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Bharatendra Nath Bhattacharya Vs. Commissioner of Income-tax, West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 158 of 1956
Judge
Reported inAIR1958Cal559
ActsConstitution of India - Article 311(2)
AppellantBharatendra Nath Bhattacharya
RespondentCommissioner of Income-tax, West Bengal and anr.
Appellant AdvocateDebi Pal, Adv.
Respondent AdvocateBalailal Pal, Adv.
DispositionAppeal allowed
Cases ReferredParshotam Lal Dhingra v. Union of India
Excerpt:
- chakhavartti, c.j.1. the appellant, bharatendra nath bhattacharya, joined the income-tax department as an inspector on 6-8-1949 and while working in that capacity, was appointed to officiate as a temporary income-tax officer, class ii grade iii 'until further orders.' it appears that at the same time, several other persons were similarly appointed to officiate in posts of temporary income-tax officers of the class & grade concerned -- apparently posts newly created. the copy of the order of appointment forwarded to the appointees, including the appellant, contained the following warning:'if their output is not un to the required standard or if for any reason their work is found unsatisfactory, they are liable to be reverted.'2. the tenure of the appointment which the appellant got was.....
Judgment:

Chakhavartti, C.J.

1. The appellant, Bharatendra Nath Bhattacharya, joined the Income-tax Department as an Inspector on 6-8-1949 and while working in that capacity, was appointed to officiate as a temporary Income-tax Officer, Class II Grade III 'until further orders.' It appears that at the same time, several other persons were similarly appointed to officiate in posts of temporary Income-tax Officers of the Class & Grade concerned -- apparently posts newly created. The copy of the order of appointment forwarded to the appointees, including the appellant, contained the following warning:

'If their output is not un to the required standard or if for any reason their work is found unsatisfactory, they are liable to be reverted.'

2. The tenure of the appointment which the appellant got was thus a very precarious one. It was only to last until further orders and it was liable to be terminated, if he was not found fit to hold the post.

3. The appellant failed to qualify for a favourable opinion of his superior Officers. A number of adverse remarks against him were entered in the Character Roll for the year 1951-1952. One of these remarks considered the appellant's equipments from nine points of view and declared him to be poor in every respect; another commented unfavourably on his bearing as an Officer and the method he employed in the discharge of his duties, while a third referred to the meagreness of his collection figures and attributed the same to a lack of proper attention. The last referred to his disposals which were stated to have been 'much below the minimum standard prescribed.' This remark also mentioned a certain complaint against the appellant regarding the performance of Election duties, but except staring that the complaint was under investigation, it did not make any misconduct or inefficiency regarding the performance of those duties the subject-matter of any adverse comment.

4. The last of the adverse remarks I have just summarised bore the date of 30-6-1952. It appears that shortly thereafter, the appellant's conduct as an Election Officer came to be considered by the Commissioner of Income-tax. By an order passed by the Commissioner on 18-7-1952, the appellant was severely censured and a copy of the order was directed to be placed in his confidential Character Roll.

5. According to the usual practice, the appellant was supplied with a copy of the adverse remarks with a direction that he should endeavour to eradicate the defects which had been noticed in him. It was, however, added that if the appellant wished to offer any explanation concerning the adverse remarks, he could do so within a month and that if, on a consideration of his explanation, the Commissioner of Income-tax was satisfied that the adverse remarks needed modification, they would be suitably modified. In pursuance of the liberty given to him, the appelknt furnished an explanation in regard to each of the remarks, but it was not considered satisfactory. By an order passed on 16-4-1953, the Commissioner of Income-tax observed that there was a number ot allegations against the appellant which were under investigation and that the facts and circumstances, as they stood then, would not justify any modification of the adverse remarks.

