State of Punjab vs Manohar Lal

Prem Chand Pandit, J.—The facts in this second appeal are not in dispute. Manohar Lal was recruited as a Police Constable on 25th February, 1930. Subsequently, he was promoted as Head Constable and later an officiating Assistant Sub-Inspector of Police. On 24th September, 1962, the Deputy Inspector General of Police Jullundur Range, reverted him from the rank of Assistant Sub-Inspector of Police to that of his substantive rank of Head Constable. This order was challenged by Manohar Lal by means of a regular suit filed in June 1964 on the ground that the same was illegal, ultra vires and unconstitutional. The main ground taken by the plaintiff was that he had been reduced in rank on the basis of certain allegations made against him and he was not given a chance of submitting his explanation. No enquiry was conducted into those allegations and he was not afforded a reasonable opportunity as provided by Article 31 (2) of the Constitution.

The suit was resisted by the defendant Punjab State and their case was that the order of reversion was only an administrative one and not passed by way of punishment so as to attract the provisions of Article 311 of the Constitution. No opportunity was required to be given to the plaintiff under the law before making the said order.

The trial Judge dismissed the suit, holding that the impugned order did not attract that provisions of Article 311(2) of the Constitution and the same was legal and intra vires.

On appeal, the learned Additional District Judge, Jullundur, reversed the finding of the trial court and came to the conclusion that the Government felt dissatisfied with the work and conduct of the plaintiff and doubted his honesty and efficiency. It had not been shown by the defendant that the reversion had been made on administrative grounds. The learned Judge held that the impugned order was passed by way of punishment and thus attracted the provisions of Article 311 of the Constitution. He, therefore, accepted the appeal, set aside the judgment and decree of the trial court and decreed the suit. Against this decision, the present second appeal has been filed by the State of Punjab.

Counsel for the appellant quoted a number of Supreme Court decisions and urged that the impugned order was passed by the Government on administrative grounds. The respondent was found to be unsuitable for remaining an Assistant Sub-Inspector of Police and he was, therefore, reverted to his substantive rank of a Head Constable. No stigma was attached to him, while making the said order.

Counsel for the respondent on the other hand, contended that it had not been shown by the Government that the impugned order had been made on administrative grounds. The allegations against the respondent were that his honesty was doubtful and reputation for dealings with the public was reported ''fair'' and it was because of these grounds that he had been reverted. The order in question, therefore, was made by way of punishment and attracted the provisions of Article 311(2) of the Constitution.

Learned counsel for the respondent relied on a letter. Exhibit P. 1, dated 1st October, 1962, written by the Superintendent of Police, Kapurthala, to the respondent and it reads:--

For your working during the period from 1st April 1961 to 31st March, 1962 you have been given a ''C'' confidential report and that it has also been reported that your honesty was doubtful. Your reputation for fair dealings with the public and accessibility to the public was reported fair. You were also reported not to keep co-operation with your fellow officers. Your general power of control and organising ability was reported fair. Your initiative was reported poor, and power of command ''so-so''. Your detective ability was also reported poor. Besides, you were reported an unreliable officer and your efficiency on parade too, was very weak.

You are, therefore, warned accordingly as described by the Deputy Inspector General of Police, Jullundur Range, vide his office; Memorandum No. 15737/JR, dated 24th September, 1962.

From this letter, it would be evident that the respondent was warned as desired by the Deputy Inspector General of Police, Jullundur Range, vide his office memorandum dated 24th September, 1962. It is clear that on that date, the Deputy Inspector General of Police passed the impugned order and also sent an intimation to the Superintendent of Police, Kapurthala, to issue a warning in writing to the respondent. It is on the basis of the contents of this document, that the learned counsel for the respondent submitted that a stigma was attached to the said officer, while reverting him. The order of reversion had not been produced by the respondent. It was, however, brought into evidence by Siri Chand, Head Constable in Superintendent Police''s office as P. W. 1, and the said order reads :

Officiating A.S.I. Manohar Lal No. 104/LDH of Kapurthala District, is reverted to the substantive rank of Head Constable with effect from 30th September, 1962 afternoon.

This is the impugned order in the present case and it is apparent therefrom that nothing has been said therein against the respondent and he had been merely reverted from his officiating rank to the substantive one. On its strength, counsel for the appellant submitted that no stigma was attached to the respondent and it was a routine reversion and not passed by way of punishment.

A number of Supreme Court decisions were cited in support of their respective contentions by both the counsel. There are certain principles, which were not challenged by the counsel for the parties, and they are mentioned in the Supreme Court decision in The State of Punjab v. Sukh Raj Bahadur 1968 S.L.R. 701 and read as under:--

The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more could not attract the operation of Article 311 of the Constitution.

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

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.

An order of termination of service in unexceptionable form preceded by an enquiry launched by the super or authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

If there be a full-scale departmental enquiry envisaged by Article 311, i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.

Further in K.H. Phadnis v. State of Maharashtra 1971 S.L.R. 345 it has been observed by the Supreme Court--

The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A parson holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore, though the government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors to be considered in ascertaining whether the order is a genuine one of "accident of service" in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment, Article 311 will be attracted.

It is, therefore, clear that the order of reversion alone has not to be seen, because it may be innocuous, but still it can be passed by way of punishment and that would be found in each case by looking to the preceding or attendant circumstances. The officer, who is reverted, generally contends that it is passed by way of punishment and the Government, on the other hand, replies that it is made as a routine measure and on administrative grounds. In order to determine which of the two contentions is correct, one has to look to the circumstances of the case and then determine the truth.

