APPAR APAR SINGH versus THE STATE OF PUNJAB AND OTHERS

Valdi!Hnpm, J. The sole point that arises for consi· deration in th1s appeal by special leave is whether the order dated April 26, 1964 passed by the Oovemer of Punjab reverting · the appellant from the Punjab Education Service Class I ( offl.· ~ting service) to the Punjab Education Service Class IT with immediate effect, amounts to 'reduction in rank' attracting the- . applicability of Art. 311 ( 2) of the Constitution.

p. 891, margin E

The appellant when this order was passed was Principal, Government College, Muktsar. and on reversion he was posted as Deputy Inspector of Schools, Agriculture, Chandigarh. The learned Single Judge, who heard Civil Writ No. 1506 of 1964 fi.Jed by the appellant to quash the said order, held by his judgment dated September 9, 1965 that the order amounts to 'reduction in rank' of the appellant and quashed the same. On appeal by the State 0f Punjab and two other officers, the Division Bench by its order dated July 21; 1966 in Letters Patent Appeal No. 346 of 1965 set aside the order of the learned Single Judge and heJd that the impunged order of reversion was not passed by way of punishment and that on the other hand it was only reversion of the appellant from his officiating post to his su~~ tantive r"lnk and that in consequence Art. 31 I (2) bas no applrcation.

p. 891, margin E

The circumstances leading up to the passing of the. impunged .order may oo stated : The appellant having obtained in 1943 a degree of the Punjab University in Agriculture joined the .Education Department of the Punjab State on November 9, 1944 as teacher in agriculture. Later on he obtained degrees of B.T., M.Ed., and M.A. He also got degree of basic education as· a nominee of the Punjab Government and he was further nominated by the State Government in 1953 for higher studies in :the United States. In August 1954, he was sele~ted as a Lecturer· in Agriculture by the Subordinate Services Selection Board, Punjab and in 1955 he was selected for promotion to .P .B.S. Class IT by the State Service Commission. In September 1960 he was promoted to P.E.S. Class I on an officiating basis and on May 9, 1 Q63 he was appointed Principal of the Government College, Muktsar.

p. 892, margin A

It is seen from the records that the appellant had some ·trouble with the members of the staff and in consequence reports had been sent to his superiors who advised the appellant to act tactfully. The appellant was later on invited to meet the superior offi~ers a~ Chandigarh and. he was appraised of the complaints received about him, but his request to have the names of the .complainants divulged to him and also to go through the cOmplaints said to have been received and to be furnished with the copies of the same were all rejected by the authorities. The appellant appears to have been advised to proc~ on leave, but he declined to accede to the request of the authorities. Later on the appellant made a request to the second respondent, the Director of Public Instruction, Punjab to come over to Chandigarh and visit the institution to enable him to have a personal knowledge about the working of the college. The second respondent accordingly presided over the annual prize distribution function in the College on February 26, 1964. When the appellant was reading the College's annual report in which certain aspersions had been made as against some of the members of the· teaching staff, Prof. S. C. Kapur (who was one of the professor in the College) interrupted the proceedings and remarked "what about those principals who come drunk to the stage and do make up of the girls''. This incident led to some commotion and one of the parents of the students demanded an inquiry 'into the allegations of misconduct made against the ap~llant ·by Professor Kapoor. According to the appellant, the Director ·of Public Instruction, Mr. Sharma then and there assured the appell~nt that an inquiry will be made promptly by two senior "(}fficers and action would be taken to punish the guilty persons -whether they belong to Class I or Class II. But according to ·the second respondent no such assurance attributed to him was made then. But there is controversy that an inquiry was demanded t..y some of the parents of the students and that the second respondent promised to depute two senior officers for that purpose. Accordingly the second respondent deputed two Deputy Directors, namely, Sri Harbans Singh and Sri Govardhan Lal to make an inquiry into the affairs of the College. The points that required investigation were formulated by these two Inquiry ·Officers as follows :

pp. 892–893, margin C

(J) Were the allegations levelled by the Principal in his report true in respect to some members

p. 893, margin B

of the Staff ? (2) Was it proper for the Principal to say all this in

p. 893, margin B

public meeting ? (3) Were the allegations levelled by Shri S. C.