6. About a week later, another order was passed by the Commissioner in the form of a letter to the appellant. It was dated 24-4-1953. By it the appellant was reminded that he had been appointed to officiate as an Income-tax Officer, Class II, Grade III, only until further orders. The letter went on to say that the Departmental promotion Committee had considered the appellant's case for further continuance as an Income-tax Officer in the light of the reports contained in his Confidential Character Roll and had found him unfit for further retention in view of the unsatisfactory nature of his work. The letter also recalled that the appellant had been apprised of the adverse remarks made against him and given an opportunity to submit his explanation, but no good cause had been found in the explanation submitted for modifying the adverse remarks. The letter ended by directing the appellant to show cause in writing by a certain date why he should not be reverted to the post of an Inspector.

7. The appellant showed cause by means of a lengthy representation. It was considered by the Commissioner of Income-tax who held that he found no justification for further retention of the appellant as an Income-tax Officer. The order passed by the Commissioner on 19-6-1953, stated that the appellant had been appointed an Income-tax Officer only in a temporary capacity and until further orders. His performance as an Income-tax Officer had been extremely unsatisfactory and there had been various adverse remarks in his Confidential Character Roll regarding his work which, upon a careful review in the light of the explanations furnished by him, had been found to be entirely justified. The Commissioner accordingly made an order reverting the appellant to the post of Inspector with effect from the date of the receipt of the order and directed that, on reversion, he would draw pay in the scale of Rs. 125-125-(Probation)-160-10-330.

8. The appellant appealed against the order of reversion successively to the Central Board of Revenue and the President. Both the appeals, however, failed.

9. Thereafter, the appellant made an application to this Court under Article 226 of the Constitution against the Commissioner of Income-tax, West Bengal, and the Union of India and asked for a writ of certiorari quashing the order of reversion and writs of mandamus and prohibition, directing the respondents to proceed according to law and forbear from giving effect to the order of reversion. Sinha, J., before whom the application was made, declined to issue a Rule and placed his reasons on record in a short order. The learned Judge held that the application did not lie, because the case was not one of reduction in rank, but one of reversion, and all that bad happened was that an Officer who had been officiating in a temporary post of a higher rank had been reverted to his substantive post oa the ground that his work in the officiating post had been found unsatisfactory. In such an order, the learned Judge observed, no punishment was involved.

10. Dissatisfied with the learned Judge's order, the appellant preferred the present appeal.

11. There can be no question that the learned Judge's order was in complete accordance with the view of Article 311(2) of the Constitution of India which had been previously taken in decisions, of this and other Courts. The appellant had been appointed only to officiate in a post of Income-tax Officer, Class II, Grade III, which was itself a temporary post. He bad even not been appointed to officiate indefinitely, but had been appointed to officiate only until further orders. There was again an express condition attached to his appointment that he would be liable to be reverted, if his output proved to be below the required standard or if his work was found unsatisfactory 'for any reason'. In essence, therefore, the appointment was not only an officiating appointment, but an appointment of a probationary character. If after he had officiated for some time, there had been opportunities for judging his work in the post in which he was officiating and such work had been judged and found unsatisfactory and if, on such a finding, the appellant had been reverted, he had obviously been sent back to his substantive post in accordance with the very terms under which he had been given the officiating appointment. It would thus appear that, looked at broadly, the order of the appellant's reversion only meant that the conditions of his offi- ciating appointment had been worked out, although with a result unfavourable to the appellant, but nothing had been done towards him by way of taking any disciplinary action or punitive measures which had resulted in depriving him of a right to an office to which he was otherwise entitled. If so, Article 311(2) would not apply to this case.

12. But it was contended on the appellant's behalf that since the decision of the learned trial Judge and the decisions on which he had relied, there had been a decision of the Supreme Court in the case of Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC (A), and that the law, as declared by that decision had substantially altered the position established by the previous case-law. We were, accordingly, pressed to allow the appeal and direct the issue of a Rule so that the appellant's case might be considered in the light of the Supreme Court's decision.

