, in
any way, conflicts with what has been laid down by this Court previously on
Article 311(2) of the Constitution or Article 16 of the Constitution. We would,
however, like to emphasize that, before Article 16 is held to have been
violated by some action there must be a clear demonstration of discrimination
between one Government servant' and another, similarly placed, which cannot be
reasonably explained except on an assumption or demonstration of "malice
in law" or "malice in fact". As we have explained, acting on a
legally extraneous or obviously misconceived ground of action would be a case
of "malice in law". Orders of reversion passed as a result of
administrative exigencies, without any suggestion of malice in law or in fact,
are unaffected by Sughar Singh's case (supra). They are not vitiated merely
because some other Government servants juniors in the substantive rank, have
not been reverted.
This Court has held in S. C. Anand v. Union
of India(1), that no question of applying Articles 14 or 16 could arise where a
termination of service takes place in terms of a contract of service. Again, in
Champaklal Chiman Lal Shah (supra), this Court held that the motive behind an
order of termination of service, in accordance with the terms of a contract,
would not be really relevant even if an enquiry had been held to decide whether
proceedings under Article 311(2) should be instituted or the services of a
Government servant terminated in terms of his contract.
Champaklal Chimanlal Shah's case (supra was
not one in which any question of mala fides arose. Protection of Article 16 was
claimed there on the ground that Rule 5, providing for termination of services
of temporary servants, was itself hit by Article 16. Such a contention was
repelled. On the other hand, Kulkarni's case (supra), relied upon in Sughar
Singh's case (supra), was one in which "misuse of power" or
detournement de puvoir" (as it is called in French Administrative law),
had been proved. Another term for such use of power for an improper object is
"malice in law".
We repeat that, before any such case of
"malice in law can be accepted, the person who alleges it must satisfactorily
establish it on proved or admitted facts as it was in Kulkarni's case (supra).
Where the allegations are of malice in fact, which are generally seriously
disputed, and the case cannot be satisfactorily decided without a detailed
adduction of evidence of cross-examination of witnesses, Courts will leave the
party aggrieved to an ordinary civil suit. This rule, relating to exercise of
discretionary powers under Article 226, is also well settled.
We have tried to gather, from such materials
on the record of the case before us as have been made available to us by the
parties, the spirit and substance", to use the expressions employed by
this Court in Champaklal's case e (supra), of the action taken against the
contest- (1) A.I.R. 1953 S.C. 250.
548 ing respondent. We have examined the
background of the order of reversion. We find that, on the one hand, there is
fulsome praise, ill testimonials given to the respondent by his superior
officers, for meritorious work done by him. On the other hand, we find that,
preceding the order of reversion, passed on 20th February, 1973, against the
respondent, there is a spurt of warnings and very vague complaints and adverse
remarks of 30th September, 1972, and 4th October, 1972, 21st October, 1972, and
25th January, 1973, presumably all by a particular superior officer, alleging
disrespect shown, disobedience to orders given, and aspersions said to have
been cast by the respondent against the conduct of the superior officer. The
respondent was warned by this superior officer, an Assistant General Manager,
by a letter dated the 4th October, 1972. There is also a copy of an order on a
complaint against the respondent that the respondent had misused the services
of a Chowkidar. The detailed order of 2nd June, 1970, shows that, although, the
complaint was dismissed by the General Manager, yet, he had admonished the
respondent and had advised him to conduct himself more respectfully towards
superior officers and to be "sweet tempered". There were some old
adverse entries also against the respondent. But, they must be deemed to have
been washed off by orders of his promotion, on an "ad hoc" or
officiation basis, by an order of 7th March, 1972, which had been approved by
the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as
required by the rules. It appears that the respondent had asked for particulars
to meet the vague allegations of insubordination and disobedience which had
found their way into his service record for 1972 to 1973. It has not been shown
that the respondent was supplied with these particulars. He professed ignorance
of occasions on which he had been disrespectful or of existence of any orders
which had been disobeyed by him. These particulars could have been easily
supplied to him if the allegations against him were justified The respondent's
representation against the last adverse entry, of the kind indicated above,
made on 25th January, 1973, was pending when the reversion order of 20th
February, 1973, was passed. His allegations that his juniors are still holding
the posts in the cadre in which he was officiating and that there are no
administrative reasons for his reversion are not controverted. In these
respects, the facts of the case are similar to those of Sughar Sungh's case
(supra). In addition, as the High Court points out, the express condemnation of
the respondent as "not fit" for the higher post, in which his juniors
were allowed to officiate, categories him as inferior to his juniors even if it
was qualified by the addition of the word "yet". The only possible
justification which could be offered for this discriminatory treatment were the
sudden adverse entries of 1972-73 against the respondent which were quite
vague.
If there had been anything really serious
against the respondent, proceedings under Article 311 (2) of the Constitution
should have been instituted. Indeed, they can still be taken if there are
substantial grounds against the respondent. On the other hand, if the action
against him is due merely to a feeling of pique or anger with him on the part
of his superior officers, to which the respondent's tactlessness 549 may have
contributed, it did not deserve anything more than the warnings and the adverse
entry. Indeed, even the bona fides of the last adverse entry becomes doubtful
when we find that the respondent was not, despite his requests, given
particulars of any facts upon which the conclusion that he was disrespectful or
disobedient was based. To allege such misconduct against him and then to
stigmatise the respondent as "not fit" for working in the higher post
could appear, on the facts and circumstances of the particular case, to be more
vindictive than just and fair.
It may mar or delay his chances of promotion
in future. We, however, refrain from commenting further on what may or may not
have been the real cause of the respondent's reversion.
If the respondent is really unfit or
inefficient, as compared with his juniors, there is no reason why, on a
comparative assessment of merits, at a time when such assessment may be called
for under the rules (there should be rules on the subject if there are none so
far), his juniors in service should not be preferred over him. A decision given
after fair comparisons with records of others officiating in the same cadre
would have ensured that no violation of Article 16 took place. The sudden
reversion of the petitioner, for the reason given in tile reversion order,
could be held to amount to an unjustified stigma which could not be said to be
"devoid of an element of punishment".
As we have indicated, there is no magic
formula or uniform set of facts which could convert even an apparently
colourless or innocuous order into punitive or unjustifiably discriminatory
action. It is, however, well established that even an apparently inoffensive
order may fail to pass tested imposed by Articles 16 and 311 of the
Constitution. Dealings of superior officers with their subordinates in
Government service in a Welfare State must be shown to be based on fair-play
and reason when facts are actually proved which indicate that these
requirements may be lacking.
Even if the case before us could be one in
which the High Court could have refrained from interfering, we do not consider
it to be a fit case for invoking our jurisdiction under Article 136 of the
Constitution. The High Court has only quashed an order of reversion which was
detrimental to the respondent and was passed in violation of rules of natural
justice. It did not give the respondent any other or consequential relief. And,
as we have already indicated, it is still open for the authorities to proceed
in a just and legal way against the respondent if there is really a substantial
case against him deserving punitive action.
As we are leaving the authorities free to
take action, in accordance with either applicable rules for a comparative
assessment of merits of 550 the respondent and others who may be eligible to
officiate in the post of a Senior Station In-charge, or, to take disciplinary
proceedings, it considered necessary no observation made that in this judgment
or by the High Court will operate as a finding on any question except that the
quashed reversion order was punitive and passed contrary to rules of natural
justice embodied in Article 311(2). It is not necessary to invoke the aid of
Article 16 of the Constitution at all on such a finding. This, we think, was
also the position in Sughar) Singh's case (supra) .
This appeal is dismissed with costs.
V.P.S. Appeal dismissed.
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