p. 893, margin C

Kapur true? ( 4) Was it proper for Shri S. C. Kapur to say this during the annual function presided over by the D.P.I. and attended by Publicmen besides

p. 893, margin C

-students and staff ? (5) The effect of all, this on.the general public mind particularly their reaction towards sending of

p. 893, margin C

their daughters to the colleges. ( 6) The remedial measures to restore in the College ·a normal and healthy atmosphere conducive to

p. 893, margin C

academic pursuits!., The said two officers made inquiries .in respect of these matters from various persons including the 6ppellant. and arrived at the following conclusions :

p. 893, margin E

•( 1) The allegations levelled by the Principal against the members of the staff in his report are not

p. 893, margin E

borne out by facts. (2) The Principal's remarks were highly offensive and were quite misplaced in the annual report. He· could have sent confidential reports against his colleagues hut to criticise them in public before -~~rents and the general body of students

p. 893, margin E

was highly itiiproper and -was in very bad taste. ( 3) The allegations. levelled by Sri S. C. Kapur in regard to the Principal having come to the stage drunk and having done make-up of the girls have been corroborated by the girls themselves and by the members of the staff who were present on the stage except one whose reluctance to say anything ·against the Principal can be

pp. 893–894, margin G

easily understood. ' ( 4) The conduct. of Shri S. C. Kapur was subversive of all discipline. It was most improper for ' him to have acted in such a rude manner. ·He has shown himself in capable of any self-res- · traint and has set a bad example. It will not be out of place to mention here that he was . transferred from G. C. Ludhiana as he had fallen out with the Head of his Department there. Such a pers0n cannot have a salutary

p. 894, margin A

influence on the students."

p. 894, margin C

·At this stage it may be mentioned that during the inquiry •conducted ty the two Deputy Directors, the appellant appears to have been very reluctant to give answers regarding some of the points in the questionnaire as they were direeted against his conduct though the questionnaire itself was headed "Investi- _gation into the· conduct of Shri Satish Kapur" But nevertheless he filed a very lengthy explanatory statement before the Inquiry ·Officers controverting the allegations made against him and giving his own version regarding those p9ints. We shall refer later to the. points raised in the questionnaire as also to the nature of ·the answe~ given by the appellant. He has also protested against the inquiry being oonduoted behind his back without copies of the statementS being made available to him and without hh being furnished an opportunity of cross-examining those ·witnesses. He has also attributed bias against the Inquiry Officers. In the report itsaif the Inquiry Officers had suggested the following remedial measures :

p. 894, margin C

"(a) Shri S. C. Kapur deserves examplary punishment and his services should ·be terminated in terms of his conditions of service on giving him one month's notice without assigning any rca-

p. 894, margin F

son. (b) It is further understood tnat D.P.I. "is separately holding a secret probe into the conduct of the Principal for allegations of uncalled for connections with a lady teacher with whom he . carried on correspondence at personal lev~l in his own hand-writting, through the Manager of the Punjabi Pu}?lishers, Ju11undur, in a most objectionable manner. The Principal therefore, also needs. . some . E~amplacy Punishment with()ut being called upon to · face a 'Regular Department Enquiry. It will not be desirable to conduct a formal Departmental enquiry into his conduct in regard to the probe which D.P.I. is already having and paiticularly so in re~pect of incident pertaining to the make-up of the girl students in a drunken condition ... Thus it is clear that the Principal deserves to be given some cxamplary punishment. He is an unconfirmed h"nd and in con~ultation with the Legal Remembrancer steps may be taken to .revert this officer to P .E.S. Class II without assigning any reason ... lmmediately, the Principal should be transferred to an equivalent post at Headquarters to remove the impression in the minds of the Lecturers or even the public that undesirable Lecturers were able to get the Principal demoted. Separate proceedings should be initiated against the Principal in the mean while hnd final action taken later when the situation has quietened out quite a bit so to avoid any kind of unsavoury reactions both in the minds of the public at Muktsar and the ~tudents of the College as well as the teachers working in

pp. 894–895, margin F

that institution. (c) (d)

p. 895, margin D

(e) "

p. 895, margin E

The learned Judges before whom records had been produced have noted that as against the suggestion of the Deputy Directors that &teps may be taken to revert the appellant to P .E.S. Class lJ without assigning any reason, the Competent Authority had ma:le the. following note in the margin : ''This case should be referred to the L.R. for advice''.

