N.S. Dass Bahl vs Union Of India
1991 Latest Caselaw 651 Del

JUDGMENT

S.N. Sapra, J.

(1) The present Second Appeal is directed against the concurrent findings, given by the impugned judgment dated February 16, 1981, of the learned Additional District Judge, thereby, affirming the judgment and decree dated October 27,1979 of the trial Court, by which, the appellant's suit for declaration was dismissed.

(2) The suit, out of which this appeal has arisen, was for declaration, to the effect, that the order dated January 20, 1961, of reversion of the appellant, from the post of Assistant Settlement Officer/Managing Officer, in the office of the Settlement Commissioner (Admn.), and Ex. Office Deputy Secretary to the Government of India, In the office of the Chief Settlement Commissioner, Ministry of Rehabilitation, Government of India, New Delhi, was in fact, his removal and/or in the alternative, reduction in rank, from service, under the Government of India, in the Ministry of Rehabilitation, and, as such, was illegal, arbitrary, ultravires, unconstitutional, discriminatory, malafide, inoperative and void ab initial and liable to be set aside, being against the principles of natural justice, and being a penalty, and that the appellant, still continued to hold the post of the Assistant Settlement Officer/Managing Officer, under the Ministry of Rehabilitation and was entitled to all the benefits, privileges and rights etc. attached to the post, including pay and allowances etc ; and that the 'Censure order' dated December 6,1961, and conveyed through the Punjab Government, was malafide, illegal, ultra-vires, arbitrary and against the principles of natural justice, being in violation of the provisions of the Constitution, and being a second penalty, for the same cause, and, in consequence more or less similar adverse entry, recorded by the then Chief Settlement Commissioner in the character roll of the appellant for the year ending 1960, pre-mature, prejudiced, biased and frivolous.

(3) Briefly stated, the case, as put up by the appellant (plaintiff) was that he was appointed, as Temporary Sub-Inspector, Rehabilitation Department, Punjab Government w.e.f. September 27, 1951. He was selected, as a temporary Inspector-cum-Assistant Collector Ii Grade, by Punjab Public Service Commission, and joined in that capacity, on February 13, 1952. It was a non-gazetted post. That the post of Assistant Settlement Officer, which was Central Service Class Ii Gazetted, was advertised on September 13, 1956, by Union Public Service Commission, in the scale of Rs. 275-25-3-revised to Rs. 350-25-575, vide advertisement Exhibit P.I. For that post, probation was for six months. The appellant, after interview, was selected for the above post, by the Union Public Service Commission and, joined as Managing Officer/Assistant Settlement Officer, under the Ministry of Rehabilitation, Government of India. That this post was independent one, and was not in direct line of promotion, from the post of Sub-Inspector/Inspector, under the Punjab Government. The probation period of six months was completed successfully, by the appellant.

(4) It was further alleged by the appellant that the then Deputy Minister of Rehabilitation, Govt. of India, became annoyed with him, regarding disposal of a case, relating to quarter No. J-37, Aliganj, Delhi, and at his instance, the then Minister of Rehabilitation, passed orders, vide note dated January 17, 1961, calling for appellant's explanation, regarding alleged delay, in disposal of that case. That on the basis of this note, the appellant was illegally reverted/removed from the post of Managing Officer/Assistant Settlement Officer (which was a Gazetted Class Ii post, under the Govt. of India) to the Punjab Govt. where he was posted, as temporary Inspector, Rehabilitation Department, which was a non-gazetted post and lower post, vide order dated January 20, 1961. The said order, in fact, amounted to his removal from service, under the Govt. of India, Ministry of Rehabilitation or reduction in rank, since there was no retrenchment, at that time, and the resultant vacancy was filled in by promotion soon after. It was also alleged that the order of punishment was passed by an authority not authorised to inflict the same. It was also alleged that the appellant was served with a charge sheet, by the Department on April 10, 1961, asking him to show cause, why disciplinary action be not taken against him, for alleged delay, in disposal of judicial case of quarter No. J-37. Aliganj, Delhi. Despite his satisfactory reply to the charge sheet, appellant was inflicted punishment of censure, vide order dated December 6, 1961, and tin adverse entry was, also recorded in his character roll for the year ending 1960, on the same cause, in complete disregard of Government of India instructions. The said adverse entry was conveyed to the appellant, only on June 30 1964, by the Punjab Government and, even his representation dated July 5, 1964, for expunction of these adverse remarks, was rejected, without giving him any opportunity of hearing. It was also alleged by appellant that he was deprived of chance of absorption, against the equivalent gazetted post, unlike his other colleagues.