13. It is true that, in the case cited, the Supreme Court made an exhaustive pronouncement on the true scope and effect of Article 311(2) of the Constitution in its relation to the three major penalties mentioned therein. It held that in so far as the decisions of the several High Courts, cited at the Bar, had taken the view that where termination of service was brought about otherwise than by way of punishment and only in accordance with the terms of the contract or conditions of service Article 311(2) would not apply, they had been rightly decided. But the Court pointed out that such decision did not solve the entire problem, because it had yet to be ascertained and determined when an order for the termination of service was inflicted as and by way of punishment and when it was not. Although the learned Chief Justice used the word 'termination', I venture to think that he was not thinking of merely dismissal or removal from service, but also of reduction in rank, because reduction in rank involves termination of service in the higher post from which the Government servant concerned is reverted. The decision, therefore, must be carefully examined for guidance as to whether even a case of reversion may in a certain state of the facts be a case of reduction in rank within the meaning of Article 311(2) and if it can be such a case, in what circumstances it can be so.

14. The Supreme Court does not overrule the view that where the post, from which a Government servant had been removed, was not a post to which he had been permanently appointed or a post in regard to which he had acquired a quasi-permanent capacity or a temporary post for a fixed term of years, but was only a post to which the Government servant was appointed in an officiating capacity or as a probationer and the terms of the agreement or the conditions of service entitled Government to terminate the appointment in a particular manner which had been followed, no right to the post could be claimed and, normally, the termination of the service would not involve any penalty so as to attract Article 311(2).

'Thus', they observed, 'where a person is appointed to a permanent post in a Government service on probation, the termination of his serviceduring or at the end of the period of probationwill not ordinarily and by itself be a punishment,for the Government servant, so appointed, had noright to continue to hold such a post any more thanthe servant employed on probation by a privateemployer is entitled to do. * * * Likewise, if theservant is appointed to officiate in a permanentpost or to hold a temporary post other than onefor a fixed term, whether substantively or on probation or on an officiating basis, under the generallaw, the implied term of his employment is that hisservice may be terminated on reasonable notice andthe termination of the service of such a servantwill not per se amount to dismissal or removalfrom service.'This would be so, because the Government servant concerned had in such a case no right to thepost which was terminated and if he was removedfrom a post to which he had no right, such removal,involving no deprivation of anything to which hewas entitled, would not by itself be punishment.The Court, however, added that from the generalproposition laid down by it, it did not follow thatin no case could a termination of service in anofficiating post or in a probationary capacity or ina post liable to be terminated by a notice, amountto punishment. One test for determining whethertermination of the service of a Government servant had been by way of punishment was to seewhether, but for such termination, the Governmentservant concerned had a right to hold the post, butthat was only one of the tests. There might beother circumstances in a particular case whichshowed that although the service terminated was,service in an officiating or a probationary capacity or the rank from which the Government servant had been reverted was an officiating rank, such termination or reversion had not taken place in the normal course of working out the conditions of the appointment, but had been imposed by way of a penalty for some misconduct or deficiency, extraneous to those conditions.

15. Up to this, there is no difficulty and the Supreme Court appears to have declared only what baa previously been understood to be the law. It need hardly be pointed out that the fact that a particular appointment terminated is an officiating or a probationary appointment is by no means con-elusive as to whether the termination was punitive or merely a normal ending of the engagement. Suppose a person is appointed to officiate in a post of a higher rank in a leave vacancy, normally he would continue to officiate till the permanent incumbent returned and if on the return of the permanent incumbent, the person concerned was reverted to his substantive post, there would obviously be no punishment involved in such reversion. But it may be that while he is holding the officiating post, he is accused of some misconduct and upon a finding that misconduct has been proved, he is reverted to his substantive post, although the permanent incumbent has not yet returned. Such a case would be a clear case of disciplinary action by way of imposition of a penalty. Or suppose a person is appointed on probation for a year: normally the quality of his work would fall to be judged at the end of the year and if on his work being then found unsatisfactory, he is not confirmed and he is discharged altogether, if he is an outsider, or reverted to his substantive post, if he had been departmentally promoted on probation, there would again be no case of disciplinary action or imposition of a penalty. But if, before the year of probationary service has expired, the probationer is accused of having been guilty of some misconduct and on a finding that he has been guilty, he is immediately discharged or reverted, not on the ground of the poor quality of his work but on that ground, such discharge or reversion would clearly be a punishment. Cases of this kind present no difficulty. Difficult cases are those where, ostensibly and to external appearance, a termination of service Or reversion to the substantive post has been mack in accordance with the terms of the agreement or the conditions of service. Can it be that even some of such cases of termination of service or reversion be cases of punishment?

