Monoranjan Taran vs State of West Bengal

Anil K. Sen, J.—This appeal under Clause 15 of the Letters Patent is at the instance of the Petitioner in a writ petition and is directed-against the judgment and order dated April 28,1972, passed by P.K. Banerjee J. in C.R. 729(W) of 1968. By the judgment and order under appeal the learned Judge in the trial Court dismissed the writ petition and overruled the Appellant''s challenge to the validity of an order of reversion from the rank of an Inspector to that of a Sub-Inspector of Police.

Facts are not in dispute. The Appellant joined the Police force in the lower rank of a constable. By gradual promotion he held the substantive rank of a Sub-Inspector of Police when in 1960 his name was empanelled in a range approved list of Sub-Inspectors who are considered fit for promotion as Inspectors. On the basis of such empanelment it is not in dispute that the Appellant was promoted to act as an Inspector in the Third Armed Police Battalion by an order dated October 3, 1963, passed by the Inspector-General of Police, West Bengal. It is also not in dispute that subsequently the authorities thought it necessary to constitute a unified panel of Sub-Inspectors fit for promotion to the rank of Inspectors that is irrespective of ranges. In the panel so framed the Appellant''s name was also empanelled, position allotted to him being serial No. 109. While the Appellant was so acting as an Inspector by virtue of the promotion referred to hereinbefore, he was reverted to his substantive rank of Sub-Inspector by an order dated October 7, 1964, passed by the Additional Inspector-General of Police. It is not in dispute that he was so reverted on a report by his superior authorities that he proved himself unsuitable for the post of an Inspector in any branch. The order as communicated to the Appellant by the Commandant of Reserve Force First Battalion merely referred to the order of the Additional Inspector-General of Police and went on to say "Inspector Monoranjan Taran is reverted to his substantive rank of Sub-Inspector with effect from 6.11.64". The Appellant made several representations against such a reversion but without any success. Our attention, however, has been drawn to two Police notifications issued in the year 1967 in respect of such reversion of the Appellant, viz. one at the instance of the Additional Inspector-General and the other at the instance of the Inspector-General of Police. Both these notifications which are annexs. ''I'' and ''J'' to the writ petition go to show that the Appellant was reverted "as he had been found unsuitable to officiate as an Inspector of Police". In the writ petition the Appellant disputed the validity of such reversion on two grounds. Firstly, it was contended that the Appellant having been appointed by the Inspector-General of Police he could not have been reverted by an order of the Additional Inspector General of Police who is an officer subordinate to the Inspector General of Police. Secondly, it was contended that the impugned order of reversion amounts to punishment imposed without affording the Appellant any opportunity to show cause and as such, the order is violative of Article 311 of the Constitution.

On perusal of the judgment appealed against it appears to us that the Appellant pressed the second point only before the learned Judge in the trial Court at the time of hearing and not the first one. But the learned Judge overruled the said plea. The learned Judge took the view that reversion on the ground of unsuitability of a person who had been promoted to officiate on trial cannot amount to punishment. Accordingly, the learned Judge dismissed the writ petition and discharged the Rule. Being aggrieved, the Appellant has now preferred the present appeal before us.

Mr. Banerjee appearing in support of this appeal has raised the very two points which were sought to be raised in the writ petition and indicated herein. In particular, Mr. Banerjee has very strongly contended that in the facts and circumstances the learned Judge in the trial Court should have held that the impugned order is in reality an order of punishment. Strong reliance is placed by Mr. Banerjee on the decisions of the Supreme Court in the cases of P.C. Wadhwa v. Union of India AIR 1964 S.C. 923, State of U.P. and Others Vs. Sughar Singh, , The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, and Jagdish Prasad Shastri Vs. State of U.P. and Others, . All these contentions have been contested by Mr. Roy Choudhury, the learned Advocate for the Respondents.

So far as the first point raised by Mr. Banerjee is concerned it can be disposed of shortly. Though the Petitioner might have been appointed to officiate as Inspector by the Inspector-General of Police, it cannot now be disputed that on the provision of the Police Act as amended for its application in West Bengal the Additional Inspector-General of Police is authorised to exercise all the powers of the Inspector-General. It appears from the affidavit-in-opposition filed by the Respondents that by a Government order dated January 4, 1966, "the work relating to Inspectors was specifically allotted to the Additional Inspector-General of Police". Irrespective of the question whether the impugned order amounts to imposition of punishment or not, Article 311(1) is not attracted and there being no legal bar to the Additional Inspector-General exercising such a power of reverting an Inspector, we fail to find any merit in the first point so raised. This is perhaps the reason why this point was not pressed before the learned Judge in the trial Court in this case.