(5) In the written statement, respondent stated, that though the appellant, was offered the post of Assistant Settlement Officer after selection, through the Union Public Service Commission, but, his terms of employment provided, that his services could be terminated, by giving one month notice, in case, he had no lien to any post. It was further alleged that the appellant was confirmed subsequently, to the post of sub inspector, under the Punjab Government, on June 25, i960, and thus, he continued to have a lien in the aforesaid post. It , further stated that the appellant, while working as Assistant Settlement Officer/Managing Officer, was censured on the ground, that he bad displayed negligence in the discharge of his duty and deliberately disobeyed the orders of his superiors. It was, however, denied that the services of the appellant, were terminated, as he did not obey the orders of the then Deputy Minister (Rehabilitation), in connection with the case of regularisation of quarter No. J-37, Aliganj, New Delhi. It was further alleged that as a result of retrenchment, the services of the appellant were placed at the disposal of the Punjab Government, where he was holding a lien. It was denied that the reversion of the appellant was a measure of punishment. But, in fact, the reversion was in the normal course of service, occasioned, because of foreseeable retrenchment in the grades of Assistant Settlement Officer/Managing Officcr.

(6) According to respondents, the suit was bad for non-joinder of necessary party, because State of Punjab was not imp leaded, and that Article 311 of the Constitution of India, had no application to the facts of the case. In the replication, the averments, made in the written statement, were denied by the appellant, and the averments and allegations, made in the plaint, were reiterated. It was asserted that retrenchment of certain officers, who were junior to the appellant, took place in July 1961, and even all these retrenched officers were recalled, in January, 1962.

(7) On the pleadings of the parties, the trial Court framed the following Issues:- 1. Whether the reversion of the plaintiff amounted to removal and/ or reduction in rank ? 2. If issue no. I is proved in favor of the plaintiff then, whether such removal and/or reduction in rank is illegal on the grounds, as alleged in the plaint ? 3. Whether the censure order dated 6,12.1961 is illegal as alleged 7 4. Whether the claims of plaintiff are justifiable ? 5. Whether the suit is bid for non joinder of necessary parties ? 6. Whether the suit is bad for multifariousness ? 7. Whether the suit has not been properly valued fur the purposes of Court fees and jurisdiction ? 102 8. Whether the suit in the present form is not maintainable 7 9. Whether a valid notice, under Section 80 Civil Procedure Code . was served upon the defendant ? 10. Whether a valid notice, under Section 80 Civil Procedure Code . was served upon the defendant ? 11. Relief.

(8) Subsequently, the following additional issues were also framed on 5th April, 1976: 11 Whether the amended written statement has been signed and verified by a duly authorised person on behalf of defendant. If not, so to what effect ? OPP. 12 Whether (he suit is within time ? Opd 13 Whether the plaintiff is estopped by his conduct and acquiescence from filing the suit against the Union of India in view of the plea raised in para 23 of the written statement 7 Opd 14 Whether this Court has no territorial jurisdiction to try the present suit 7 Opd

(9) Both the parties produced evidence.

(10) The suit of the appellant was dismissed, by the trial Court, and it was held that the appellant bad to right to the post of Assistant Settlement Officer and, his reversion did not amount to reduction in rank.

(11) Aggrieved by the judgment and decree of the learned trial Court, the appellant filed the Regular First Appeal No.R.C.A. 150 of 1979, which was, also dismissed, by the learned Additional District Judge, Delhi, vide his judgment and decree dated February 16, 1981. The learned First Appellate Court rejected the contention of the appellant that, the order of reduction/ termination, from the post of Assistant Settlement Officer, in fact, was founded on an alleged misconduct and, as such, the order was in violation of Article 311(2) of the Constitution of India. The learned Additional District Judge, held that the order of reversion, was simpliciter. and did not amount to reduction in rank nor it was a punishment. It was further held that the appellant was retrenched, as his services were no more required.