16. The Supreme Court answered this question in the affirmative. The bulk of its judgment is occupied with a discussion of dismissal and removal from service with which we are not concerned in the present case. The learned Chief Justice, after referring to a number of cases of different High Courts which, according to him, had been rightly decided, observed that those cases did not lay down or clearly indicate any test for ascertaining whether, in any particular case, a termination of service had been inflicted by way of penalty so as to amount to dismissal, removal or reduction in rank within the meaning of Article 311(2) or had been brought about by the exercise of the right to terminate it, arising out of the terms of employment agreed upon between the parties or contained in rules regulating the conditions of service subject to which the employment had been made. Proceeding then to lay down a test and dealing particularly with reduction in rank, his Lordship observed as follows:

'A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a 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 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 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.'

It will be noticed that in the sentence where the learned Chief Justice lays down the test, he uses two expressions, namely, 'entails' and 'provides'. If an order of reversion, besides directing that a Government servant will be reverted, further provides expressly for the forfeiture of his pay or allowances or for any of the other disadvantages or de-Erivations mentioned, those directions will clearly e additional directions and it is not difficult to see that the giving of such directions will amount to imposition of a penalty. The word 'entails', however, causey an apparent difficulty. If something entails something else, it means that the latter is necessitated by the former and follows as a necessary consequence from the thing itself. Taken literally, the use of the word 'entails' might suggest that even where the order made is a bare order of reversion, but the consequence of that order itself, without more, is to cause one or more or all the disadvantages mentioned, the order would be a penal order. I can hardly imagine that the learned Chief Justice could have intended any such meaning. When a Government servant is reverted from a higher rank, in which he had been officiating or serving in a temporary or probationary capacity, to his substantive post, there must in every case be a loss of pay. There would also be in most cases some prejudice as to promotion, because if the Government servant concerned had been serving in the officiating or temporary capacity for a substantially long time, many of his juniors in the cadre of his substantive post would probably have gone ahead in the meantime. If, therefore, the mere fact that the order of reversion will result in a loss of some-pay or some loss of opportunity for promotion, makes it an order by way of penalty, every order for reversion would be a penal order which, I venture to think the learned Chief Justice could not have intended to lay down. The key to the real meaning of his observation is, to my mind, furnished by the previous sentence. There he says that the real test is to find out if the order for the reduction 'also' visits the servant with any penal consequences. It thus appears that the penal consequences are contemplated as consequences with which the Government servant concerned is visited by the order in addition to his being reduced in rank or reverted. A bare order of reduction without anything else said about any other penal consequence would not, therefore, seem to satisfy the test, but what is required to satisfy it is some further direction, visiting the Government servant concerned with consequences of a penal nature. Thus, an order for reversion to the substantive rank may indicate, although such an instance would be rare, that the Government servant concerned would not be considered for promotion for a certain period or that, on his reversion, he would rank below those who had been appointed to a post in his substantive grade after him. In other words, if the order itself contains some additional directions, out of which, when carried out, some penal consequences are bound to ensure, it will be an order by way of punishment and where such additional directions are given, the order will 'entail' the penal consequences specified. I venture to think, with respect, that that is the sense in which the word 'entails' has been used by the learned Chief Justice, because to read his observations in the sense that even where the order is a bare order of reversion, it must be treated as an order by way of punishment, if it causes loss of salary or any other disadvantage, would mean in effect that every order of reversion would be an order by way of penalty.

