D.K. Mahajan, J.
1. This is an appeal under Clause 10 of the Letters Patent and is directed against the order of a learned Single Judge of this Court allowing the petition of one. Shri Apparapar Singh, under Article 226 of the Constitution of India challenging his reversion from the officiating rank of Class I in the Punjab Education Service to his substantive rank in the same service in Class II.
2. The relevant facts are few and simple. Shri Apparapar Singh (hereinafter referred to as the respondent) was Principal of the Government College, Mukatsar district Ferozepur, when the impugned order was passed. This position he came to occupy by reason of his promotion from Class II to Class I in September, 1960. His promotion to Class I was on officiating basis. He was appointed Principal on the 9th of May. 1963. He held this position till the impugned order was passed op 28th of April, 1964 reverting him from P. E. S. Class I to P. E. S. Class II. On his reversion, he was posted as Deputy Inspector of Schools of Agriculture, Chandigarh.
3. It will be proper at this stage to briefly set out the events that took place at Mukatsar leading to the respondent's reversion. It appears that the respondent had some trouble with the members of the staff. Some reports had gone to the superiors and they asked him to act tactfully. The complaints still persisted. The superior officers called him to Chandigarh and he was told about them. His demand to know the names of the complainants and also to go through the complaints was rejected; but he was told the gist of the same. This course seems to have been taken to avoid any victimization of the complainants by the respondent.
He was advised to proceed on leave which he declined. He was of the view that he could control the situation and asked for the transfer of two lecturers. It seems, the things were not proceeding satisfactorily between him and the department. He came to Chandigarh and asked the Director to visit the institution himself. Consequently, the Director of Public Instruction (Shri J.D. Sharma) timed his visit with the annual prize distribution of the college over which he presided. At that function, as usual, the Principal read his annual report. In that report, certain aspersions were cast against his staff. One of the members of the staff, namely. Shri S.C. Kapur interrupted the Principal's speech and remarked:
'What about those Principals who come drunk to the stage and do make-up of the girls?'
After this utterance, Shri Kapur walked out of the function. There seems to have been demand by one of the parents present at the function for an inquiry into the allegations made against the Principal. According to the respondent's version, the Director. Public Instruction, Shri Sharma, assured the audience that an inquiry will be promptly made through two senior officers and action would be taken to punish the guilty persons whether they belonged to Class I or Class II. According to the version of the Director. Public Instruction, as appears from the return filed by him. it is admitted that inquiry was demanded by some of the notable persons of the town and that he promised to send two senior officers for the purpose.
It is, however, denied that he observed that he would punish the officers whether belonging to Class I or Class II. The fact of the matter remains that the Director. Public Instruction, did depute two senior officers of the department, namely. Shri Harbans Singh and Shri Goverdhan Lal. both of whom are Deputy Directors, to make an inquiry into the affairs of the college. The points, that needed investigation were formulated by them (the enquiry officers) as follows:
(1) Were the allegations levelled by the Principal in his report true in respect to some members of the staff?
(2) Was it proper for the Principal to say all this in public meeting?
(3) Were the allegations levelled by Shri S.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 public men besides students and staff?
(5) The effect of all this on the general public mind particularly their reaction towards sending of their daughters to the colleges.
(6) The remedial measures to restore in the college a normal and healthy atmosphere conducive to academic pursuits.
These two senior officers made inquiries about these matters from all concerned including the Principal and arrived at the following conclusions:
'(1) The allegations levelled by the Principal against the members of the staff in his report are not 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 but to criticise them in public before parents and the general body of students was highly improper and was in very bad taste.
(3). The allegations levelled by Shri 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 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 incapable of any self-restraint 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 person cannot have a salutary influence on the students.
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These officers also suggested the remedial measures, and proposed punishments that should be awarded to Shri S.C. Kapur other respondent. I have gone through the file and the notings thereon and find that the remedies suggested by them in the main were accepted by the Secretary of the Department after obtaining advice from the Legal Remembrancer. The result was that the respondent was reverted to the substantive rank because he was found unfit to hold the responsible post of the Principal of the college; and so far as Professor Kapur is concerned, his services were terminated. Shri Kapur challenged the order of termination of his services by a petition under Articles 226 and 227 of the Constitution of India (Civil Writ No. 74 of 1964 (Punj) ). This petition was dismissed by Jindra Lal, J. on 28-7-1964.
