RAMASWAMI J.--This appeal is brought by special leave from
the judgment of the Punjab High Court dated May 28, 1965, in Letters Patent
Appeal NO. 192 of 1965.
The respondent joined the income-tax department as an
upper division clerk. He was confirmed as an upper division clerk with effect
from December 1, 1949. On October 25, 1951, he was promoted as inspector of
income-tax in an officiating capacity. On April 8, 1953, the respondent was
" promoted to officiate until, further orders as Income-tax Officer class
II, grade Ill." The order of the Commissioner of Income-tax dated April 8,
1953, is to the following effect :
" ORDER
Establishment-Gazetted class II servants--
Promotion, transfer and posting of.
Shri Ranjit Singh Dhaba, officiating inspector, special
survey circle. Amritsar, is promoted to officiate until further orders as
Income-tax Officer, class II, grade III, in the scale of Rs.
275-35-500-EB.30-800 and posted as Income-tax Officer, Special Survey Circle;
Patiala, with effect from the date he relieves S. Bahadur Singh since reverted.
He is also appointed to hold charge of special survey circle, Patiala II, in
addition to his own duties relieving G. R. Gurbar Singh since reverted.
He should relieve both S. Babadur Singh and S. Gurbar
Singh as soon as possible but not later than 14th April, 1953.
Sd. P. K. Sen Gupta,
Commissioner of Income-tax."
On May 22, 1964, the respondent was reverted from his
officiating position of Income-tax Officer, class II, as his work was not
considered satisfactory. The order of reversion reads as follows :
" ORDER
Establishment -- Gazetted class II Income-tax
Officer -- Reversion of.
Shri R. S. Dhaba, Officiating Income-tax Officer, class
II, at present employed as Income-tax Officer, E-Ward, Ludhiana, having been
found unsuitable after trial to hold the post of Income-tax Officer, class II,
is hereby reverted as officiating inspector, Income-tax, with immediate effect.
Sd. S. R. Mehta,
Commissioner of Income-tax."
The respondent thereupon moved the High Court for grant of
a writ to quash the order of reversion dated May 22, 1964. It was contended on
behalf of the respondent that the order of reversion was made by way of
punishment and the provisions of article 311 of the Constitution were attracted
and the procedure contemplated by that article should have been followed. The
single judge allowed the writ petition by his judgment dated May 12, 1965,
holding that the reversion of the respondent from the officiating position of
Income-tax Officer, class II, to a lower position of officiating Inspector of
Income-tax was tantamount to a reduction in rank and the respondent was entitled
to the safeguards provided in article 311 of the Constitution. The appellants
took the matter in appeal under the Letters Patent but the appeal was dismissed
on May 28, 1965.
It was contended by Mr. A. K. Sen on behalf of the
respondent that the order of reversion was made by way of punishment and the
provisions of article 311(2) of the Constitution were attracted. It was pointed
out that in his demi-official letter dated February 6, 1964, Mr. M.
Kasivisvanatha Pillai, the then Commissioner of Income-tax, said that the
respondent should be reverted because of the large number of complaints which
the department had received against the integrity of the respondent and the bad
reports received by him from his superiors. It was said that the Commissioner
was largely influenced by the complaints received against the respondent about
his honesty while coming to the conclusion that he was not suitable for the post
of Income-tax Officer. We are unable to accept the argument of Mr. Sen that the
order of reversion is punitive in character and that the procedure of article
311(2) of the Constitution is applicable to this case. In the order of
reversion, dated May 22, 1964, there is nothing to show that a stigma was
attached to the respondent. No reference is made to the imputation on the
integrity of the respondent and the only reason given is that the respondent was
found unsuitable to hold the post of Income- tax Officer, class II. It is well
established that a Government servant who is officiating in a post has no right
to hold it for all time and the Government servant who is given an officiating
post holds it on the implied term that he will have to be reverted if his work
was found unsuitable. In a case of this description a reversion on the ground of
unsuitability is an action in accordance with the terms on which the officiating
post is held and not a reduction in rank by way of punishment to which article
311 of the Constitution could be attracted. It is, of course, well-settled that
temporary Government servants are also entitled to the protection of article
311(2) of the Constitution in the same manner as permanent Government servants
if the Government takes action against them meting out one of the three
punishments, namely, dismissal, removal or reduction in rank (see Purshotam Lal
Dhingra v. Union of India). But this protection is only available where the
dismissal, removal or reduction in rank is sought to be inflicted by way of
punishment and not otherwise. As pointed out in Purshotam Lal Dhingra's case,
the two tests applicable in a matter of this description are : (1) whether the
Government servant has a right to the post or the rank, or (2) whether he has
been visited with evil consequences; and if either of the tests is satisfied, it
must be held that the Government servant had been punished. Further, even though
misconduct, negligence, inefficiency or other disqualification may be the motive
or the inducing factor which influences the Government to take action under the
express or implied terms of the contract of employment or under the statutory
rule, nevertheless, if a right exists, under the contract or the rules, to
terminate the service the motive operating on the mind of the Government is
wholly irrelevant. The test for attracting article 311(2) of the Constitution in
such a case is whether the misconduct or negligence is a mere motive for the
order of reversion or termination of service or whether it is the very
foundation of the order of termination of service of the temporary employee (See
the decision of this court in Champaklal Chimanlal Shah v. Union of India). In
time present case, however, the order of reversion does not contain any express
words of stigma attributed to the conduct of the respondent and, therefore, it
cannot be held that the order of reversion was made by way of punishment and the
provisions of article 311 of the Constitution are consequently attracted. This
view is supported by the decision of this court in State of Bombay v. F. A.
Abraham , in which the respondent who held the substantive post of Inspector of
Police and had been officiating as the Deputy Superintendent of Police was
reverted to his original rank of Inspector without being given any opportunity
of being heard in respect of the reversion. His request to furnish him with
reasons of his reversion was refused. Later, a departmental enquiry was held
behind his back in respect of certain allegations of misconduct made against him
in a confidential communication from the District Superintendent of Police to
the Deputy Inspector-General of Police but these allegations were not proved at
the enquiry. The Inspector-General of Police thereafter wrote to the Government
that the respondent's previous record was not satisfactory and that lie had been
promoted to officiate as Deputy Superintendent of Police in the expectation that
he would turn a new leaf but the complaint made in the confidential memorandum
was a clear proof that the respondent was habitually dishonest and did not
deserve promotion. As the order of reversion was maintained by the Government,
the respondent filed a suit challenging the order. The suit was decreed by the
court of first instance and the decree was affirmed by the High Court on appeal.
On further appeal to this court it was held that the reversion of the respondent
on the ground of unsuitablility was an action in accordance with the terms of
which the officiating post was being held and was not a reduction in rank by way
of punishment to which section 240 of the Government of India Act, 1935, would
be attracted. The appeal of the Government was allowed and the suit of the
respondent dismissed. A similar view was expressed by this court in I. N.
Saksena v. State of Madhya Pradesh and Jasbir Singh v. Union of India.
We are accordingly of opinion that in the present case the
High Court was in error in holding that the reversion of the respondent from the
position of officiating Income-tax Officer, class II, to a lower position as
inspector of income-tax was tantamount to a reduction in rank and that the
respondent was entitled to the safeguards provided in article 311 of the
Constitution.
For these reasons we hold that the judgment of the Punjab
High Court dated May 28, 1965, should be set aside and the writ petition filed
by the respondent should be ordered to be dismissed. We accordingly allow the
appeal. But there will be no order as to costs throughout.
Appeal allowed.