So far as the second point raised is concerned it would be necessary for us to consider as to when does reversion amount to punishment in law. It had been clearly laid down by the Supreme Court in a number of decisions and which have been re-affirmed even in the case of State of U.P. v. Sughar Singh Supra relied oft by Mr. Banerjee himself that the real test for determining as to whether reversion amounts to punishment or not is first to ascertain if the officer concerned had a right to the post from which he is reverted. If he had a right to the post then the reversion is certainly a punishment as he is deprived of that right and cannot be ordered except in due compliance of the provision of Article 311(2). Secondly, even where the officer has no right to the post, still reversion may be a punishment and may attract Article 311(2) if it was effected in such a manner as would conclusively show that the intention was to punish. Now, applying these tests to the present case it cannot for a moment be disputed and must be said in fairness to Mr. Banerjee that he has also not disputed the fact that the Appellant had no right to the post, of an Inspector from which he was reverted. We are in agreement with the learned Judge in the trial Court in his finding that when the Appellant was promoted by the order indicated hereinbefore on his empanelment as a Sub-Inspector fit to be promoted as Inspector he was so promoted on trial. He was promoted to act or, in other words, to officiate; it is obvious, therefore, that he was to prove his metal and prove his suitability before he could be considered for confirmation in the rank of an Inspector. When he was reverted at that stage before confirmation he was reverted from a post to which he had no right. The first of the two tests laid down by the Supreme Court, therefore, does not help the Appellant in the present case.

What, however, has been strongly contended for by Mr. Banerjee is with reference to the second test above referred to. Mr. Banerjee has contended that when the order as notified indicates and asserts that the Appellant was reverted on the ground of unsuitability, it attaches a stigma and constitutes taking a penal action against the Appellant. It has also been contended by Mr. Banerjee that such reversion affects the Appellant''s prospect for future promotion in the substantive rank and as such, is penal in consequence. We are, however, unable to accept either of the two reasons sought to be assigned by Mr. Banerjee in support of his contention that reversion, in the present case, amounts to punishment. Undoubtedly and admittedly the Appellant was promoted to officiate on trial. He was, therefore, promoted on an implied term that, if he proved himself unsuitable, he would be reverted back to his substantive rank. He failed in the trial and was reverted on the very terms of his promotion. It has been laid down by the Supreme Court clearly in the case of The State of Bombay Vs. F.A. Abraham, that reversion from an officiating appointment on the ground of unsuitability where the person was promoted to officiate on trial does not amount to punishment in any manner. The Supreme Court observed--

again, sometimes a person is given an officiating post to test his suitability to be made permanent in it later. Here again it is an implied term of the officiating appointment that if he is found unsuitable he would have to go back. If, therefore, the appropriate authorities find him unsuitable for the higher rank and then revert him back to his original lower rank, the action taken in accordance with the terms on which the officiating post had been given. It is in no way a punishment and is not, therefore, a reduction in rank. In our opinion, if such a reason for reversion does not render it a punishment, recital thereof in the order does not change the position in law. If the ground for taking the action does not constitute the action penal, there is no reason why recital of such ground in the order would render it penal. This Court in the case of State of West Bengal v. Somendra Nath Lahiri (1976) C.H.N. 509 has held that such recital does not constitute stigma also. I hat being the position we are unable to uphold the contention of Mr. Banerjee that merely because in the subsequent notified orders it had been specified that the Appellant was being reverted on the ground of unsuitability that recital attaches a stigma and renders the order penal. Similar view was also taken by this Court in the case of State of West Bengal Vs. Dhajadhari Dutta, .

The other aspect of Mr. Banerjee s contention which still remains to be considered is that the order is penal in consequence as it affects the Appellants prospect of future promotion while in substantive rank. We are unable to find how the order can be said to have affected the Appellant''s prospect of future promotion. This aspect was not elucidated in the writ petition itself, but at the hearing of the appeal at a very late stage the Appellant has filed an affidavit disclosing the panel of Sub-Inspectors fit for promotion to the rank of Inspectors and with reference to the said panel it has been contended that since the Appellant''s name was struck off the panel his right to future promotion had been affected. An order which results in such a consequence, according to Mr. Banerjee, cannot but be penal. It is difficult to accept such an affidavit filed at this late stage. But even then, in our opinion, this contention of Mr. Banerjee is not well-founded. The Appellant was promoted on the basis of a panel framed by a Selection Board. That panel was given effect to when the Appellant was promoted to officiate. As the Appellant proved himself unsuitable his selection failed and he was reverted. Such reversion necessarily leads to cancellation of his name from that panel because his name could not be borne on the panel and at the same time he could not be reverted from the rank to which he was promoted on the basis of the panel. Striking out the name in such circumstances from the panel does not in our opinion necessarily affect his right to future promotion. That would depend entirely upon the service he renders in his substantive rank as a Sub-Inspector after his reversion. It is not the Appellant''s case that because of the order impugned his case would never be considered for promotion in future. That being the position Mr. Banerjee cannot usefully rely upon the omission of the Appellant''s name from the panel disclosed in the affidavit now filed before us in support of his contention that such omission indicates cancellation of his name from the panel and affects the Appellant''s right to future promotion. Both the reasons, therefore, assigned by Mr. Banerjee in sup port of his contention that the impugned order is really an order of punishment fails. The four decisions relied on by Mr. Banerjee does not help him because in each of those cases the Supreme Court found as a fact that the reversion was effected by way of punishment on the ground of misconduct and not in circumstances as in the present case. A case similar to the present one was considered by the Supreme Count in the case of Stale of Bombay v. F.A. Abraham Supra where the Supreme Court upheld the order of reversion as one not constituting punishment.

We, therefore, uphold the judgment and order passed by the learned Judge in the trial Court and dismiss this appeal. There will be no order as to costs.

M.N. Roy J.

I agree.