STATE OF BIHAR & ORS. versus SHIVA BHIKSHUK MISHRA

. Grover, This is an appeal by certificate from a judgmcnl of the Patna High Court. The respondent was holding the substnn· tive post of a Sergeant in the police force till July 31, I 946 in the State of Bihar. On August I, 1946 he was promoted to nfficia\c in. the higher post of Subedar. On 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 Oc- . tober 3, 1950 the Commandant of the Bih.ar Military Police, Muzaffarpur wrote to the Deputy Inspector General of Police. Armed Forces, mentioning an 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 re-occurrence of the Subedar Major's gross mis<:onduct, I suggest he be censured for his unsatisfactory behaviour where h~ faiied to maimain the required discipline". The Deputy Inspector General wrote a note to the Inspector General as follows :-

pp. 192–193, margin E

"Kindly see pp. 15-· 12 which relate to the notorious Subedar Major S. B. Missir of B.M.P. VI whose 70n: duct is already under enquiry by a Board to be pres1dea over by the LG. himself.

p. 193, margin A

In this particular c\se 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.

p. 193, margin B

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 {If 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 f<:'r promotion; The Subedar Major, is perhaps; too old to learn and in any ca~e cannot be posted as a Sergeant Ma1or 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.F .P. by . Mr. Creed's Board.

p. 193, margin B

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 seryice will be de.cided after the Board of enquiry concludes its labour. I am purposely suggest\ng his posting to Hazaribagh because he will be far away from the witnesse~ 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.''

p. 193, margin D

The Inspector-General made an order on November. 2, 1950, "as proposed" In the first week of November 1950 .the respon· dent 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 Aptil 7, 1953 an order was made by the Deputy-Inspector-General dismissing the respondent from service.

p. 193, margin F

In February 1954 the respondent filed a suit for a declaration that his demotion from the rank of a Subedar Major to that of ~ergeant. and dismissal froin service were wrongful, illegal and moperahve and that he had all along remained a Subedar-Major He further claimed a decree for a sum of Rs. 3,118/- on account of arrears of pay as detailed in Schedule I attached to the plaint 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 oru 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 offi, ciating 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 l]e had been appointed to officiate in the post of Subedar Major, that authority being the Inspector General of Police. The dis- . missal 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.

pp. 193–194, margin F

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. Shr( Sukh Raj Bahadur(1) stated the following propositions on a consi<leration of the numerous decisions on the point :-

p. 194, margin D

"1. The services of a temporary servant or a probationer can be terminated under the rule> of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constituion.

p. 194, margin E

2. The circumsances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial.

p. 194, margin F

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.

p. 194, margin F

4. An order of termination of service in unexcep·· tionable 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

p. 194, margin G

the operation of Art. 311 of the Constitution. (I) 3 S.C.R.

p. 194, margin H

5. If 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 there-

p. 195, margin A

after will attract the operation of the said article''. The argument soaght 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 involvin,g an assault by the respondent on his orderly it would not be a case of reverslon by way of punishment. A great deal of stress is laid on the f~ct 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 Indla & Anr. v. R. S. Dhaba, Income Tax Officer, Hoshiarpur( in which Mr. Pillai the then Commissioner of Income tax had said that the officer conterned should be reverted because of the the large number of complaints which the departmoot had received against his integrity· and the bacf reports received by him from his superiors. The successor of Mr. Pillai Mr. S. R. Mehta niade an order on May 22, 1964 to the effect that Dhaba officiating Income tax Officer Class II 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 of 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:-

p. 195, margin A

"The test for attracting Art. 311 ( 2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for {he 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 Indla [1964] 5 S.C.R. l 90. 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, 882/66 dt. 7th April 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".

pp. 195–196, margin E

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 cond\lct of a Govern- . menf Officer in the impugned order it cannot be held to have been · !nude by way of punishment. The test as previously laid and which \i:as 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( 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 laid down by this Court that one has only to look to the order and if it docs not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Gov- . ernment 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 the order had been made by way of punish,ij1ent. 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.("). It may be that an order which i~ 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 adminis· trative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the over· riding test will always be whether the misconduct is a mere motive or. is the very foundation of the order.

p. 196, margin A

In the present case the High Court found that the order of reversion was made owing, to the note of the Deputy Inspector- Oeneral of Police following the report of the Commandant. The order of reversion was direc1!y and proximately founded on 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. 311 (I) of the Constitution.

p. 196, margin F

The appeal fails and it is dismissed with costs. G.C. Appeal dismissed.

p. 196, margin G

C.A. 882of1966 dt. 7-4-69. 3 S.C:R.

p. 196, margin H

Cl/71-2500-17-11-71-GIPF.

p. 196, margin H