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Amar Nath Gupta Vs. General Manager, Northern Railway and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2809 of 1964
Judge
Reported inAIR1967P& H145; (1968)ILLJ748P& H
ActsConstitution of India - Article 311
AppellantAmar Nath Gupta
RespondentGeneral Manager, Northern Railway and ors.
Appellant Advocate Rajinder Sachar, Adv.
Respondent Advocate Pratap Singh and; Birinder Singh, Advs.
DispositionPetition allowed
Cases ReferredState of Punjab v. Ved Parkash Vohra
Excerpt:
.....adverse report was given to him till may 1963. in march 1958 he was even granted a commendation certificate for the good work done by him. 3. the argument of the learned counsel is that the petitioner had been reverted as a measure of punishment and since this order had been passed without complying with the provisions of article 311 of the constitution, the same was bad in law and deserved to be quashed......officer iii, northern railway, baroda house, new delhi, respondent no. 3, reverting him to his parent department with effect from 3-8-64.2. there is no dispute about facts in this case. in the year 1925 the petitioner joined the north western railway. in 1947 after the partition of the country, he migrated to india and became an employee of the eastern punjab railway. this railway now formed a part of the northern railway. on 3-3-1952 he was promoted as a senior clerk grade iii. in may 1952 he was made an assistant fire master. in 1953 he was confirmed as clerk in grade iii, by the works manager, northern railway workshop, jagadhri, respondent no. 2.in 1956 the general manager of the northern railway, respondent no. 1, asked the different heads of the northern railway to send the.....
Judgment:
ORDER

P.C. Pandit, J.

1. This petition under Articles 226 and 227 of the Constitution has been filed by Amar Nath Gupta challenging the legality of the order dated 30-7-1964 passed by the Senior Personnel Officer III, Northern Railway, Baroda House, New Delhi, respondent No. 3, reverting him to his parent Department with effect from 3-8-64.

2. There is no dispute about facts in this case. In the year 1925 the petitioner joined the North Western Railway. In 1947 after the partition of the country, he migrated to India and became an employee of the Eastern Punjab Railway. This Railway now formed a part of the Northern Railway. On 3-3-1952 he was promoted as a Senior Clerk Grade III. In May 1952 he was made an Assistant Fire Master. In 1953 he was confirmed as Clerk in Grade III, by the Works Manager, Northern Railway Workshop, Jagadhri, respondent No. 2.

In 1956 the General Manager of the Northern Railway, respondent No. 1, asked the different Heads of the Northern Railway to send the names of the employees, who were suitable for appointment as Vigilance Inspectors. Accordingly in May 1956 the General Manager interviewed a number of such employees and selected 8 out of them, including the petitioner for these posts in Grade 260-350. The work of the petitioner as a Vigilance Inspector was considered satisfactory and no adverse report was given to him till May 1963. In March 1958 he was even granted a commendation certificate for the good work done by him. In May 1959 his name was approved for the post of Vigilance Inspector in the prescribed scale of Rs. 300-400. He was also given cash rewards and commendation certificates for the nice work done by him. He went on drawing his usual increments and on 1-7-1963 he reached the maximum of the scale.

Some time in 1963 an anonymous complaint challenging his integrity was made to the Superintendent Police, Special Police Establishment, Delhi. According to the petitioner, this complaint was the result of his having incurred the displeasure of certain persons against whom he had made reports of corruption etc. in the discharge of his duties. In pursuance of this anonymous complaint, according to the petitioner, he was asked to submit his statement of assets and liabilities, which he did in that very year. Later on 23-6-1964 he was charge-sheeted by respondent No. 3 and was informed that it was proposed to hold a departmental enquiry against him under Rules 1708 to 1715 of the Indian Railway Establishment Code Volume I. He was also supplied with the statement of allegations on which the charges were based.

According to the respondents, on the other hand, they had no knowledge about the petitioner's incurring the displeasure or hostility of anybody, but in a report received from the Superintendent Police, Special Police Establishment New Delhi, in April 1964, he was considered responsible for the charges mentioned in the charge-sheet. On 27-6-1964 he asked for the copies of certain documents for the purpose of submitting his explanation. On 30-7-1964 the impugned order was passed by respondent No. 3 reverting him to his parent Department and directing him to report to respondent No. 2 for further orders. In pursuance of this order, he was relieved on 5-8-1964.

Thereafter, he applied to the Assistant Personnel Officer, Workshop Jagadhri, for the sanction of two months' leave with effect from 14-8-1964. By an order dated 4-12-1964 respondent No. 2 posted the petitioner as a Head Clerk on a pay of Rs. 290/- in the authorised scale of Rs. 290/- 330 with effect from 5-12-1964. The present writ petition was filed on 19-12-1964 challening the impugned order of his reversion.

3. The argument of the learned counsel is that the petitioner had been reverted as a measure of punishment and since this order had been passed without complying with the provisions of Article 311 of the Constitution, the same was bad in law and deserved to be quashed.

