(J.C. Shah, V. Ramaswami and V. Bhargava, JJ.)
Jasbir Singh Bedi __________________________________ Appellant;
v.
Union of India and Others _________________________ Respondent(s).
Civil Appeal No. 1272 of 1966†, decided on January 12, 1968
The Judgment of the Court was delivered by
V. Ramaswami, J.:—
1. This appeal is brought by special leave from the judgment of the Punjab High Court dated 25-1-1966 in Letters Patent Appeal No. 116-D of 1965 whereby the judgment of S.K. Kapoor, J. of that High Court dated 14-10-1965 dismissing the appellant’s writ petition (CW No. 255-D of 1965) was affirmed.
2. The appellant joined as a clerk in the Assam Rail Link Project on 11-10-1948. On 1-10-1951 he was appointed as a clerk in the grade Rs. 55-130 in the East Punjab Railway. On 19-7-1958, the Government of India, Railway Department invited recommendations to fill vacancies of Vigilance Inspectors in the grade Rs. 300-400 and also in the grade Rs. 260-350. A large number of recommendations were sent by various departments and the appellant was one of those whose recommendation was made.
3. On 16-8-1960, the appellant was appointed as Vigilance Inspector in the grade of Rs. 260-350 and the order of appointment was to the following effect:
“NORTHERN RAILWAY
Headquarters Office,
Baroda House,
New Delhi.
Notice
1. Shri S.C. Misra, Section Controller grade Rs. 200-300 at present officiating as Vigilance Inspector grade Rs. 300-400 (an ex-cadre post) is reverted to his parent department with immediate effect.
2. Shri B.K. Dass Malhotra, Vigilance Inspector grade Rs. 260-350 promoted as Vigilance Inspector grade Rs. 300-400 vice Item 1.
3. Shri Jasbir Singh, clerk grade Rs. 60-130 FA & CAO’s office is promoted as Vigilance Inspector grade Rs. 260-350 vice Item 2.
These orders have the approval of SDGM and SPO III.
sd/-
APO I
No. 752E/169 #(Eiiia)Dated 16-8-1960
Copies for information and necessary action to:
1. APO II. He will please issue posting orders of Shri S.C. Misra.
2. Head Clerk Bills.
3. SAO (Administration), the Mall Delhi.
4. Vigilance Officer.”
4. The case of the appellant was that in his inspection note of December 1964 the Additional Member (Vigilance), Railway Board made certain adverse remarks against the appellant and suggested that he should be reverted to his parent department as early as possible. On 2-2-1965, an order was issued stating that “Shri Jasbir Singh Bedi, officiating Vigilance Inspector in scale Rs. 335-425 (AS) is reverted to his parent department with immediate effect”.
5. The appellant thereafter moved the Punjab High Court on 27-4-1965 for the grant of a writ to quash the order of reversion. The contention of the appellant was that his promotion as Vigilance Inspector was on a permanent basis and the order of reversion was made without making any enquiry into the allegations made against him and without giving him an opportunity to rebut the same. It was contended that the order of reversion was in effect an imposition of penalty which could not be imposed except by following the procedure laid down under Article 311 of the Constitution and Para 1708 of the Railway Establishment Code.
6. The case of the respondents was that the entire cadre of Vigilance Inspectors was temporary and therefore the promotion of the appellant was also in a temporary capacity. It was said that the appellant was never confirmed as Vigilance Inspector and, having been promoted temporarily, the appellant could be reverted at any time as he had no right to continue to hold the post of Vigilance Inspector.
7. S.K. Kapoor, J. held, after considering the rival contentions of the parties that it was not possible to determine on the materials available whether the appellant was appointed as a permanent Vigilance Inspector. On the assumption that the appointment was on temporary basis the learned Judge held that the order or reversion was not made by way of punishment and the provisions of Article 311 of the Constitution was not attracted.
8. Aggrieved by the decision of S.K. Kapoor, J. the appellant filed the letters patent appeal which was dismissed by Letters Patent Bench by its judgment dated 25-1-1966.
9. In support of this appeal Mr. Gokhale contended, in the first place, that the High Court was wrong in taking the view that the material on the record was not sufficient to decide the question whether the appellant was appointed as a Vigilance Inspector on a permanent or on a temporary basis. It was said that there was ample evidence to show that the appellant was recruited as Vigilance Inspector on a permanent basis. It was pointed out that in the order of appointment dated 16-8-1960 there was no mention that the appellant was appointed temporarily or in an officiating capacity.
