# APPAR APAR SINGH v. THE STATE OF PUNJAB AND OTHERS

- **Citation:** [1971] 2 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 1970-12-03
- **Bench:** J. M. Shelat~ C. A. Vaidialingam, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appar-apar-singh-v-the-state-of-punjab-and-others-5146
- **Pages:** 18

## Headnote

Constitution of India-Article 311-Civil Service-Enquiry into allegation by principal against members of college-After enquiry principal
rev~rted to his substantive rank-If c.·rticle attracted.
A
B
The appellant, a member of the Punjab Education Service Class II c·
was promoted to Class I service on an officiating basis and thereafter
appointed Principal of the College.
K, a member of the College staff,
made. certain allegations against him at a public meeting.
An inquiry
was held to investigate into the allegations made by the appellant against
some members of the staff and the' allegations· made by K against the
appellant and also the conduct of K.
The evidence recorded at the
enquiry was not disclosed to the appellant nor was he allowed to cross·
ex~mine. any witnesses.
The finding at the enquiry was against the D
appellant, and K,
K was dismissed from service.
The appellant was
reverted to his substantive rank.
The appellant filed a petition under
Article 226 of the Constitution of India challenging his reversion. The.
Government defended the order on the grounds that the appellant was
only in an officiating post that no enquiry was held up on his conduct and
the enquiry was directed against K and only· to find out the suitability of
the. appellant's continuation as Principal, that no departmental enquiry as
E.
envisa~d by Article 311 (2) was made against the appellant before his
revera1on was ordered and therefore the ftndina recorded at the enquiry
may have operated only as a motive for the aovernment to pa11 the order
of reversion, and that the order under the circumltancod could not be
. , con•ldered to be by way of punishment,
HBLD : The order was one reducin~ the rank of appellant by way of
punishment, As it was passed in violatiOn of Article 311 ( 2) of the Con•
F'
stitutien the order n1ust be set aside.
Officiating and' temporary Government servant! are also entitled to
tpe protection of Art. 311 ( 2) in the ~arne _ manner as permanent Government servants, if the Government takes action against them by ·meeting
out one of the punishments, i.e., dismissal, removal or reduction in rank.
Notwithstanding the fact that the appellant was in P.E.S. Class I only
officiating, he was entitled to invoke Article 311 (2) if he was able to
G
· establish that the order of 'reversion was by way of punishment and that
it amounted to reducing him in rank. [903 G]
The enouiry was not conducted ':Vith a view to finding out the suita·
· bility or otherwise of the appellant to be continued as Principal. On the
other hand, the inquiry was held with a view to investigate into the
, allegations made by the Principal against some of the members of the
H
staff and the allegations made ~Y K against the ~ppel!ant.
The Government accepted the finding recorded at the enquiry as well
as the recommendation to impose punishment against the appellant and
A
B
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E
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G
H
APAR SINGH v. PUNJAB (Vaidia/ingam, J.)
891:
it was on . the basis of such accept_ance that the order of reversion was.
passed. No doubt, the order by itself and on the face of it was innocuous, bur, the 1jnding recorded at the enquiry against the appellant and its
recommendation to impose punishment upon the appellant were the vefry
foundation for the government passing the order reverting the appellant
from P.E.S. Class 1 to P.E.S. Class 11. [905 FJ
·
Parshotam Lal Dhingra v. Union of India, [1958} S.C.R. 828, Champaklal Cllimanlai Shah v, Union of India. [1964} 5 S.C.R. 190, State of
.Punjab v. Shri Sukh Raj Balwdur, [1968} 3 S.C.R. 234, State of Orissa
v. Ram Narain Das. [1961] 1 S.C.R. 606, Jagdisll Mitrer v, Union o/
India, AJ.R. 1964 S.C. 449 and State of Bihar v. Shiva Bhishuk Mishra,.
r1971} 2 S.C.R. 191, referred to.
Union of India v. R. S. Dlraba, 1969 3 Supreme Court Cases 603,
distinguished.
CIVIL APPLLATE JURISD1CTION : Civil Appeal No. 25 of
1967.
Appeal by special leave from the judgment and order dated
July 21, 1966 of the Punjab High Court in Letters Patent Appeal

## Text

_Characters 0–39,879 of 45,069. This is a partial read: ask again with offset=39879 for what follows._