4. It is common ground that the petitioner was not holding the post of Vigilance Inspector in a substantive capacity, but was there only in an officiating position. It is further agreed that no opportunity was given to him before the impugned order was passed. Both the parties state that the impugned order will be quashed only if it is held that the same had been passed as a measure of punishment otherwise not. So the sole question for decision in this case is whether the said order had been made as a measure of punishment. Dealing with the cases of Government employees, who were holding jobs in officiating or temporary capacity and were then reverted to their substantive posts and whether their reduction in rank amounted to punishment or not, the Supreme Court in Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36, observed as under--

'.......... . But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules the termination of his employment does not deprive him of any right and fan-not, therefore, by itself be a punishment.

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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 for 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 its 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.'

Now the point is whether the impugned order has been passed by way of punishment. In order to determine this matter, we have to see if this order visits the petitioner with any penal consequences. In other words, would this affect his future chances of promotion? Admittedly, an enquiry had started against the petitioner, who had also received a regular charge-sheet. During the pendency of this enquiry, he had been reverted to his parent Department by the impugned order.

No doubt, the impugned order on the face of it does not show that the petitioner was being reverted because of the charges having been levelled against him. It is also true that in the return filed by the State, it has been specifically mentioned that the reversion of the petitioner to his parent Department was not made as a measure of punishment, but in the interest of service and that his reversion had absolutely no connection with the departmental proceedings initiated against him.

But a matter of this kind, as pointed out by the Supreme Court in P. C. Wadhwa v. Union of India, AIR 1964 SC 423, has to be looked at from the point of view of substance rather than of form. In this authority it was: further observed that what was to be considered in a case of that nature was the effect of all the relevant factors present therein. If on a consideration of those factors, the conclusion was that the reduction was by way of punishment involving penal consequences to the officer, even though Government had a right to pass the order of reduction, the provisions of Article 311 of the Constitution were attracted and the officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him.

Applying this test to the facts of the instant case, one comes to an inescapable conclusion that the petitioner was reverted to his parent Department because of the anonymous complaint which resulted in the starting of a regular Department enquiry against him. His work throughout had been extremely satisfactory so much so that he had been given a number of commendation certificates and no adverse remarks had either been made against him or communicated to him. It is not the case of the Government that the reversion of the petitioner to his parent Department was either due to the fact that the Vigilance Department was going to be wound up or that the real incumbent of the post that he was holding had come back. But for this complaint and the enquiry, the impugned order would not have been passed against the petitioner. When the complaint was received against him, the Department could have without starting any enquiry and referring to this complaint reverted him to his parent Department. But when once they chose to commence a regular enquiry by serving a charge-sheet on him, they should have completed the same, and then taken action against him or else they could have suspended him during the pendency of the enquiry if they thought it proper to do so, a course suggested by the Supreme Court in P. C. Wadhwa's case AIR 1964 SC 423. After the starting of the enquiry, the passing of the impugned order obviously casts a stigma oil his character, which is bound to affect his future chances of promotion. The impugned order thus visits the petitioner with penal consequences and has, therefore, been passed by way of punishment. It was, consequently hit by Article 311 of the Constitution. While dealing with the case of a probationer, the Supreme Court in the State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689, observed thus--

'But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career, In such a case, he is entitled to the protection of Article 311(2) of the Constitution.' Later on, in the case of Madan Gopal v. State of Punjab, AIR 1963 SC 531, the Supreme Court was dealing with a temporary employee and after referring to the above mentioned observations in Gopi Kishore Prasad's case AIR 1960 SC 689, they held that it was true that in that decision the Supreme Court was dealing with the case of a public servant on probation, whereas in the matter before them the appellant was a temporary employee, but in principle it would make no difference whether the appellant was a probationer or a temporary employee. After making these observations, the Supreme Court held--

'Where the employment of a temporary Government servant, even though liable to be terminated by notice of one month without assigning any reason, is not so terminated, but instead the superior Officer chooses to hold an enquiry into his alleged misconduct, the termination of service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution. And, as the protection of Article 311(2) of the Constitution applies as much to a temporary public servant as to permanent public servants by virtue of Article 311 the Government servant is not liable to be dismissed or removed from service until he has been given reasonable opportunity against the action proposed to be taken in regard to him.'

5. Learned counsel for the respondents laid great stress on two decisions of this Court (1) Civil Writ No. 255-D of 1965, Jasbir Singh Bedi v. Union of India, decided by S.K. Kapur J. on 14-10-1965 (Punj), and (2) L. P. A. No. 345 of 1964, State of Punjab v. Ved Parkash Vohra decided by Dulat and R.P. Khosla JJ. on 16-7-1965 (Punj).

6. Both these cases are distinguishable on facts. In Jasbir Singh Bedi's case, no enquiry was started against the petitioner by the Department and he was simply reverted to his parent Department. Similarly in Ved Parkash Vohra's case L. P. A. No. 345 of 1964 dated 16-7-1965 (Punj), he was at first suspended because the police had arrested him in connection with a complaint to the effect that he had received Rs. 100 by way of illegal gratification and then later on during the pendency of these criminal proceedings his services were terminated: but the Department had not started any kind of enquiry against him.

7. In view of what I have said above, this writ petition succeeds and the impugned order is quashed, but with no orders as to costs.


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