10. It was, however, contended on behalf of the respondents that the omission was immaterial, because the Vigilance Department itself was temporary and the appointment of the appellant as Vigilance Inspector must, therefore, be deemed to be in a temporary capacity.
11. Reference was also made to the gradation list of Class III Accounts Staff corrected up to 1-4-1963 and it was pointed out that the appellant was shown as a permanent clerk in that gradation list.
12. It was argued for the respondents that as the lien of the appellant was retained in the parent department, his promotion as Vigilance Inspector must be deemed to be on a temporary basis.
13. Mr. Gokhale also referred to the Railway Board’s Order quoted at p. 162 of the Indian Railway Establishment Code, Vol. II, Third Reprint. The Order states:
“A temporary post may be held either substantively or in an officiating capacity. Substantive appointments to temporary posts shall be made only when the posts are to all intents and purposes quasi-permanent or when they have been sanctioned for a period of not less than or there is reason to believe that they will not terminate within a period of three years. In all other cases appointments to temporary posts shall be made in an officiating capacity.”
14. But the Order is not of much assistance to the appellant, because Annexures R-7 dated 28-2-1961, R-9 dated 24-6-1963 and R-10 dated 9-3-1965 of the counter-affidavit indicate that all the appointments as Vigilance Inspectors were temporary and the posts were extended for a period of two years at a time.
15. With regard to the order of appointment dated 16-8-1960 it was pointed out on behalf of the respondents that Shri S.C. Misra was officiating as Vigilance Inspector in the grade Rs. 300-400 and when he was reverted to his parent department, Shri B.K. Dass Malhotra who was officiating in a lower grade was promoted to his grade which should be deemed to be in an officiating capacity, and, similarly, the appellant was promoted in the place of Shri B.K. Dass Malhotra as Vigilance Inspector which again should be deemed to be in an officiating capacity. Having regard to the circumstances in this case, we are of opinion that the High Court was right in holding that the question whether the appellant’s appointment as Vigilance Inspector was permanent or temporary could not be satisfactorily decided without taking further evidence and the High Court therefore rightly declined to decide the question in the present writ petition.
16. In our opinion, the present case falls within the principle of the decision of this Court in Union of India v. T.R. Varma1 where it was pointed out that it is not the practice of the High Courts to decide in a writ petition under Article 226 of the Constitution disputed questions of fact which cannot be satisfactorily decided without taking evidence.
17. Mr. Gokhale then stated that he would concede that the appellant was appointed in a temporary capacity as Vigilance Inspector, and even on that basis the order of reversion was illegal, because it was made by way of punishment and the provisions of Article 311(2) of the Constitution would be attracted. It was argued that the order of reversion was made because of the inspection note of the Additional Member (Vigilance), Railway Board which reads as follows:
“In this case, Shri Rahat Maulavy, MLA of U.P. Vidhan Sabha, had sent a complaint to the Railway Minister, alleging that one Vigilance Inspector of Northern Railway, Shri J.S. Bedi, had used abusive language towards the late Prime Minister Shri Jawaharlal Nehru while talking to one Ticket Collector, Shri Z.A. Khan of Moradabad. The MLA had also stated that the abovementioned officer and staff at Moradabad were playing havoc with the Railway staff and were indulging in malpractice of accepting illegal gratification in kind. The Board (CRB) had ordered enquiries to be conducted by the CIA into the first allegation only and it was gathered that the reputation of Shri Bedi is not good.
I discussed this case with Shri S.P. Lal, SDGM (V) and Shri Kapur Singh, Vigilance Officer, Northern Railway, on 2-12-1964. In this case, the allegations could not be substantiated but the reputation of the Vigilance Inspector, Shri Bedi did not appear to be good. It may be better in this case, therefore, to take an administrative decision rather than go through the rigmarole of a prolonged enquiry. Administratively speaking, Shri Bedi’s performance during the last nine months has been only one case initiated by him as against 17 surprise checks conducted by him which are all stated to be minor. His performance is, therefore, not very impressive. On administrative grounds, therefore, it is time that he is sent to his normal duties, especially as he was appointed Vigilance Inspector on 29-8-1960, which is more than four years ago. SDGM (V) told me that he would be taking action accordingly to revert Shri Bedi.”
18. But in the order of reversion dated 2-2-1965 no reason has been given and there is nothing in that order to show that there was a stigma attached to the appellant.