17. I may also point out that in the sentence where the illustrations of penal consequences have been given, the learned Chief Justice speaks of not loss of pay and allowances, but of their forfeiture. Apparently, what is contemplated is a direction that the Government servant concerned will be debarred from drawing some pay or allowances to which he had already become entitled and not merely loss suffered from reduction of the scale of pay, caused by the reversion. The next consequence mentioned is loss of seniority in the substantive rank That also, it seems to me, will not follow from a bare order of reversion, but will follow only if a special direction in that behalf is given. The consequence last mentioned is stoppage or postponement of 'future chances of promotion.' It will be noticed that chances of promotion which the Government servant concerned may have lost by being elsewhere by reason of his officiating in a higher post are not contemplated, because, in the first place, during the period concerned he had not lost any chance of promotion, but had in fact been promoted to a higher post and, in the second place, what is spoken of is his 'future chances of promotion', that is to say, chances of promotion after the Government servant concerned has reverted. It is obvious that a bare order of reversion will exhaust itself by putting the person concerned back in his substantive post and there can be no question of his being denied any chances of promotion arising thereafter, unless a further and specific direction in that behalf is given. These several considerations lead me to think that the true meaning of the test laid down by the learned Chief Justice is that when the order for reversion is not a bare order, but adds further directions which involve penal consequences to the servant concerned, the order will be an order by way of punishment. If those penal consequences are expressly imposed, the order will be one providing for them. If they follow from the form in which the order is framed, such as that the order for reversion will subsist for a certain period in any event and during that period the Government servant concerned will not be considered for promotion, it will 'entail' those consequences. But when the order is a bare order of reversion and nothing more, consequences ensuring naturally from such an order, however adverse, will not satisfy the test of evil consequences and will not make the order a penal order.

18. That such is the true meaning of the test seems to me to appear both from an earlier passage in the judgment of the learned Chief Justice and his application of the test to the case men before the Court.

'But the Government may take the view,' he says earlier in the judgment, 'that a simple termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences.'

Something over and above a bare order of reversion or simple termination of service, adding punishment to the termination or reversion, is thus contemplated. That test was found to be not satisfied in the case of the Government servant instantly before the Court who had been simply reverted from his officiating post to his substantive post of a lower rank, although the reversion had taken place after about two years and although the authorities said that he would be considered for future promotion only if he made good the shortcomings noticed in him. Bose J., who dissented from the majority decision, also took the view that in order to be penal, an order for reversion or termination of service must impose some additional penalties. 'To my mind,' he observed, 'the test must always be whether evil consequences over and above those that would ensue from a 'contractual termination' are likely to follow.' It is true that in the later part of his judgment the learned Judge seems to go further, because he says: 'The real test is whether additional evil consequences are implicit in the order;' and again, 'The real test is, do they in fact ensue as a consequence of the order made?' Even in the more restricted view reflected in the last sentence, the consequences would ensue from the order itself, if it is framed in a manner I have indicated.