(12) According to the appellant, this finding was given by the learned Additional District Judge, without any discussion, though the Court noticed the fact that, an office memo was issued by the Government of India for the absorption of the surplus employees of the Ministry of Rehabilitation.

(13) While admitting the appeal, the following questions of law, were framed, for determination: "(i) Whether the Courts below erred in holding that the order dated 20th January, 1961, reverting the petitioner to his parent department in Punjab did not involve any stigma 7 (ii) Whether the said reversion amounted, in law, to a reduction in rank and was not made by the Competent Authority 7"

(14) The learned Counsel for the appellant urged the following contentions: 103 (a) The order dated January 20, 1961, thereby, reverting the appellant from the post of Managing 0fficer/ Assistant Settlement Officer, Government of India, Ministry of Rehabilitation, to the post of Inspector, Rehabilitation Deptt, under the Punjab Government, was although in form of reversion simpliciter, but, in fact, and in substance, involved stigma. In fact, the order was passed by way of penalty for alleged delay on the part of the appellant, to dispose of the case, in respect of quarter No. J-37, Aliganj, New Delhi and amounted to reduction in rank and/or removal from his service, under Government of India. (b) The impugned order was void, as the same was passed by the Deputy Secretary to the Govt. of India, who was not the appointing authority of the appellant. In fact, the appointing authority, under Ccs (CCA) Rules, 1957, in the case of the appellant, was Secretary to the Govt. of India. (e) The impugned order was void, because, the appellant was reverted from the post of Assistant Settlement Officer, even though, his junior colleagues were retained in service and the order was, therefore, hit by article 16 of the Constitution of India, as the appellant had been discriminated in the matter of service. (d) The appellant was entitled to a declaration that the impugned order of reversion was null and void and he was entitled to hold the post of Assistant Settlement Officer/Managing Officer from the date of reversion till the date of his superannuation, with back wages and other benefits, privileges attached to the post.

(15) In support of the first contention, the learned Counsel for the appellant, submitted that the impugned order dated January 20, 1961, though reversion simpliciter in form, was, in fact, founded on the alleged delay in regularisation of Quarter No. J-37, Aliganj, New Delhi. This was clearly borne out from the letter dated November 11,1963, which is Exhibit P-26. This letter was addressed to the appellant, by the Deputy Commissioner Ludhiana. In this letter, it was stated that the Deputy Secretary to the Government of Punjab, Rehabilitation Department, vide his memorandum dated October 22, 1963, had intimated, that, since the appellant had been reverted from the post of Assistant Settlement Officer by the Central Government, on account of serious delay, committed by him, in a case, in spite of clear orders, it was considered undesirable to forward his application to the Chief Settlement Commissioner, for reconsideration of his case and his re-appointment as Assistant Settlement Officer. Again, vide order dated December 6, 1961 (Exhibit P-27), the Deputy Secretary to the Government of Punjab, Rehabilitation Department, informed the appellant that he had been censured for the charge, that, while functioning, as Managing Officer in the office of Settlement Commissioner (GBP) Govt. of India, Ministry of Rehabilitation, during the period from May 6, 1960, to January, 1961, displayed negligence of duty and deliberate disobedience of the orders of his superior Officers in, as much as he delayed the disposal of a case relating to tenement No. J-37, Aliganj, New Delhi. Before passing the order of censure, the appellant was issued charge sheet dated April 10, 1961, (Exhibit P-4) for the alleged misconduct. The learned Counsel also referred to note dated January 17, 1961, of the then Minister of Rehabilitation, wherein, explanation of the appellant was called regarding alleged delay in 104 disposal of the case of house mentioned hereinabove. Respondent had claimed privilege regarding the production of the said note, and when the privilege was disallowed, by the trial Court vide order dated August 10, 1973, respondent filed an affidavit dated April 18, 1974, to the effect, that the said note was not traceable. Certain other documents on record, were also referred to by the learned Counsel, which I need not mention, as those documents are also on the same point.