p. 895, margin E

As against the suggestion about the transfer of the Principal (appellant) to avoid the impression in tne minds Gf the lecturers or even the public that undesirable lecturers were able h) get the Principal demoted, the Competent Allthority has again noted : "Not yet. To be sorted out later". As against the suggestion of the Deputy Directors to terminate the services of Prof. S. C. Kapur, the Authority had made the note : "Agreed". There is no controversy that the services of Prof. Kapur we!'e terminaed on March 30, 1964 by giving him one month's notice. Shri S. C. Kapur appears to have filed a writ petition No. C.W.764 of 1964 challenging the order terminating his services but the said writ petition was dismissed by· the High Court on July 2.8, 1964.

pp. 895–896, margin F

"Order of the Governor of Punjab. Shri Appara par Singh, P.E.S. Cla~s I (Officiating) Principal, Government College, Muktsar is reverted in P.E.S. Class II with im~ediate effect and is posted as Deputy Inspector of Schools, Agriculture; Chandigarh vice Shri Man Mohan Singh.

p. 896, margin A

2.

p. 896, margin B

Dated Sd/- C. D. Kapur Chandigarh the Education Commissioner & Secretary to 28th April, 1964 Government, Punjab, Education

p. 896, margin C

Department.

p. 896, margin C

No. 4788-Ed(l)~64/8284, dated Chandigarh the 28th April. 1964.

p. 896, margin C

A copy is forwarded to the :-

p. 896, margin D

1. Director of Public Instruction, Punjab, Chandigarh for information and necessary action with reference to the communication noted in the !:.i&'gin. The personal file of Shri Apparapar Singh is re-

p. 896, margin D

turned herewith. Please acknowledge receipt.

p. 896, margin E

2. Accountant General, Punjab (GADVI) Simla

p. 896, margin E

for information and necessary action.

p. 896, margin E

3. Circle Education Officer, .Ambala., for information.

p. 896, margin E

Sd/- Deputy Secretary for Education Commissioner & Secretary to Government, Punjal:>, Education

p. 896, margin F

Department.

p. 896, margin F

No. 4782-Ed(I)-64/8285-A, dated Chandigarh the 28th 29,th April, 1964.

p. 896, margin G

A copy is forwarded to Shri Apparapar Singh, Principal, Govt.- College, Muktsar for information and necessary action.

p. 896, margin G

Sd/- Deputy Secretary for Education Commissionl!r & Secretary to Governmeh~, Punjab,· Education Department."

p. 896, margin G

The appellant filed the writ petition in the High Court challenging this order as contravening Art. 311 (2) of the Constitution. According to the appellant he has been "reduced in rank" as a punishment without any inquiry and mala fide. The appellant made a grievance that the evidence collected by the Inquiry Officers were not made available to him nor was he given any opportunity to participate in the inquiry and cross-examine the witnesses. Though his conduct was being ;inquired , into. the evidence was collected behind his back and ·a finding had been recorded against him on the basis of . such. materials of which he had po opportunity either to scrutinise or controvert.

p. 897, margin A

The appellant further alleg¢ that . though the order on 'the face of it appears to be very innocuous having regard to the surrounding circumstances attendent on the passing of the order, it is cle:.r that it was one by way Of punishment.

p. 897, margin B

The State did. not dispute that the two Deputy Directors, who held the inquiry did not give any opportunity to the appellaats is accepted it will be tantamount to holding that Digambethe accute. controversy between these 2 sects and their reluctance ments were recorded from members of fue staff, students and parents of the students of the College. It was also admitted that copies of the statements so recorded were not furnished to the appellant and that he was also not allowed to cross-examine any witness. But the stand taken by the State was that it wa!' totally unnecessary to ailow the appellant to participate in the inquiry because it was not directed against him and that the in~ quiry was· only a preliminary confidential inquiry into the affairs of the College. It was further averred on behalf of the State that the appellant had no right to continue in P .E S. Class I wben he was only officiating and that his reversion to P .B.S. Class II, which was in the usual course, cannot be considered to be a reduction in rank so as to attract Art. 311 ( 2) of the Co as~ titution.