19. Applying the test laid down by the Supreme Court in the case cited before us, we have now to consider whether the appellant's application before the learned Judge raised a question which the respondents had to answer. In all material particulars, his case appears to be on all fours with the case decided by the Supreme Court. The Government servant in the Supreme Court case held a substantive post of a Chief Controller in a Railway and was appointed to officiate in the higher post of an Assistant Superintendent, Railway Telegraphs. The majority judgment does not state what the nature of that post was, but the minority judgment of Bose J., states that 'the higher post to which the appellant was appointed was temporary.' It would thus appear that like the appellant before us, the Government servant in the Supreme Court case also was appointed to officiate in a temporary post of a higher rank. In one sense, the appellant's position is weaker, because there does not seem to nave been any condition attached to the appointment of the Government servant in the Supreme Court case such as had been attached to the appellant's appointment. It does not appear from the report that it was a condition of the officiating appointment of Parshotam Lal that he would be liable to be reverted, if his work was found unsatisfactory for any reason. Be that as it may, as in the appellant's case, so in the case before the Supreme Court, there had been adverse remarks by superior Officers and representations against those remarks had equally failed in both cases. The order for reversion in the Supreme Court case was in the same bare form as in the case of the appellant. Both the Officers were simply reverted to their respective substantive ranks, but in the facts antecedent to the order of dismissal, there was one difference in that while the appellant was given an opportunity to show cause why he should not be reverted, no such opportunity appears to have been given to the Government servant in the Supreme Court case. In dismissing the Government servant's appeal, the Supreme Court pointed out that he had no right to continue in the post in, which he had been officiating and that under the general law it was an implied term of the appointment that it was terminable at any time on reasonable notice. In the present case, it was an express term that the appellant's officiating appointment would be terminable if his work was found unsatisfactory or his output found to be below the required standard. The Supreme Court held that in the case of the Government servant before them, there had been no forfeiture of any right by the reversion and the same observation must apply to the present case. It need hardly be said that there has been no dismissal or removal from service, as there had been none in the Supreme Court case. The Supreme Court also observed that in the case before them, it appeared from the orders passed by the General Manager that the reversion would not entail forfeiture of the Government servant's chances of future promotion or affect his seniority in the substantive post. There were two orders passed by the General Manager, in one of which he stated that the Government servant concerned should revert as a subordinate 'till he makes' good the shortcomings noticed in this chance of his as an officer.' By the other order the Government servant was merely appointed to a Class III appointment. It is interesting to note that while the learned Chief Justice found indications in the orders passed by the General Manager that no evil consequences by way of postponement of promotion or loss of seniority would follow from the order of reversion, Bose J., found in one of those very orders that evil consequences over & above those which would ensue normally from a mere contractual termination of the engagement would follow because the General Manager had said that the Government servant would revert as a subordinate and remain so till he made good the shortcomings noticed in him. It was suggested before us that what the learned Chief Justice had in mind were not the orders of the General Manager, but a further order of the Railway Board by which the Government servant concerned had been assured that the reversion would not be a bar to his being considered again for promotion in the future, if his work and conduct justified the same. I do not think that we shall be right in assuming that the learned Chief Justice intended to refer to the Railway Board when he mentioned the General Manager and I may add that the order of the Railway Board adds nothing to what the General Manager had said in his first order. It is true that, in the case before us, there is no specific assurance given by any one that the appellant's chances of promotion in the future would not be affected, but it appears to me that no such assurance was required. Withholding of promotion is one of the specific penalties mentioned in Rule 49 of the Civil Services (Classification, Control and Appeal) Rules. Since the appellant was merely reverted to his substantive post and no penalty by way of withholding his promotion was imposed on him, the order of reversion by itself could not possibly operate to stand in the way of his promotion in future, if he became otherwise entitled to it. As a matter of fact, we are informed, and subsequently it has been put in an affidavit, that the appellant was,' after his reversion, again appointed to officiate as an Income-tax Officer on 1956 far a year, that upon a review of his work in 1957, he had been considered fit for further retention and that he had in fact been retained.