(16) The Supreme Court had occasion to consider the question in a number of decisions, and, the law on the subject appears to have been settled. In Union of India & Others v. R.S. Dhaba 1969 S.L.R. 442, it was laid down that in the case of a temporary Government servant, the test for attracting Article 311(2) of the Constitution, was, whether, the misconduct or negligence was a mere "motive" for the order of reversion or whether, it was the very "foundation" of the order. In K.D. Phadnis v. State of Maharashtra , Constitution Bench of the Supreme Court observed that "though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaning, whether the order is a genuine one of "accident of service" in which a person sent from the substantive post to a temporary post, has to go back to the parent post, without an aspersion against his character or integrity, or whether the order amounts to a reduction in rank, by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment. Article 311(2) will be attracted. It may be relevant to reproduce the following observation on the Supreme Court in the case of State of Bihar & Others v. Shiv Bhikshuk Mishra : "It may be that an order which is innocuous on the face and does not contain any imputation or misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But, the entirety of circumstances preceding or attendant on impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order."

(17) The principles enunciated in Shiv Bhikshuk Mishra (supra), were reiterated by the Supreme Court in the case of State of U.P.v.Sughar Singh .

(18) The Supreme Court in a recent judgment jarnail Singh and Others v. State of Punjab and Others held, as under : When an allegation is made by the employee assailing the order of termination as one based on misconduct though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not."

(19) It is thus well settled that in dealing with the cases of removal from service, the Court is entitled to look into the attendant or antecedent circumstances to determine the true nature of the order, but a distinction has to be drawn, between cases, where misconduct is a mere 'motive' of the order, as distinct from the 'foundation' of it. 105

(20) Applying the aforesaid principles to the facts of the present case, it is evident that the impugned order of reversion dated January 20,1961, was in fact, founded on an alleged act of misconduct of the appellant, regarding regularisation of quarter No. J-37, Aliganj, New Delhi. This fact is fully established from three documents on record, namely, letter dated November 6, 1963 (Exhibit P-26), charge sheet dated April 10,1961 (Exhibit P-4) and censure order dated December 6, 1961 (Exhibit P-IU) mentioned hereinabove. In fact, in the letter dated November 6, 1963, the appellant himself was informed by the authorities that he had been reverted from the post of Assistant Settlement Officer by the Central Government, on account of serious delay, committed by him, in a case, despite clear orders. It is thus clear that the impugned order was made by way of punishment. Admittedly, no opportunity was given to the appellant, before passing the impugned order dated January 20, 1961. The order is, therefore, liable to be quashed on this ground alone,

(21) As noticed above, the appellant was selected for the post of Assistant Settlement Officer/Managing Officer, by the Union Public Service Commission, pursuant to an advertisement and this post was independent one, and was not in direct line of promotion, from the post of Sub-Inspector/Inspector under the Punjab Government. This fact is mentioned in the plaint and was not denied by the respondent in its written statement. The appellant, therefore, could not have been reverted to a post, lower than, the post of Assistant Settlement Officer/Managing Officer, but by the impugned order, the appellant was reverted to the post of Inspector under Punjab Govt. which was admittedly a lower post. The impugned order of reversion was void on this ground also. In this connection, reference may be made to a judgment of the Supreme Court in Hussain Sasansaheb Kaladgi v. State of Maharashtra . In this case, it was held that a direct recruit to a post, cannot be reverted to a lower post.

(22) The learned Counsel for the appellant submitted that the post of Managing Officer/Assistant Settlement Officer, which the appellant was holding at the relevant time. was a gazetted class Ii post, as is evident from Exhibit P-45. In terms of rule 11 read with the Schedule to the Ccs (CCA) Rules, 1957, the disciplinary authority/appointing Authority for such a post was Secretary to the Govt of India, but the impugned order of reversion dated January 20, 1961, (Exhibit Public Witness 2/32) was passed by the Deputy Secretary to the Govt. of India, who being an officer subordinate to the Secretary, was not competent to do so and, as such, the said order is liable to be quashed on this ground also. In support of his contention, the learned Counsel for appellant, referred to a Supreme Court Judgment reported as Krishan Kumar v. The Divisional Assistant Electrical Engineer, Central Railway & Others . The contention of the learned Counsel for the appellant appears to be well founded. Even, the charge sheet dated April 10, 1961 (Exhibit P-4) regarding alleged delay in disposal of case of property No. J-37, Aliganj, New Delhi, was issued to the appellant, under the signatures of Shri Dharam Vira, the then Secretary, to the Government of India.