p. 897, margin C

The State has further averred that his seniority in the subs~ tantive post of P.E.S. Class II nor his emoluments, which he was entitled to draw in that grade were affected by the ord~ of reversion. In short ~e State contended that as no penal consequences flowed from the impunged order and as the appellant had no right to the post of P.E.S. Class I, the order of reversion does not amount to 'reduction in rank' so as to attract Art. 311(2).

p. 897, margin F

The learned Single Judge has proceeded on the basis that the question whether the impunged order amounts to a 'reduction in rank' so as to attract Art. 311 (2) is to be considered 1S-L694 Sup C not only by looking to the form of. the order but also the sur~ rounding circumstances attendent upon the passing of the order. He further took the view that the order on the face of it appeared to be innocuous. So he took into account the inquiry conducted by the two Deputy Directors, the nature of the questions dealt with by them, the allegations made against the appellant and the· finding recorded in the said report together with tne recom~ mendation that some punishment must be imposed upon the a-ppellant. The learned Single Judge did not accept the case of the State that the inquiry was only regarding the working of the institution. On the other hand, it was held that specific allegations were made against the appellant and nndings recorded against him and that it was on the basis of those findings that action· was taken against Prof. Kapur by way of terminating his services by giving him one month's notice and against the appellant by reverting him to P.E.S. Class II. As it was admitted that the inquiry had been conduct~d behind the back of the appellant without giving an opportunity to him to cross-examine the witnesses, the learned Single Judge held that the inquiry proceedings were vitiated. Having regard to all the attendant circumstances, the learned Judge fin~lly held that the order of reduction was passed with the intention to inflict punishment on the appellant in view of the finding recorded against him in the inquiry by the two Deputy Directors. It was further held that the innocuous form which the respondents gave to the impunged order in consultation with the Legal Remembrancer was merely a cloak to avoid the consequences of Att. 311 (2) and amounts to a fraud on the constitutional guarantee given to civil servants. In view of these findin_gs recorded in favour of the appellant, the learned Single Judge dtd not consider the second ground of attack levelled against the order that ihe· respondents were actuated by malice, official bias and influenced by extraneous considerations · in pa5sing the order of reversion. In the end the learned Single Judge s~t aside the order of reverting the appellant to P.E~S. Class II.

pp. 897–898, margin G

The Letters Patent Bench before whom ·the State challenged the order of the learned Siagle Judge has accepted the position that froni trie file and the noting thereon, it is clear that the findings recorded against the appellant in the report of the two Deputy Directors as well as the remedies suggested by them in the main were accepted by the Government after obtaining the advice from the Legal Remembrancer. The Division Bench has also held that it was in consequence of the acceptance by the Government of the findings and suggestions contained in the report that the appellant was reverted toP .E.S. Class ll. The Division Bench has taken the view that the reversion was ordered because the appellant was found unfit to hold the responsible post of Principal of the College. In view of the admitted fact that the appellant's emuluments, position and other rights in P.E.S. Class II were not affected by thy order of reversion, it cannot be h~d . in this case that the impugned order is one, which can be construed as 'reduction in rank' of the appellant attracting Art. 311(2). It was further_ held that the reversion is not by way of punishment but only because the person reverted was not found suitable to hold the post. Ultim~tely the Letters Patent Bench held that there was no inquiry conducted against the appellant as contemplated by the relevant rules and there were no charges of ~isconduct levelled against the appellant which were being inquired into by the Deputy Directors. The inquiry conducted by them Was only to find out the actual state of affairs in the. nonnal fun.ctionln:s o. J the College. No penalty has been imposed against the appellant as- he was holding P.E.S. Class I _post only on an officiating b8si11 and it was open to the authorities to revert him to his substanti~ po~ .at any time. Such reversion, according to the Division Bench in this case, does not amount to 'reduction in rank' so as to attract Art. 311(2) . On this reasoning the Letters Paten~ Bench, held that the impugned order of reversion was not one passed by way of punishment and in consequence set aside the order of the learned Single Judge and dismissed the appellant's writ petition.