So far as the respondent is concerned, h' challenged the order of his reversion from Class I to Class II in the P. E. S. by a similar petition under Article 226 of the Constitution of India. His petition came up for hearing before a learned Single Judge of this Court and the same was allowed. The learned Single Judge came to the conclusion that the order of reversion, so far as the respondent is concerned, was passed by way of punishment and as it was passed without complying with the provisions of Article 311(2) of the Constitution and amounted to reduction in rank, it could not be sustained. The learned Single Judge, however, in this view of the matter did not deal the disputed question of mala fides.
4. It may be observed at this stage that before the learned Single Judge two contentions were raised on behalf of the respondent--
'(1) That the impugned order reverting ,the respondent from his officiating higher rank to his lower substantive rank amounts to 'reduction in rank' within the meaning assigned to that phrase under Article 311(2) of the Constitution inasmuch as his reversion was not for administrative reasons or in the normal course; but was, in fact, by way of punishment; and
(2) That the impugned order is mala fide for the reasons set out in the petition.' So far as the first contention is concerned, two matters were raised before the learned Single Judge:
(a) That the order of reversion per se amounted to punishment; and
(b)That the impugned order of reversion was passed by way of punishment.
4-A. With regard to (a) and (b), reliance had been placed before the learned Single Judge on the decisions in P.C. Wadhwa v. Union of India, AIR 1964 SC 423; Madhav Laxman Vaikunthe v. State of Mysore, AIR 1962 S C 8; State of Bombay v. F.A. Abraham, AIR 1962 S C 794; Jagdish Mitter v. Union of India, AIR 1964 S. C. 449; Champaklal Chimanlal Shah v. Union of India, AIR 1964 S. C. 1854 and Narain Singh Ahluwalia v. State of Punjab Civil Appeal No. 492 of 1963 decided by Supreme Court on 29-1-1964.
After consideration of these decisions, the learned Single Judge was of the view that so far as the respondent's substantive rank in Class II P. E. S. was concerned, he had been visited with no evil consequences and no accrued benefits or benefits which were to accrue to him in that Class had either been taken away or adversely affected. Therefore, with regard to (a), the learned Single Judge was clearly of the view that no case had been made out. But with regard to (b), the learned Single Judge took the view that the order of reversion from his officiating rank in Class I P. E. S to Class II P. E. S. was passed by way of punishment and, therefore, the provisions of Article 311(2) were attracted and as the petitioner had not been afforded proper opportunity, which the law required to show cause against his reduction from Class I to Class II, the impugned order was liable to be quashed. Accordingly, the learned Single Judge allowed the respondent's petition under Article 226 of the Constitution of India and quashed the order. It is against this decision that the present appeal under Clause 10 of the Letters Patent has been preferred by the State Government.
5. Before dealing with the only ground, on which the decision has gone in favour of the respondent, it will be proper to state that no arguments were addressed by the learned counsel for the respondent on the question of mala fides. I have gone through the entire record and I am of the view that no case of mala fides has been made out; and the learned counsel rightly did not press the second contention that was raised before the learned Single Judge but was not decided by him in view of his decision on the first contention.
6. So far as the first contention is concerned, I am unable to accept the same. In my view, the learned Single Judge has not taken a correct view of the matter I would, therefore, state my reasons why I am unable to accept the view that prevailed with the learned Single Judge. The true legal position in service matters has been enunciated by Chief Justice Das in Parshotam Lal Dhingra v. Union of India, AIR 1958 S C. 36. After considering all the relevant case-law bearing on the subject and the various legal and constitutional provisions, the learned Chief Justice summarised the position thus---
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Any and every termination of service is not a dismissal, removal or reduction in rank A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander v. Union of India, AIR 1953 S. C. 250 Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh, 1955-1 SCR 26: AIR 1954 SC 369. In either of the two above mentioned cases the termination of the service did not carry with it penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service 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, as Chagla, C. J., has said in Shrinivas Ganesh v. Union of India, AIR 1956 Bom 455 wholly, irrelevant. In short, if the termination of ser vice is founded on the right flowing from con tract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances, be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order far the reduction also visits the servant with any penal' consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311 which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.
x x x x x x x x x x'
This decision is the basic decision and has been noticed invariably whenever a service matter has come for consideration. In my opinion, applying the test laid down in this decision, no case has been made out by the respondent for interference under Article 311(2) of the Constitution of India. It is common ground and it was indeed admitted before the learned Single Judge that so far as the respondent's emoluments, position and other rights in Class II P.E.S. are concerned, they have not been affected by the order of reversion. All that was contended was that his chances of promotion to Class I P.E.S. have been adversely affected. Every reversion, unless of course if it is due to the coming back of the substantive incumbent of the officiating post held by the person reverted or by reason of the post being abolished, does affect the chances of promotion of the person officiating in the higher rank.