(23) As regards the third contention, the learned Counsel for the appellant, submitted that the impugned order was hit by Article 16 of the Constitution of India in, as much as. the appellant was reverted from the post of Assistant Settlement Officer/Managing Officer, but his Junior colleagues were retained. In this connection, be drew my attention to paras 6, 9 and 11 (a) of the written statement. In the written statement it was contended on 106 behalf of the respondent, that the appellant was reverted to the Punjab Government, as a result of foreseeable retrenchment in grades of Assistant Settlement Officer/Managing Officer. It was further stated that meanwhile the other Assistant Settlement Officer/Managing Officers Senior, as well as. Junior to the appellant, were served with the termination notices. But the allegation, made in para 6 of the plaint that the resultant vacancy after the retrenchment of the appellant, was filled in by promotion soon after, was not controverter. Further my attention was drawn to the statement of Shri R. Dass, Assistant Settlement Officer (Admn.) Department of Rehabilitation, who appeared as DW1, on behalf of the respondent. In his cross-examination this witness clearly stated that "no other person was retrenched at the time when the plaintiff was reverted to his parent office". This witness also stated that the appellant was at serial no. 91 in the seniority list of 97, Assistant Settlement Officer, whereas officers juniors to the appellant, were retained. These circumstances only corroborate what the learned Counsel for the appellant submitted that the foundation of the impugned order of reversion is the alleged delay in regularisation of quarlerNo.J-37,Aliganj,NewDelhi,for which the charge sheet was issued subsequent to the passing of the said order. I have no doubt that the order of reversion was passed by way of punishment and, as such, is liable to be quashed. On this point, I am supported by a judgment of the Supreme Court in the case of State of Uttar Pradesh v. Sughar Singh (supra).

(24) Mr. Jugdev Singh, learned Counsel for respondent, however, contended that the order of reversion was a simply innocuous order, which did not involve any stigma on the appellant. He further submitted that in terms of the letter of appointment, the appointment of the appellant was purely temporary one and his services could be terminated after giving one month notice, without assigning any reason. He also submitted that motive behind the reversion of the appellant was not relevant, in view of the fact, that many other officers along with the appellant, were also retrenched. In support of his contentions, the learned Counsel placed reliance upon the judgment of the Supreme Court in the case of Union of India v. Agya Ram, .

(25) The submission made on behalf of the respondents however, are not borne out from the facts on record. As noticed above, the respondent own witness Shri R. Dass, Dwi, admitted in his statement that the appellant was at serial no. 91 out of 97, in seniority list of Assistant Settlement Officers and no other person was retrenched at the time, when the plaintiff was reverted to his parent office. Further, the case of Union of India v. Agya Ram (supra) is not relevant to the facts of the present case, in as much as, no allegation was made by the employee in that case that his reversion to the parent department, was founded on an alleged act of misconduct.

(26) In these circumstances, the appeal must be all owed.