pp. 898–899, margin F

Mr. Garg, learned counsel for the appellant, has raised substantially the same contentions tha! were argued before the High Court, both before the learned Single Judge and the Letters Patent Bench. The counsel urged that though the impugned order on the face of it appears to be very innocuous, it is really an order imposing punishment on the appellant by way of reversion· in view of the fact that the very basis of the order was the acceptance by the Government . of the findings recorded against the appellant in the enquiry conducted by the two Deputy Directors. If the order is read in the context in which it has been passed, the irreSistible conclusion is that the Government intended to impose a penalty by reverting the appellant to P.E.S. Class II. In particuhrr the counsel ~tresed that the findings recorded by the two Deputy Directors that the allegations against the appellant that he had come to the stage drunk 'and did the make up of the girls has been corroborated by the girls themselves and members of the staff whose statements had been recorded by them behind the back of the appellant, are of a very. serious nature costing reflection against the character and conduct of the appellant. These findings were accepted by the Government and the order of reversion passed in consequence ca,n only be construed as an order imposing punishment. To establish that the appellant has suffered penal consequences, Mr. Garg pointed ()ut; that while the appellant was reverted to P.E.S. Class II, his juniors in the said class were retained in P .E.S. Class I and that in consequence it has resulted in the appellant's losing his seniority even in P .B.S. Class II and the chances of appellant's further promotion have become indefinite and a very remote possibility.

pp. 899–900, margin D

Mr. Harbans Singh, leamed counsel for the State, on the other band, urged that the order of reversion is one passed by the Government on the basis of the inquiry conducted into the affairs of the College and as the Government felt that the appellant was not suitable to be continued as PrincipaL No achon for imposing punishment on the appellant has been taken by the State. ~e counsel pointed out that the very fact that no char&es were framed against the appellant and no inquiry conducted according to the rules clearly show that no disciplinary action was intended to be taken against the appellant. He also pointed out that the appellant was only officiating in P.E.S. Class I and his reversion to P .B.S. Class II on the ground that he was found unsuitable to be the Principal is not 'reduction in rank' so as to attract Art. 311(2). The counsel also pointed out that in the P.B.S. Class II, his seniority and the emoluments to which he was entitled. have not been affected and therefore no penal consequences have resulted by the order of reversion.

p. 900, margin A

After giving due consideration to the various aspects placed before us by the learned counsel on both sides and the reasons given by the Letters Patent Bench, we are of the opinibn that the impugned order, in the circumstances, is one which amounts to 'reduction in rank' of the appellant to which. Art. 311 (2) is attracted a:nd as admittedly no inquiry has ~r. held as contemplated by the relevent rules regarding disciplinary proceedings, the. Judgment of the Division Bench will have to be set aside.

p. 900, margin D

At the outset we may state that the learned Single Judge has taken the view that by allowing the juniors of the appellant to continue in P.E.S. Class I while reverting him to P.E.S. Class II, it cannot be held that thereby the appelhmt's ·seniority has been affected. We are not inclined to agree with this view. Loss of seniority established by virtue of an order may amount under certain circumstances to a penal consequence leading to an inference that tile order challenged is. one imposed by way of punishment. In paragraph 28 of the Writ Petition the appellant ha5 clearly stated that .at the time of the passing of the impugned order as many as nine persons were officiating in P.E.S. Class I in schools and instruction cadre and amongst them the appellanfs name appears at No.,_ 5 in the seniority list He has further stated that there were four persons junior to him who were still permitted to officiate in P.E.S. Class I. In paragraph 28 of the return filed by the State, the averments of the appellant, referred tn Jbove, have been admitted. The State. however, added that the two officers who were senior to the appellant were still officiating in P .E.S. Class I. Therefore, '"it is clear from the admission of the State that on the date when the appellant was reverted to P .B.S. Class II, some of his juniors in that class were allowed to continue in P .E.S. Class I.

pp. 900–901, margin E

The appellant's grievance that the order indefinitely postponetany chances of promotion in future has been accepted by the les.med Single Judge. In fact this grievance has beelll relied on as evidencing that penal consequence has resulted from the order. The Letters Patent Bench was also impressed by the circumstance that an order reverting a person from the officiating post, unless of course it is due to the coming back of the substantive incumbent or by reason of the post being abolished, does affect the chances of a future promotion of the person reverted. But the Letters Patent Bench, as we have already pointed out, took the view that the impugned order is not one by way of imposing any punishment. It may also be pointed out that both the learned Single Judge as well as the Letters Patent Bench have held that the findings recorded by the two Deputy Directors against the appellant were accepted by the Government and that it was in consequence of such acceptance of those findings that the appellant was reverted to P.E.S. Class II. Therefore the close conne6tion between the findings recorded in the report against the appellant and the order of reversion has been found. established in this case. Therefore, the only question whether the findings :so accepted by the Government operated only as a motive for passing the order of reversion or whether the report against the appellant was the very foundation for passing the impugned order. The appellant admittedly was issued a questionnaire by the two Deputy Directors to which his. answers' were invited. Those questions were as fo11ows :-

p. 901, margin B

"Investigation into the conduct of Shri Satish Kapur.