890
APPAR APAR SINGH
v.
THE STATE OF PUNJAB AND OTHERS
December 3, 1970
[J. M. SHELAT~ C. A. VAIDIALINGAM AND P. JAGANMOHAN
REDDY, JJ.]
Constitution of India-Article 311-Civil Service-Enquiry into allegation by principal against members of college-After enquiry principal
rev~rted to his substantive rank-If c.·rticle attracted.
A
B
The appellant, a member of the Punjab Education Service Class II c·
was promoted to Class I service on an officiating basis and thereafter
appointed Principal of the College.
K, a member of the College staff,
made. certain allegations against him at a public meeting.
An inquiry
was held to investigate into the allegations made by the appellant against
some members of the staff and the' allegations· made by K against the
appellant and also the conduct of K.
The evidence recorded at the
enquiry was not disclosed to the appellant nor was he allowed to cross·
ex~mine. any witnesses.
The finding at the enquiry was against the D
appellant, and K,
K was dismissed from service.
The appellant was
reverted to his substantive rank.
The appellant filed a petition under
Article 226 of the Constitution of India challenging his reversion. The.
Government defended the order on the grounds that the appellant was
only in an officiating post that no enquiry was held up on his conduct and
the enquiry was directed against K and only· to find out the suitability of
the. appellant's continuation as Principal, that no departmental enquiry as
E.
envisa~d by Article 311 (2) was made against the appellant before his
revera1on was ordered and therefore the ftndina recorded at the enquiry
may have operated only as a motive for the aovernment to pa11 the order
of reversion, and that the order under the circumltancod could not be
. , con•ldered to be by way of punishment,
HBLD : The order was one reducin~ the rank of appellant by way of
punishment, As it was passed in violatiOn of Article 311 ( 2) of the Con•
F'
stitutien the order n1ust be set aside.
Officiating and' temporary Government servant! are also entitled to
tpe protection of Art. 311 ( 2) in the ~arne _ manner as permanent Government servants, if the Government takes action against them by ·meeting
out one of the punishments, i.e., dismissal, removal or reduction in rank.
Notwithstanding the fact that the appellant was in P.E.S. Class I only
officiating, he was entitled to invoke Article 311 (2) if he was able to
G
· establish that the order of 'reversion was by way of punishment and that
it amounted to reducing him in rank. [903 G]
The enouiry was not conducted ':Vith a view to finding out the suita·
· bility or otherwise of the appellant to be continued as Principal. On the
other hand, the inquiry was held with a view to investigate into the
, allegations made by the Principal against some of the members of the
H
staff and the allegations made ~Y K against the ~ppel!ant.
The Government accepted the finding recorded at the enquiry as well
as the recommendation to impose punishment against the appellant and
A
B
c
D
E
I'
G
H
APAR SINGH v. PUNJAB (Vaidia/ingam, J.)
891:
it was on . the basis of such accept_ance that the order of reversion was.
passed. No doubt, the order by itself and on the face of it was innocuous, bur, the 1jnding recorded at the enquiry against the appellant and its
recommendation to impose punishment upon the appellant were the vefry
foundation for the government passing the order reverting the appellant
from P.E.S. Class 1 to P.E.S. Class 11. [905 FJ
·
Parshotam Lal Dhingra v. Union of India, [1958} S.C.R. 828, Champaklal Cllimanlai Shah v, Union of India. [1964} 5 S.C.R. 190, State of
.Punjab v. Shri Sukh Raj Balwdur, [1968} 3 S.C.R. 234, State of Orissa
v. Ram Narain Das. [1961] 1 S.C.R. 606, Jagdisll Mitrer v, Union o/
India, AJ.R. 1964 S.C. 449 and State of Bihar v. Shiva Bhishuk Mishra,.
r1971} 2 S.C.R. 191, referred to.
Union of India v. R. S. Dlraba, 1969 3 Supreme Court Cases 603,
distinguished.
CIVIL APPLLATE JURISD1CTION : Civil Appeal No. 25 of
1967.
Appeal by special leave from the judgment and order dated
July 21, 1966 of the Punjab High Court in Letters Patent Appeal
No. 346 of 1965.
R. K. Garg, S. C. Agarwala and s. Chakravarty, for the appel·
I ant.
Harbans Singh, for the re.spondents.
The Judgment of the Court was delivered py
Valdi!Hnpm, J. The sole point that arises for consi·
deration in th1s appeal by special leave is whether the order
dated April 26, 1964 passed by the Oovemer of Punjab reverting
· the appellant from the Punjab Education Service Class I ( offl.·
~ting service) to the Punjab Education Service Class IT with