It has been ruled by the Supreme Court that if the mis-conduct alleged against the officer is a mere motive, then it would be held that the order is not bad. On the other hand if the Court comes to the conclusion that the mis-conduct was the foundation or the basis of the order, then in such a case the provisions of Article 311 would be attracted (See in this connection the Supreme Court decision in The State of Bihar v. Shiva Bhikshuk Mishra 1970 S.L.R. 863). Therefore, we have to find out as to whether, in the instant case, the misconduct was a mere motive or the foundation of the impugned order.

I have gone through a number of decision, but it so happens, that the test for finding out whether in a particular case the mis-conduct is a motive or the foundation of the order, has not been specifically laid down. It, however, seems that the cases in which the Supreme Court held the order as attracting the provisions of Article 311 were by and large those in which the facts showed that there was an enquiry into the misconduct of the person concerned, to which he was made a party. It is pertinent to mention that the said enquiry was not a regular one under the law. Some allegations of mis-conduct were made against the officer and in order to determine the truth thereof, an enquiry was conducted and the officer was associated with the same. It has to be made clear that there can be two types of enquiries. If the enquiry was made merely to find out the suitability of the person concerned for the post on which he was officiating without of course associating him with it, and the result of the enquiry was that he was not considered by his senior officers to be fit for holding that higher post and he was reverted on that ground, then in such case, it had generally been held that the order did not attract the provisions of Article 311 of the Constitution. It is to be remembered that if somebody is holding a higher post in an officiating capacity and he is reverted therefrom, ''there is always some reason for doing so. Either the post is abolished'' or the person concerned is not found suitable for holding that rank. But it is difficult to visualise a case where without any reason whatsoever, the Government reverts a person. As I have said that if the person is found unsuitable for the higher rank and he is reverted on that basis, it is a motive for his reversion and such an order will not attract the provisions of Article 311 (2) of the Constitution. In the other case, however, where allegations are made against the officer and an enquiry is made to find out the guilt of the person concerned and the officer ordering the enquiry has not yet made up his mind as to what action should be taken and the same would depend on the result of the enquiry, then in such a case, when the enquiry is actually made and the officer associated with it and thereafter an order is made on the basis of the finding given in that enquiry, it has been held that Article 311 would be attracted.

Reference during the course of arguments, was made to several decided cases. In Union of India and others v. R.S. Dhaba 1969 S.L.R. 442, though in the impugned order itself, the word used was that the person was unsuitable, still it was held by the Supreme Court that it was not made by way of punishment. It would be seen from the facts of that case that there was no enquiry on any allegation made therein, though certain complaints about his integrity had been made against the person concerned.

In Ram Gopal Chautervedi v. State of Madhya Pradesh 1969 S.L.R. 429, it was held that the provisions of Article 311 were not attracted. In that case there was an informal enquiry merely to ascertain whether the person concerned should be retained in service or not and it is significant to mention that the officer was not associated with the said enquiry.

In Appar Apar Singh v. The State of Punjab 1971 S.L.R. 71, it was held that Article 311 applied to that case. In that case, an enquiry was made and the person concerned was associated with it. He had put in an application and then findings were given. After the enquiry, a recommendation was made against him and on that basis, the impugned order was passed.

In K.H. Phadnis''s case an enquiry was made, the person concerned was associated with it and it was held that Article 311 applied.

In Shiva Bhikshuk Mishra''s case, an enquiry was made regarding the misconduct and it was then held that Article 311 applied.

In Sukh Raj Bahadur''s case, no enquiry was made and it was held that Article 311 did not apply.

Reference was made by the learned counsel for the respondent to another Supreme Court decision in R.K. Bhatt v. Union of India 1970 S.L.R. 867. But in that case no final decision was given by the Supreme Court and the case was remanded to the High Court with these observations :

The High Court does not, with respect, appear to have gone fully into all the circumstances and matters which required determination and investigation for finding whether the termination of services of the appellant had been ordered in the ordinary course because his services were no longer required or whether it was by way of punishment that that action was taken. In the recent decisions of this Court, i.e. The Union of India and another v. R.S. Dhaba, income tax Officer, Hoshiarpur 1969 S.L.R. 442 and State of Bihar and others v. Shiv Bhikshuk Mishra, 1970 S.L.R. 863, the tests laid down by this Court for decision of cases of the present kind have been re-stated and reiterated. It is for the High Court to reconsider the entire matter in the light of these tests and other relevant cases and give a fresh decision. The case is accordingly remanded to the High Court for the aforesaid purposes. In the circumstances there will be no order as to costs.

Bearing the principles laid down in the various decisions given by the Supreme Court as mentioned above, it would be seen that, in the instant case, no enquiry whatsoever was made either for finding out the suitability of the respondent for the officiating rank of Assistant Sub-Inspector of Police, which he was holding, or into the allegations of misconduct made against him. That being so, it has to be held that the impugned order was not made by way of punishment and what was stated in Exhibit P. 1, quoted above, might be a motive for reverting him to his substantive rank of Head Constable. As I have said there is always some reason for the action and on the basis of the allegations made against him the Deputy Inspector General of Police thought that the respondent was not suitable for holding the officiating rank of Assistant Sub Inspector of Police.

In view of what I have said above, I would accept this appeal, set aside the judgment and decree of the learned Additional District Judge and restore those of the trial court. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.