p. 901, margin F

Q. 1 What did Shri Satish Kapur, Lecturer actually do and say while the Annual report was being read over by you on 26-2-1964?

p. 901, margin F

Q. 2 Is there anv samblance of truth in what Shri Kapur said about yo{l at that time ? In any case give your comments on the remarks made by him and the reasons as well as hackground which promoted him to adopt this objectionable course ?

p. 901, margin G

Q. 3 Were the remarks made by you in the annual report. pertaining to the staff directed against any particular member of the staff of your college? · If so please give some instances t~ support your view and you may as well quote the names of the persons who may be able to substantiate or support these remarks to enable disciplinary action being taken against the concerned members of the staff.

pp. 901–902, margin H

Q. 4 Please state why it was necessary to include these remarks against the staff in the annual report and why •it was not considered proper to· mention al~ these matters to the Director in a private meeting rather than raising these issues in a meeting open to the parents of the students and vario~s public men ?

p. 902

Q. 5 What ·are your suggestions for winning the confidence of the public in the institution which is a co·

p. 902, margin C

educational college ? There is also no dispute that the appellant filed a very le1_1gthy reply to .these questions controverting very strenuously the allegations made against him. Apart from furnishing an explanation td the points raised in the questionnaire he has also given· his own reasons as to why Shri Kapur in particular had a grievance against him. We do not think .it,;nec~ssary to elaborately refer to the answers'. furnished· '?Y ·h~ilf~epting{Jto ~ay t,ba~ ~n respect of !he very senous all~gation cove~,·\by }t}JeStiOn No. t_·i he h~s demed that he ever drmks' and ·fias -ruso stated that the <allegation made by Prof. .. KapQ(. a.gaiilsfhlffi Was absolutely false. He has very el~b()rately ~ in his reply dealt with question No. 2.

p. 902, margin C

It is not possible to accept the large proposition advanced on behalLof the :State that merely because the appellant was only officiating in P.E.S. Class II, the State had power to revert him to his substantive post of P.E.S. Class II and that such reversion wlll not amount to reducing the appellant to a lower rank as by .way of punishment. As· to whether a particular .order of rever· sion amounts to 'reduction in rank' by way of punishment cannor be decided merely on the basis of the terms of the order but regard must be had to the attendent circumstances also.

p. 902, margin C

It is weii settled that officiating and te01porary Government servants are also entitled to the protection of Art. 311 (2) in the same manner as permanent Government servants, if the qovern-

p. 902, margin G

ment takes action against them by meting out one of the punish- . ments i.e. dismissal;'removal or reduction in rank. (Vide Parshotam Lal Dhingra v. r,Inion of India(!) and Chamvoklal Chimim· Ia! Shah v. The Vnioh of India)(!). Notwithstanding the fact that . the appellant was in P.E.S. Class I only officiating, he will be entitled to invoke Art. 311 (2) if ·he is able to establish that the order of reversion is by way of punishment 'and that it amounts to reducing him in rank. .

pp. 902–903, margin G

After a review of the case law on the subject, this Court tn State of Punjab and .. an()ther v. Shri Sukh Raj Bahatiure) has ennunciated the follo~g propositions which have,to be borne in mind in considering the grievance of an officer regarding violation of Art. · 3 I 1 ( 2) . Those . propositions are as follows :

p. 903

·• ( 1 ) . fhe services of a. ~rary servant or a probationer can be terfuinated under the rules of his employment . and' such termination without anything more would 'not attract the operation

p. 903, margin B

of Art. 311 of the Constitution. (2) The circumstances preceding ·or attendent on the order of termination of service have to be examined in each case, the motive behind it

p. 903, margin C

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 tem-

p. 903, margin C

porary servant. (d) An order of termination of service in unext:eptionable fortn preceded by ·8:11·-enqUii'y. launched by the super :or authoriti~ onty· to ascertain whether the public servant shoUld be retained in service, does not attract the operation of Art.