A person officiating in the higher rank has no right to that post. He can be reverted from it without assigning any reason. But if he is reverted from it by way of punishment, the reversion will be bad because in that case the provisions of Article 311(2) would be attracted. But if the reversion is not by way of punishment but because the person reverted is not found suitable to hold that post, per se it will not amount to punishment though a stigma does attach by reason of the reversion that he was found unfit to hold a higher post. In each case, one has to look into the totality of circumstances leading to reversion in order to determine whether the order of reversion has been passed by way of punishment or otherwise.
Broadly speaking, from a layman's point of view, every order of reversion would amount to an order of punishment. But that would not be the true legal position in law. The authority promoting a person to an officiating post has also the right to revert him back to the substantive post unless of course that authority was reverting the officiating hand by way of punishment. The mere use of the word 'punishment' has no charm about it. Moreover, the motive operating in the mind of the authority, while passing the order of reversion, has no relevancy as frequently observed by their Lordships of the Supreme Court while dealing with service matters; e.g., Parshotam Lal Dhingra's case, AIR 1958 SC 36 (supra); AIR 1954 S. C. 369 and AIR 1964 S. C. 1854. I am also taking the liberty of quoting the observations of Wanchoo J. in Champaklal Chimanlal Shah's case, AIR 1964 SC 1854 because they have direct bearing so far as the present case is concerned. These observations are in the following terms:
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It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case, there is nothing further to be said and his services terminate when the post comes to an end. Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to government. It may decide to dispense with the services of the servant or revert him to substantive post without any action being taken to punish him for his bad work and/or conduct. Or the government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry, the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this enquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant. In this enquiry, evidence both documentary and. oral may be led against the public servant concerned and he has a right to cross-examine the witnesses tendered against him. He has also the fight to give documentary and oral evidence in his defence, if he thinks necessary to do so. After the enquiry is over, the enquiry officer makes a Report to the Government or the authority having power to take action against the servant concerned. The Government or the authority makes up its mind on the inquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines, tentatively the punishment, to be inflicted on the public servant concerned. It then communicates a copy of the enquiry officer's report and its own conclusion thereon and asks him to show cause why the tentative punishment decided upon be not inflicted upon him. This procedure is required by Article 311(2) of the Constitution in the case of the three major punishments, i.e., dismissal or removal or reduction in rank. The servant concerned has then an opportunity of showing cause by making representation that the conclusions arrived at the departmental enquiry are in-correct and in any case the punishment proposed to be inflicted is too harsh.
Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already, government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a government servant holding a higher rank temporally it must not be confused with the regular departmental enquiry (which usually follows such a preliminary enquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporarily to which he has no right. In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned there the Such a preliminary enquiry may even be held ex parte. for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the government and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Article 311 and all the rights that that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in Parshotam Lal Dhingra's case, 1958 SCR 828: (AIR 1968 SC 36) and in (1966) 1 SCR 26: AIR 1964 SC 369 that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.' The case directly in point is the decision of the Supreme Court in the State of Orissa v. Ram Narayan Das, AIR 1961 S. C. 177. In this case, in a private enquiry a finding was given that the government servant was guilty of misconduct, e.g., acceptance of illegal gratification and fabrication of official records. He was a probationer. His services were terminated in accordance with the Rules and the contract of service with a finding that he was not fit for confirmation in that service. It was held that such an order of discharge did not amount to punishment. This ease was considered by their Lordships of the Supreme Court in AIR 1964 1 C. 449 and Gajendragadkar J., as he then was, spoke for the Court thus--