20. It appears to me that although the general proposition laid down in the decision of the Supreme Court prescribes a test which will have to be considered hereafter in every case and although there may be some possibility of doubt as to what the test really means, the actual order passed by the Supreme Court with respect to the Government servant before them would show that, in the Supreme Court's view, an order like the order passed in the present case is not an order passed by way of punishment. Some difficulty is caused by certain observations of the learned Chief Justice contained in another part of his judgment. There, he says first that though misconduct or inefficiency or other disqualification may in a particular case be the motive which influences Government to take action under the terms of the contract of employment or specific service rules, still, if a right exists to terminate the employment under the contract or the service rules, the motive operating on the mind of Government will be irrelevant. But the learned Chief Justice says also that even if the Government has a right under the contract or the service rules to terminate the employment without going through the procedure prescribed for inflicting the punishments of dismissal, removal and 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, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. Since in both the above cases, the Government proceeds against the servant for the reason that he has been guilty of misconduct or betrayed some disqualification and since in both cases the Government merely terminates the employment, it is not clear when the misconduct or disqualification will be merely the motive for the action taken and when it will be its foundation. Perhaps the latter case will be one where the Government proceeds expressly on the ground of misconduct or disqualification or where it resorts to the procedure for punishment without following it correctly. Be that as it may, the test finally laid down by the Supreme Court is one based on the nature of the order and judged by that test, as applied to the case before them, the appellant in the present case would seem to be bound to fail. There is, however, one matter which, to my mind, causes some difficulty. In the adverse remarks entered in the Confidential Character Roll of the appellant, there are entered remarks not only about his work as an Income-tax Officer but also about his work as an Election Officer. It appears from the relevant orders that all the entries in the Confidential Character Roll were taken into consideration when the order for reversion was passed. If what was taken into consideration was not merely the appellant's efficiency or otherwise as an officer of the Income-tax Department, but also his misconduct as an Election Officer, a question may arise as to whether the order passed against him was not in truth and reality, at least in part, an order passed by way of punishment for that misconduct. It is true that the condition attached to his appointment to which I have already referred makes him liable to reversion, if his work is found unsatisfactory 'for any reason,' but whether such reason could be a reason extraneous to his work as an Income-tax Officer is at least a question. It was also contended that although the appellant had in fact been appointed an Income-tax Officer again in 1956. there might have been some earlier chances for such appointment which were denied to him because of his order of reversion. I do not think that it is open to the appellant to allege any such loss of chance now in this appeal, because he made no such allegation in his petition, and it may not be possible for him to make any such allegation to any purpose even in further proceedings on his application, because the question is one of fact which may prove to be a disputed question. Besides, if it is only the order of reversion to which we must pay regard, as in my reading of the Supreme Court decision we must, that order does not provide or even indicate that the appellant was to be refused consideration for promotion when a chance came to him in the normal way, because of the particular order passed against him. But whether or not, in view of the circumstances I have mentioned, the order was in part at least a penal order seems to me to require some further investigation. If an investigation is to take place, I would certainly not limit it to the one point I have mentioned, but would leave it open for any point which the learned Judge, before whom the investigation may take place, will consider relevant or reasonable in the light of the decision of the Supreme Court to which I have referred at some length. I think that the test laid down by the Supreme Court will be understood better if the nature of the proceeding in which the order was made is looked at rather than the consequences of the order & if the test is taken to be not whether the order involved punishment, but whether it was made by way of taking disciplinary action against the Government servant for reasons outside the conditions of his appointment. An exception must, however, be made in respect of cases and the order itself must be looked at for its consequences where the order goes beyond merely directing a reversion and adds other and further directions, providing for or entailing some punishment. The circumstance I have mentioned and also the structure of the last phase of the proceeding had against the appellant seem to be sufficient for holding that this was not a case to he thrown out at sight and that there was a matter to enquire into. The matter to investigate will be whether the case comes within the general principles laid down by the Supreme Court and bears the indicia of a penal order as indicated in the decision or whether it comes within the application of those principles by the Supreme Court itself in the case then before the Court. I know that the ground upon which I am proceeding is extremely a slender ground, but I think it is proper to give effect to even a slender ground when the Constitutional right of a citizen is concerned, particularly the Constitutional right of u Government servant who is in a position of a peculiar disadvantage. After all, we shall he only directing an investigation and the final outcome may yet be the same.

21. In the result, this appeal is allowed, the judgment and the order of Sinha, J., are set aside and we make the following order:-

Let a Rule issue on the respondents to show cause why respondent No. 1 should not certify to this Court the record of the proceedings in which the order for reversion, dated the 19th of Tune, 1953, was passed against the appellant and why the said order and also if necessary, the orders passed in appeals therefrom, should not be quashed, or such further or other order passed as may seem to the Court fit and proper. The Rule will be returnable in four weeks before the learned Judge taking applications under Article 226 of the Constitution.

22. The costs of this appeal will be costs in the Rule--the hearing-fee being assessed at five gold mohurs.

S.C. Lahiri, J.

23. I agree.


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