p. 903, margin D

311 of thotconstjtution. (:;) lf 'be a full~scalo departmental enquiry

p. 903, margin E

thm envisaged by ·Art. 311 i.e. an Enquiry Officer is appeinted, a charge · sheet .submitted, explanation called for and considered, any order of termination of service made . thereafter will

p. 903, margin E

attract the operatio~ of ,the sai~ article."

p. 903, margin F

In pariitular it Win be noted from the above propositions that the circumstances preceding or attendent on ·the impugned ortlezhave to be .examined in each case, the motive behind it being immaterial and if the order visits the public servant with any evil consequenc~, it must be considered to be one by way of punishment whether he was a mere probationer or a temporary servant. But it is alto clear that an order _pa~· after an enquiry is conducte-d to asc~rtain whether the ,public servant should be retained in service or not, does ~ot attract Art .. 31 H.2} qf,the <;onstitution.

p. 903, margin F

(3) [1968JJS.C.R. 234 . . :~·~·:· ''<* '····· ·. ' '·.' :, .':'· ~· ..

p. 903, margin H

In State of Orissa v. Ram Nafain Das(l) this Court having regard to the particular circumstances attendent upon the enquiry in that case held that 'the order discharging the officer therein, who was a probationer, following upon an enquiry to ascertain whether he should be confirmed or not, was not an order passed by way of punishment.

p. 904, margin A

Similarly. in Jagdish Mitter v. The Vnion of lndia(Z) this Court· held that even befor~ ~~barging a temporary servant the superior authorities may have to determine the question about the .suitability of the .said temporary servant being continued in service a:nd if such an enquicy limited to the purpose pf deciding whether the said officer shpuld be continued or not, was held and on the basis of his being found unsuitable to be continued ·in service, an order of discharge was passed, there is no element of punitive proceeding in such an enquiry or in the order passed as a result of such enquiry. This Court further held that consideration of the motive operating in the mind of the authority who passed the order had , to be eliminated in determining th~ .character of the .order of termination of services of a temporary servant. It was also held that the form .in which the order terminating his set"lices was expressed would not also be decisive.

p. 904, margin B

This Court has again in Champaklal Chima.nlal Shah v. The Union of lndia( held "· ...... what is important to see is what actually happened after this memorandum for the courts are not to go by the particular name given by a party tt> a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it."

p. 904, margin D

From a review of the decisions cited above, it is clear that in order to find out whether an impugned orrler is one passed by way of punishment, the form in which the order is expressed is not· decisive and the circumstances preceding or attcndent · on · the order have to be examined in each -case. It is also clear that the motive behind the passing of the order is of no . consequence. Whether penal consequences flow from the order will have also to be investigated. Having due regard· to the propositions ennunciated, we will now proceed to consider whether the impugned order can be considered to be on~ reducing the rank of the appellant as by way of punishment. If the State is able · to establish its plea· that the inquiry conducted by the two Deputy Directors was only to find, out the suitability of the ·appellant to be continued as Principal and that as he was found to;be unsuitable he was reverted, then the order cannot be considered to be by way of punishment. We however find · ·considerable difficulty in accepting this plea of the State. Fr~ the facts given by us in setting out the circumstances leading to the filing of the writ petition, it is clear that the inquiry conducted by the two Deputy Directors was not with a view to find out the suitability or otherwise of the appellant to be continued as Principal. On the other hand, the inquiry was held with a view to investigate into the allegations made by the Princi~al against some of the members of the staff and the allegations made by Prof. Kapur against the appellant. We have already referred to the questionnaire issued to the appellant and also the points set for determination by tbe Deputy Directors as also the findings recorded by them. We have already pointed out that one of the allegations which were investigated by the Deputy Directors related to a very serious matter, namely, the charge levelled by Prof. Kapur against the Principal having come to the stage drunk and having done makeup of the girls. We are not concerned with the validity Of the inquiry conducted by the Deputy Directors because it is admitted by the State that the said inquiry was conducted exparte and bebind the back of the appellant. It has also been admitted that the statements recorded by the Deputy Directors from various persons were not disclosed to the appellant and the latter had also no opportunity to cross-examine those witnesses. But a. fiDding was recorded by the Deputy Directors that the said allegation made against the Principal has been corroborated by the girls themselves and by the members of the staff who were on the stage. The Deputy Directors after recording this finding a~inst the appellant also recommended that the appellant needs so~e examplary punishment without bein.& called upon to face a regular departmental enquiry". The government accepted the finding of the Deputy Directors as well as their recommendation to impose punishment against the appellant and it is on the basis of such acceptance that the order of reversion was passed. No doubt, the order by itself and on the face of it is innocuous, but; in· our. view, the finding recorded by the Deputy Directors against the appellant and their recommendation to impose punishment upon the appellant are dte very foundation for the ~ernment for passing the order' reverting the appellant from P.E.S. Class I to P .B.S. Class II.