'In AIR 1961 S. C. 177, this Court was dealing with a case of a Sub-Inspector on probation in the Orissa Police Force, who had been discharged. His case that the discharge amounted to dismissal had been upheld by the Orissa High Court, but was rejected by this Court in appeal, because this Court came to the conclusion that the impugned order of discharge could not properly be held to be an order of dismissal. It is true that the impugned order of discharge did refer to the adverse comments made against the probationer's conduct and did say that it was, therefore, no good retaining him further in service and that, prima facie, would amount to attaching a stigma to the probationer who was discharged; nevertheless, the order was construed by this Court to be an order of discharge simpliciter and no more, because Rule 56 (b) of the Civil Services (Classification, Control and Appeal) Rules required that before the services of a probationer were terminated, an enquiry had to be held about his competence after giving him an opportunity to show cause against the grounds alleged against him; and it was because such an enquiry had to be held that the result of the enquiry was communicated to the probationer when he was discharged. In other words, the statements in the order of discharge on which the probationer had relied for the purpose of showing that the said order amounted to dismissal, had to be made in the order as a result of the requirements of Rule 55(b). and so, this Court came to the conclusion that merely on the strength of the said statements, the impugned order could not be characterised as an order of dismissal. In dealing with this question, this Court observed that the enquiry against the respondent (probationer) was for ascertaining whether he was fit to be confirmed, and so, 'an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed' could not, in law, by treated as an order of dimissal. Thus, this decision illustrates the importance of the character of the enquiry held against a temporary servant which may ultimately lead to the termination of his services. It also emphasizes that if the probationer's contention had been upheld, it would virtually have meant that every order of discharge passed against a probationer after complying with the requirements of Rule 55 (b) would have to be treated as an order of dismissal and that obviously cannot be right'
I am not unmindful of the fact that the order of discharge from service, if it is not a speaking order though passed on the ground of misconduct does not stand in the way of the person discharged to seek employment elsewhere. In other words, such an order does not attach any stigma to the person discharged from government service. But in the case of reversion of a person from a higher rank to a lower rank, the reasons for reversion are known to the department and are recorded in the official file. Therefore, the chances of promotion of a person reverted from a higher rank to a lower rank, excepting in two cases already noticed, namely, the permanent incumbent of that post having come back from leave or the post having been abolished, do stand in the way of promotion to the higher rank
It is only when the person concerned has put in exceptionally good work in the lower rank or has otherwise improved that he may be considered for promotion. But the question always is whether such a reduction, which is in accordance with the rules as well as the contract of service, can be held to be illegal by reason of Article 311(2) of the Constitution of India. The rule, that is Reducible from the decided cases particularly those of the Supreme Court, appears to be that unless the reduction is by way of punishment, it cannot be called in question because the provisions of Article 311(2) are not attracted.
7. Therefore, in every case of reduction what has to be determined is whether the reduction was by way of punishment. In the present case, the learned Single Judge did come to the conclusion that the reduction was by way of punishment and if it was so, I would not be inclined to interfere with his order But after considering the entire circumstances of this case. I am clearly of the view that the reduction in the present case was not by way of punishment It is not a case where the misconduct of a government servant had come to the notice of the government and the government decided that the government servant should be punished for that misconduct and then proceeded to carry out that intention.
It is a case where certain matters transpired in the normal functioning of an institution. An enquiry was conducted into those matters and it was ultimately discovered that what had happened rendered the government servant, that is the respondent, unfit to hold the responsible post of a Principal. No penalty was imposed on him for that misconduct inasmuch as his seniority, his emoluments and his chances of promotion in his substantive rank were not al all affected by the order of reversion.
All that was done was that he was reverted from the officiating rank to his substantive rank. No evil consequences, as envisaged in Parshotam Lal Dhingra's case. AIR 1958 SC 36. were visited on him. As a matter of fact, the file discloses that the appropriate authority nowhere used the phrase that the respondent should be punished. The enquiry officers did recommend that a suitable punishment should be awarded and in any case the respondent should be reduced in rank, that is from Class I to Class II without assigning any reason. But so far as the appropriate authority is concerned, neither it started the proceedings with a view to punish the respondent nor, at any time even after the report, it decided to punish the respondent. It appears to me that the present case is covered fully by the observations of the Supreme Court in Parshotam Lal Dhingra's ease. AIR 1958 SC 36.
Therefore, I am unable to hold that the impugned order of reversion was passed by way of punishment. I have no doubt that if the respondent shows better promise, the authorities will, whenever a chance arises, promote him to the higher rank. There is no order on the file that under no circumstances the respondent will be promoted to the higher rank. The respondent invited the trouble upon himself by his own act and he is to blame himself for that. No blame rests upon the superior authorities in this case
8. For the reasons recorded above, I allow this appeal, set aside the order of the learned Single Judge and dismiss the petition; but will leave the parties to bear their own costs throughout
Mehar Singh, C.J.
9. I agree.