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Bidhu Bhusan Majumdar Vs. Chief Engineer Government of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 344 of 1957
Judge
Reported inAIR1958Cal623,62CWN223,(1958)IILLJ58Cal
ActsConstitution of India - Article 311
AppellantBidhu Bhusan Majumdar
RespondentChief Engineer Government of West Bengal and ors.
Appellant AdvocateAnil Kumar Das Gupta and ;K.K. Maitra, Advs.
Respondent AdvocateN.C. Chakravarty and ;S.K. Rai Chaudhury, Advs.
Excerpt:
- .....sri bidhu bhusan ma-jumdar, officiating overseer. s.d.o. is reverted to his substantive post of overseer estimator with effect from the date of his joining this directorate- ......'2. it is against this order that this rule isdirected. mr. das gupta appearing on behalf of the petitioner has taken two points. the first point is that this order of reversion was passed by thewrong persons because the petitioner was appointed as s.d.o. by the deputy secretary and so the chief engineer had no right to revert him. the second point is that in any event the reversion order is by way of punishment and the procedure necessary in a departmental enquiry was not followed.3. with regard to the first point, i think that the point is one of substance. the petitioner hadbeen promoted to the.....
Judgment:
ORDER

D.N. Sinha, J.

1. The facts in this case are shortly as follows : The petitioner was appointed as an Overseer in the Subordinate Engineering Service in or about March 1931, under the Public Works Department, which is properly known as Works and Buildings Department. In March 1932 he was confirmed in the post. On 7-11-1950 he was appointed to act temporarily as S.D.O. of the Haringhata Sub-Division of the North Calcutta Division under the Presidency Circle. This appointment was made by the Deputy Secretary of the Government of West Bengal as appears from a copy of the order which is annexure 'A' to the petition. In January, 1956. in that same capacity he was transferred to the Development (Roads) Department and posted as an S.D.O. at the Krishnagr Sub-Division. In August, 1956, he received a letter from the Chief Engineer which is annexure E to the petition. In this letter,. which is a confidential D.O., various complaints have been made about the petitioner's commissions and omissions. It was inter alia, stated that he had picked up a quarrel with the Executive Engineer, disobeyed his orders and suddenly applied for leave in March 1956 when the work of the subdivision was going on in full swing. It appears that this leave expired in October, 1956 and the petitioner reported for duty at Krishnagar. In the letter he wrote reporting back for duty, lie described himself as S. D. O. Krishnagar Sub-Division. A copy of this letter is annexure 'G'. He was of course not allowed to join but this was not all. On 23-10-1956 the Superintendent Engineer. Road Construction Circle No. II. wrote a letter to the petitioner, a copy whereof is annexure 'J' to the petition. It was stated there that the authorities took exception to the petitioner's styling himself as S.D.O. Krishnagar and he was called upon to submit his explanation why drastic steps should not be taken against him for such conduct. On the same dayhowever the Chief Engineer passed the followingorder:

'On his return from deputation to the Development (Roads) Department, Sri Bidhu Bhusan Ma-jumdar, Officiating Overseer. S.D.O. is reverted to his substantive post of overseer Estimator with effect from the date of his joining this Directorate- ......'

2. It is against this order that this Rule isdirected. Mr. Das Gupta appearing on behalf of the petitioner has taken two points. The first point is that this order of reversion was passed by thewrong persons because the petitioner was appointed as S.D.O. by the Deputy Secretary and so the Chief Engineer had no right to revert him. The second point is that in any event the reversion order is by way of punishment and the procedure necessary in a departmental enquiry was not followed.

3. With regard to the first point, I think that the point is one of substance. The petitioner hadbeen promoted to the post of an S.D.O. although it was a temporary post. He was transferred to another department, or to be accurate, his services were lent on deputation to another department as a S.D.O. He was sent back as an 'Officiating Overseer S.D.O' Therefore when he came back to his original department, he would continue to be in the temporary post of S.D.O. until and unless he had been reverted by the proper authority to his substantive post as overseer. This has never been done. The Deputy Secretary of the Works and Buildings Department has never passed order reverting the petitioner to his substantive post of an overseer. What has happened is that the Chief Engineer has taken upon himself to revert the petitioner back to his substantive post and this be cannot do. The learned Government Pleader tries to explain the position in this way. He says that! as soon as the petitioner was transferred to another department on deputation, he lost his Hen on the temporary post of S.D.O. Therefore when that deputation ended, he automatically became an overseer in his original department, that is to say in hissubstantive post. In my opinion, this is a wrong way of looking at it and the facts did not happen in that way. The petitioner is not claiming his Hen on his temporary post, and there is no doubt that his substantive post is that of an overseer. What he says, and says correctly, is that he has been promoted to be a S.D.O. and continued to hold that position during the time that he was lent on deputation, and even Afterwards. The only way that position could have been changed or altered would be if the Deputy Secretary in the Works and Buildings Department reverted him to bis substantive post of an overseer. As a matter of fact and as is abundantly clear from the records nobody treated him as having become an overseer as soon as he was lent to the Development (Roads) Department. He was throughout treated as a S.D.O. and it was in that capacity that he was sent back to the original department. At no point of time, in my opinion, had he lost his status as S.D.O. and at no point of time had he reverted to bis substantivePost as overseer. Of course an order of reversion the Chief Engineer would be bad, nor can it be supported upon the assumption that the petitioner had automatically reverted back to his substantive post and that therefore it was academical to consider as to whether an order of reversion had been made or not and whether it was made by the proper authority or not. The result is that the petitioner still holds office as a S. D. O. until he is properly reverted to his substantive post by the Deputy Secretary or by some other person properly authorised in that behalf. The learned Government Plea-der further points out that in temporary posts, if services are lent to other departments, naturally the post is either filled up or has ceased to exist and it would be impossible to absorb a person so lent and released, in his original post. Nobody says that he must be so absorbed. But the correct way of doing it would be for the Deputy Secretary to revert him at once to his original substantive post. Until that is done, it is no use saying that the old post lias, ceased to exist or has been filled up. Incidentally I must say that most of the material facts in this case have found no place in the affidavit in opposition and there is no averment that the petitioner has ceased to hold his temporary post or any such post has ceased to exist or that somebody else has filled up the post.

4. A decision upon this point really makes it unnecessary to decide the second point but as it has been raised I will deal with it briefly.

5. It is now well established that an order of reversion to a substantive post, if made for inefficiency or in the usual course, is not a demotion. But if it is done by way of punishment, then it is demotion, and provisions of Article 311 of the Constitution will apply. Looking into the facts of this case it is quite obvious that the petitioner was being reverted by way of punishment. The word 'punishment' is mentioned even in the affidavit in opposition, paragraph 7, and that on the basis that the petitioner was reverted, he had been called upon to explain various charges. In my opinion, the conclusion is inescapable that what was done was done by way of punishment. Accordingly the petitioner ought to have been given a proper opportunity of showing cause. This does not mean however that now that the matter is going back, the show cause notice must be given, because as I have pointed out, the proper authority might revert him back for administrative exigencies, and if he does so, there could be no exceptions taken. Of course, if he does it still by way of punishment, he must follow the provisions of Article 311 of the Constitution.

6. The result is that tin's Rule is made absolute. The order of reversion of the petitioner mentioned in the petition is quashed and/or set aside and a writ in the nature of certiorari is issued to that effect. There will also be a writ in the nature of Mandamus directing the respondents not to give effect to it. There will be no order as to costs.


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