pp. 904–905, margin E

Considerable stress has been laid by Mr. Hru;bans Singh, learned counsel for the State, that no departmental inquiry as envisaged by Art. 311 (2) was made against the appellant before his reversion was ordered and therefore the finding recorded by the Deputy Directors may have operated only as a motive for the government to pass the order of reversion. The counsel urged that an onfer passed under such circumstances cannot be considered to be by way of punishment. We are not inclined to agree with this contention of Mr. Harbans Singh. In Union of India and other v. R. S. Dhaba(~) this Court had to deal with a case of an officer who was reverted on the recommendation of his superiors because of a .large number of complaints the department had received against the offic~r's integrity. After consideration Qf the circumstances under which the order was passed, this Court held that the repcrt of the superior officer must be considered to have operated as a motive for passing the order of reversion and it. cannot be said that the report was the very foundation for the order of reversion. · This decision. in our opinion, does not assist the State in the case before us.

pp. 905–906, margin G

We may point out that in The State of Bihar v._Shiva Bhiks!zuk Mishra(2), this Court had to consider the applicability of M. 311 ( 2) to an order of reversion passed on the recommendation of a superior ·officer. In view of certain contemplated disciplinary proceedings an officer who was officiating in a higher rank was recommended by his superior officer to be reverted to his substantive post. Accepti,ng the _said recommendation, the competent authority reverted the officer concerned. The ordet was ·challenged on the ground that it amounts to reducing the rank of the officer concerned and as it has been passed in violation of Art. 311 ( 2) it was illegal. This Court held that though the order passed did not contain any· express words of stigma attributed to the conduct of the officer concerned, nevertheless having due regard to the attendent circumstances under which it was passed, the order was one passed by way of punishment. This Court further held that as Art. 311 (2) has been contravened the order is megal and in consequence set aside the same. This decision affords in our opinion a very close parallel to the case before us.

p. 906, margin B

It was not the case of the State before us that the appellant was reverted 'to his substantive post because the officiating post which he held at the time of reversion i.e. P.E.S. Class II was abolished. If that was so, nothing further remained to be said bec·ause. his services in the officiating post would auto- . ma:tically come to 'VI end when the post itself comes to an ·end. Again it was not the case of the State that the appellant was reverted to his substantive post because the permanent incumbent of the higher post in which the appellant was officiating had come back to dutv. It was not even the case of the State that the higher post was created for a temporary period and that it had come to an end. If any one of these circumstances had existed one can very well say that the order reverting the appellant to his substantive post could not be said to be by way of punishment. On the other hand the position was th<ft the reversion of the appellant was based entirely and exclusively on the basis of the adverse finding recorded against him by the enquiry and the report itself formed the foundation for the order of reversion. being passed.

pp. 906–907, margin D

We accordingly hold that the order dated April 26, 1964 is one reducing the rank of the appellant as a punishment. As it has been passed in violation of Art. 311 (2) of the Cons~itution that order bas to be set aside. ·

p. 907, margin A

In the resu,lt we allow the appeal, set aside the judgment and order of the Division Bench dated July 21, 1966 in Letters Patent Appeal No. 346 of 1965 and restore the judgment _and order of the learned Single Judge dated September 9, 1965 in Civil Writ Petition No. 1506 of 1964. The appellant will be entitled to his costs. Y.P. Appeal allowed

p. 907, margin B