(27) The inevitable result of the invalidation of the impugned order of reversion is that the plaintiff/appellant comes back into service and, therefore, the salary due to him, from the time of his reversion, till the date of his superannuation, will have to be paid. But, as stated in para 6 of the written statement read with para 6 of the replication, the appellant, after passing of the impugned order of his reversion to a lower post, under the Government of Punjab, proceeded on leave, and his leave up to August 10, 1961, was duly sanctioned, by the Central Government. According to the appellant, thereafter unwillingly he had to join the lower post under the Government of 107 Punjab on August 11,1961, but he resigned from this post and was relieved on August 18, 1965, after his representations to the Central Government were rejected. Thereafter, the appellant joined the legal profession, and has been practicising, as an advocate. In view of these facts, the appellant will be entitled to difference between the salary, he would have got as Assistant Settlement Officer/Managing Officer and the salary, he had received, as Inspector/sub inspector under the Government of Punjab, from August 11, 1961 to August 18, 1965. From August 19, 1965, till the date of his superannuation, the appellant will be entitled to the salary, which he would have got, if he had remained in the service under the Central Government, as Assistant Settlement 0fficer/ Managing Officer, with all the benefits including that of increment etc. attached to the said post. While granting this relief. I have relied on a judgment of Division Bench of this Court, in the case of Union of India v .Shri KewalKrishan Mittal . This case also pertains to wrongful dismissal of an officer of the same department, that is, Rehabilitation Department, Government of India, and after his dismissal from service he also joined the legal profession and practiced, as an Advocate. After noticing the fact that Shri Mittal joined the legal profession, after his dismissal, the Division Bench held that he was entitled to arrears of pay. Relevant portion from this judgment Is reproduced herein below: "Defects Mr. Mittal had been thrown out of employment Demure he continued to remain in the service of the government throughout. To reconcile this reality with an assumed state of affairs is the main question in this litigation. Payment of salary to the dismissed employee is the only way to do justice to him. On this aspect our conclusion is that Mr. Mittal was engaged in the profession of law and was not in "full salaried" employment of any one as contemplated by rule 51. Nor in service as contemplated by fundamental rule 54".

(28) In view of the discussions and findings given above, the appeal Is allowed with costs throughout, and the decree of appellate, as well as, the trial Courts, are hereby set aside and plaintiff/appellant's suit is decreed.

(29) The appellant will be entitled to difference between the salary, he would have got as Assistant Settlement Officer/Managing Officer and the salary, he had received, as Inspector/Sub-Inspector, under the Punjab Government from August 11,1961 to August 18, 1965. From August 19. 1965, till date of superannuation, the appellant will be entitled to the salary, which he would have got, if he had remained in service under the Central Government, as Assistant Settlement Officer/Managing Officer, with all the benefits, including that of increments etc., attached to the said post. Appeal allowed. 109 requisition. The respondent, however, later on moved Punjab & Haryana High Court and obtained an ex-parte order for the stay of entire proceedings under Sections 8, 27, 39 and 40 of the Fera despite having given an undertaking in this Court that he will join investigation as and when required Annexure 2 is a copy the of order dated 7.6.91 in Cr. M. 722B-M of 1991 passed byJ.S.Sekhon,J.ofthe Punjab & Haryana High Court. The petition er is thus unable to send any written requisition to the respondent for joining investigation because in that case it will be treated as a contempt of the order passed by the Punjab & Haryana High Court. Therefore, the petitioner seeks withdrawal of the order dated 12.12.90 granting bail to the respondent.

(3) In reply, the allegations in the petition are controverter. The main defense is that the jurisdiction under Section 439 Cr. P.C. should be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law. It was, however, admitted that the respondent had obtained the stay of entire proceedings under Sections 8, 27, 39 and 40 of the FERA. But the invoking of the jurisdiction is alleged to be not mala fide and recourse to proceedings before the Punjab & Haryana High Court is alleged to be completely an independent and substantive proceedings.

(4) I have heard arguments advanced by learned Counsel for the parties on the preliminary objection whether the respondent is entitled to remain on bail pursuant to the order dated 12.12.90 of this Court in this peculiar situation. I am clearly of the view that after having given an undertaking in this Court that the respondent will join investigation as and when required by the Directorate, the respondent has completely fettered the hands of the Directorate in even issuing a requisition for his appearance for purposes of investigation because in that situation the Directorate may be guilty of violating the orders of the Punjab & Haryana High Court. Thus, I am of the view that the bail order dated 12.12.90 in favor of the respondent passed by this Court should not be continued and if the respondent so desires or feels that even after the stay of the proceedings by the Punjab & Haryana High Court, he is likely to be arrested, he should approach that High Court. This Court is not obliged to continue the operation of an order the effect of which has been nullified by the act of the respondent. The preliminary objection, therefore, raised on behalf of the petitioner is sustained and the aforesaid order of bail is hereby cancelled.