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PETITIONER: STATE OF BIHAR & ORS.

       Vs.

RESPONDENT: SHIVA BHIKSHUK MISHRA

DATE OF JUDGMENT: 14/09/1970

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. HEGDE, K.S.

CITATION:  1971 AIR 1011            1971 SCR  (2) 197  1970 SCC  (2) 871  CITATOR INFO :  R          1974 SC 423  (19)  RF         1974 SC1317  (10)  F          1974 SC2192  (67)  RF         1976 SC1766  (12)  RF         1976 SC2547  (16,21)  D          1978 SC 363  (11)  R          1979 SC 684  (7)  D          1980 SC1459  (7)  R          1984 SC 636  (11)  RF         1986 SC1626  (24)  R          1986 SC1790  (10)

ACT: Constitution   of  India,  1950,  Art.   311-Reversion   and -dismissal   of   civil  servant-Order  of   reversion   not containing   express   words  casting   stigma-Entirety   of circumstances  must be seen to determine whether  order  was one  by way of punishment though not expressly  so-Dismissal by officer subordinate to appointing authority invalid.

HEADNOTE: The respondent was holding the substantive post of  Sergeant in the Bihar Police Force till July 31, 1946.  On August  1, 1946  he  was promoted to officiate in the  higher  post  of Subedar.    In  January  1948,  while  still   holding   the substantive  post of Sergeant he was promoted  to  officiate temporarily   as  Subedar  Major.   In  October   1950   the Commandant  of the Bihar Military Police, Muzaffarpur  wrote to  the  Deputy  Inspector General of  Police  Armed  Forces suggesting that the respondent should be censured for having assaulted   an  orderly.   The  Deputy   Inspector   General recommended  to  the Inspector General that in view  of  the aforesaid  incident  the  respondent  be  reverted  to   his substantive  post  of- Sergeant pending the  result  of  the departmental enquiry for misconduct which was already  going on  against  him.  In November 1950  the  Inspector  General reverted the respondent to the post of Sergeant.  After  the conclusion  of  the department enquiry  the  respondent  was dismissed  from  service in April 1953 by an  order  of  the Deputy  Inspector General.  In February 1954 the  respondent

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filed  a suit for declaration that his demotion to the  post of  Sergeant  and  subsequent dismissal  from  service  were wrongful,   illegal  and  inoperative.   The   trial   court dismissed  the suit.  The High Court on 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 the finding on an  inquiry  about some   complaint  against  the  plaintiff  in,  by  way   of punishment to him.’ The order of dismissal was set aside  on the  ground  that it had been made by the  Deputy  Inspector General  while the appointing authority in the case  of  the post  of  Subedar-Major was the Inspector  General  so  that there was a violation of Art. 31 1 ( 1 ). In appeal to  this Court  against the judgment of the High Court  the  question that fell for consideration was was whether the reversion of the  respondent from the post of  officiating  Subedar-Major was  made  in circumstances which would attract  the  appli- cability of Art. 311(2) of the Constitution. HELD : Dhaba’s case is not an authority for the  proposition that  so  long  as  there are no  express  words  of  stigma attributed  to  the conduct of a Government officer  in  the impugned order it cannot be held to have been made by way of punishment.  The form of the order is not conclusive of  its true  nature and it might merely be a cloak  and  camouflage for an order founded on misconduct.  It may be that an order which  is  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 administrative routine.  But the entirety  of circumstances  preceding or attendant on the impugned  order must 192 be  examined and the overriding test will aways  be  whether the misconduct is a mere motive or is the very foundation of the order. 1196 C-E] In  the present case the High Court found that the order  of reversion was made owing to the note of the Deputy Inspector General  of Police following the report of  the  Commandant. The order of reversion was directly and proximately  founded on  what the Commandant and the Deputy Inspector General  of Police  said relating to the respondent’s conduct  generally and in particular with reference to the incident of  assault by him on the orderly.  There was no reason to disagree with the  High Court that the order of reversion wits  void.   In that  situation  it  was  not disputed  that  the  order  of dismissal  which was passed by the Deputy Inspector  General of  Police violated Art. 311(1) of the Constitution and  had been rightly set aside by the High Court. [196 F-G] State  of Punjab & Ant-. v. Shri Sugh Rai Bahadur, [1968]  3 S.C.R.  234  and S. R. Tiwari v. Distriction Boarad  Aqra  & Anr. [1964] 3 S.C.R. 55, applied. Union  of India v. R. S. Dhaba, I.T.0. Hosliiarpur, C.A.  No 882/66 dt. 7-4-69, distinguished and explained,

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1363  of 1966. Appeal from the judgment and decree dated August 25, 1965 of the Patna High Court in First Appeal No. 257 of 1960. D.   Goburdhun and R. Goburdhun, for tile respondent, The Judgment of the Court was delivered by Grover, J. This is ,in appeal by certificate from a judgment of  the  Patna High Court.  The respondent was  holding  the