19. In the inspection note of December 1964 the Additional Member (Vigilance), Railway Board has said that the performance of the appellant while officiating as Vigilance Inspector was not impressive and only one case was initiated by him as against 17 surprise checks conducted by him. It was also stated therein that the reputation of the appellant did not appear to be very good and it was therefore necessary to send him back to his normal duties on administrative grounds.
20. It is well established that a government servant who is officiating in a post has no right to hold it for all time and the government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which Article 311 of the Constitution could be attracted.
21. It was argued on behalf of the appellant that the order of reversion was made by way of punishment. But there are no express words in the order of reversion dated 2-2-1965 which would throw a stigma on the appellant.
22. It is, of course, well settled that temporary government servants are also entitled to the protection of Article 311(2) of the Constitution in the same manner as permanent government servants if the Government takes action against them meting out one of the three punishments, namely, dismissal, removal or reduction in rank. (See Parshotam Lal Dhingra v. Union of India2.) But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in Parshotam Lal Dhingra case2 the two tests applicable in a matter of this description are:
(1) whether the government servant has a right to the post or the rank, or
(2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the government servant had been punished.
23. Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The test for attracting Article 311(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. Union of India3.)
24. In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the appellant and therefore it cannot be held that the order of reversion was made by way of punishment and the provisions of Article 311 of the Constitution are consequently attracted. This view is supported by the decision of this Court in State of Bombay v. F.A. Abraham4 in which the respondent who held the substantive post of Inspector of Police and had been officiating as the Deputy Superintendent of Police was reverted to his original rank of Inspector without being given any opportunity of being heard in respect of the reversion. His request to furnish him with reasons of his reversion was refused. Later a departmental enquiry was held behind his back in respect of certain allegations of misconduct made against him in a confidential communication from the District Superintendent of Police to the Deputy Inspector General of Police but these allegations were not proved at the enquiry. The Inspector General of Police thereafter wrote to the Government that the respondent’s previous record was not satisfactory and that he had been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn over a new leaf but the complaint made in the confidential memorandum was a clear proof that the respondent was habitually dishonest and did not deserve promotion. As the order of reversion was maintained by the Government, the respondent filed a suit challenging the order. The suit was decreed by the Court of first instance and the decree was affirmed by the High Court on appeal. On further appeal to this Court it was held that the reversion of the respondent on the ground of unsuitability was an action in accordance with the terms on which the officiating post was being held and was not a reduction in rank by way of punishment to which Section 240 of the Government of India Act, 1935 would be attracted. The appeal of the Government was allowed and the suit of the respondent dismissed.
25. A similar view was expressed by this Court in I.N. Saksena v. State of M.P.5 where it was pointed out that since there were no express words in the order of compulsory retirement itself which would throw a stigma on the government servant, there was no order of “removal” of the government servant requiring action under Article 311 of the Constitution.
26. On behalf of the appellant reference was made to the decision in Jagdish Mitter v. Union of India6. But the material facts of that case are different. The order impugned in that case was in the following terms: (Jagdish Mitter case6, AIR p. 456, para 21)
“21. … Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in government Service is hereby served with a month’s notice of discharge with effect from 1-11-1949.”
27. It was held that when the order referred to the fact that Jagdish Mitter was found undesirable to be retained in government service, it expressly cast a stigma on him, and in that sense must be held to be an order of dismissal and not a mere order of discharge.
28. In the present case, however, the order of reversion dated 2-2-1965 does not show on the face of it that any stigma was cast on the appellant and, though the inspection note of the Additional Member (Vigilance), Railway Board may constitute a motive for the reversion of the appellant, it is not possible to hold that the reversion of the appellant was by way of punishment and the provisions of Article 311 of the Constitution are consequently applicable to the case. We are accordingly of opinion that Mr. Gokhale is unable to make good his argument on this aspect of the case.
29. For the reasons expressed we hold that the judgment of the Punjab High Court dated 25-1-1966 in Letters Patent Appeal No. 116-D of 1965 is correct and this appeal must be dismissed with costs.
———
†Appeal by Special Leave from the Judgment and Order dated 28-1-1966 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 116-D of 1965
1 AIR 1957 SC 882 : 1958 SCR 499
2 AIR 1958 SC 36 : 1958 SCR 828
3 AIR 1964 SC 1854 : (1964) 5 SCR 190
4 AIR 1962 SC 794 : 1962 Supp (2) SCR 92
5 AIR 1967 SC 1264 : (1967) 2 SCR 496
6 AIR 1964 SC 449