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substantive post of a Sergeant in the police force till July 31, 1946 in the State of Bihar.  Oil August 1, 1946 lie  was promoted  to officiate in the higher post of  Subedar.   Oil 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 October 3, 1950  the Commandant  of the Bihar Military Police, Muzaffarpur  wrote to  the  Deputy Inspector General of Police,  Armed  Forces, mentioning  ,in  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 reoccurrence of the  Subedar Major’s gross misconduct, I suggest he be censured for 193 his unsatisfactory behaviour where he failed to maintain the required discipline".  The Deputy Inspector General wrote  a note to the Inspector General as follows :-               "Kindly  see  pp. 15-12 which  relate  to  the               notorious  Subedar  Major  S.  B.  Missir,  of               B.M.P.  VI  whose  conduct  is  already  under               enquiry by a Board to be presided over by  the               I.G. himself.               In  this particular case 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.               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  of  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 for promotion.  The Subedar  Major,               is  perhaps, too old to learn and in any  case               cannot  be posted as a Sergeant Major 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.P.P.  by               Mr. Creed’s Board. 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 service will be decided after the Board of enquiry concludes its  labour.   I  am purposely  suggesting  his  posting  to Hazaribagh  because he will be ,far away from the  witnesses 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." The  Inspector-General made an order on November 2, 1950,  " as  proposed".   In  the first week  of  November  1950  the respondent  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 April 7, 1953 an order was made by the  Deputy-Inspector- General dismissing, the respondent from service.

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In  February  1954  the  respondent  filed  a  suit  for   a declaration  that  his demotion from the rank of  a  Subedar Major  to that of Sergeant and dismissal from  service  were wrongful, illegal and inoperative and that he had all  along remained a Subedar-Major.  He further claimed a decree for a sum  of Rs. 3118/- on account of arrears of pay as  detailed in Schedule I attached to the plaint 194 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 on 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 he had been appointed to officiate in the post  of Subedar Major, that authority being  the  Inspector General  of  Police.  The dismissal  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. 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. Shri Sukh Rai  Bahadur(1) stated the following propositions on a consideration of  the numerous decisions on the point --               "1.  The services of a temporary servant or  a               probationer can be terminated under the  rules               of his employment and such termination without               anything more would not attract the  operation               of Art. 31.1 of the Constituion.               2.The circumstances preceding or attendant               on  the  order  of  termination  have  to   be               examined  in each case, the motive  behind  it               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 temporary servant.               4.An  order of termination of  service  in               unexceptionable  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  the               operation of Art. 311 of the Constitution.               (1)   [1968] 3 S.C.R. 234.               195               5.It  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  con-

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             sidered,  any order of termination of  service               made thereafter will attract the operation  of               the said article". The argument sought 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  involving  an  assault by the  respondent  on  his orderly  it  would  not be a case of  reversion  by  way  of punishment.  A great deal of stress is laid on the fact 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 India & Anr. v. R. S. Dhaba, Income Tax  Officer,  Hoshiarpur(1) in which Mr.  Pillai  the  then Commissioner  of  Income  tax  had  said  that  the  officer concerned should be reverted because of the the large number of complaints which the department had received against  his integrity  and  the  bad reports received by  him  from  his superiors.  The successor of Mr. Pillai Mr. S. R. Mehta made an  order  on  May  22,  1.964  to  the  effect  that  Dhaba officiating  Income  tax  Officer Class 11  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 (A  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:-               "The test for attracting Art. 31 1 (2) of  the               Constitution  in  such a case is  whether  the               misconduct or negligence is a mere motive  for               the  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 India [1964] 5 S.C.R. 190.   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,               (1).C. A. 882/66 cit. 7th April 1969.               196               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". 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 conduct  of  a Government Officer in the impugned  order  it cannot be held to have been made by way of punishment.   The test as previously laid and which ’was 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(1) case it was not found that the  order of  reversion was based on misconduct or negligence  of  the

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officer. So far as we are aware no such rigid principle has ever been laiddown by this Court that one has only to  look to  the order and if it does not contain any  imputation  of misconduct  or words attaching a stigma to the character  or reputation  of a Government 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 tile order had been  made by  way  of  punishment.   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. ( 2 ). It may be  that an order which is 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 administrative routine.  But the entirety  of circumstances  preceding or attendant on the impugned  order must  be  examined and the overriding test  will  always  be whether  the  misconduct  is a mere motive or  is  the  very foundation of the order. In  the present case the High Court found that the order  of reversion  was  made  owing  to  the  note  of  the-  Deputy Inspector-General  of  Police following the  report  of  the Commandant.   The  order  of  reversion  was  directly   and proximately  founded oil 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  dis- puted 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. 3 1 1 (1 )  of the Constitution. The appeal fails and it is dismissed with costs. G.C.      Appeal dismissed. [1] C.A. 882 of 1966 dt. 7-4-69.   (2). (1964) 3 S.C.R.55. L235 Sup. CI/71--2500-17-11-71     --GIPF. 197