immediate effect, amounts to 'reduction in rank' attracting the-
. applicability of Art. 311 ( 2) of the Constitution.
The appellant when this order was passed was Principal,
Government College, Muktsar. and on reversion he was posted
as Deputy Inspector of Schools, Agriculture, Chandigarh. The
learned Single Judge, who heard Civil Writ No. 1506 of 1964
fi.Jed by the appellant to quash the said order, held by his judgment dated September 9, 1965 that the order amounts to 'reduction in rank' of the appellant and quashed the same. On appeal
by the State 0f Punjab and two other officers, the Division Bench
by its order dated July 21; 1966 in Letters Patent Appeal
No. 346 of 1965 set aside the order of the learned Single Judge
and heJd that the impunged order of reversion was not passed
by way of punishment and that on the other hand it was only
reversion of the appellant from his officiating post to his su~~
tantive r"lnk and that in consequence Art. 31 I (2) bas no applrcation.
892
SUPRBMB OOURr REPORTS
[1971] 2 S.C.R.
The circumstances leading up to the passing of the. impunged A
.order may oo stated : The appellant having obtained in 1943
a degree of the Punjab University in Agriculture joined the
.Education Department of the Punjab State on November 9, 1944
as teacher in agriculture. Later on he obtained degrees of B.T.,
M.Ed., and M.A.
He also got degree of basic education as· a
nominee of the Punjab Government and he was further nomiB
nated by the State Government in 1953 for higher studies in
:the United States. In August 1954, he was
sele~ted as a
Lecturer· in Agriculture by the Subordinate Services Selection
Board, Punjab and in 1955 he was selected for promotion to
.P .B.S. Class IT by the State Service Commission. In September
1960 he was promoted to P.E.S. Class I on an officiating basis c
and on May 9, 1 Q63 he was appointed Principal of the Government College, Muktsar.
It is seen from the
records that the appellant had some
·trouble with the members of the staff and in consequence reports
had been sent to his superiors who advised the appellant to act n
tactfully. The appellant was later on invited to meet the superior
offi~ers a~ Chandigarh and. he was appraised of the complaints
received about him, but his request to have the names of the
.complainants divulged to him and also to go through the cOmplaints said to have been received and to be furnished with the
copies of the same were all rejected by the authorities.
The E
appellant appears to have been advised to
proc~ on leave,
but he declined to accede to the request of the authorities. Later
on the appellant made a request to the second respondent, the
Director of Public Instruction, Punjab to come over to Chandigarh and visit the institution to enable him to have a personal
knowledge about the working of the college.
The second respondent accordingly presided over the annual prize distribution F
function in the College on February 26, 1964. When the appellant was reading the College's annual report in which certain
aspersions had been made as against some of the members of
the· teaching staff, Prof. S. C. Kapur (who was one of the professor in the College) interrupted the proceedings and remarked
"what about those principals who come drunk to the stage and G
do make up of the girls''. This incident led to some commotion
and one of the parents of the students demanded an inquiry
'into the allegations of misconduct made against the ap~llant
·by Professor Kapoor.
According to the appellant, the Director
·of Public Instruction, Mr. Sharma then and there assured the
appell~nt that an inquiry will be made promptly by two senior H
"(}fficers and action would be taken to punish the guilty persons
-whether they belong to Class I or Class II. But according to
·the second respondent no such assurance attributed to him was
A
B
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APAR. SINGH v. PUN.TAB (Vaidialingam, 1.)
893
made then. But there is Q.O controversy that an inquiry was demanded t..y some of the parents of the students and that the
second respondent promised to depute two senior officers for
that purpose. Accordingly the second respondent deputed two
Deputy Directors, namely, Sri Harbans Singh and Sri Govardhan
Lal to make an inquiry into the affairs of the College. The
points that required investigation were formulated by these two
Inquiry ·Officers as follows :
(J) Were the allegations levelled by the Principal
in his report true in respect to some members
of the Staff ?
(2) Was it proper for the Principal to say all this in
public meeting ?
(3) Were the allegations levelled by Shri S. C.
Kapur true?
( 4) Was it proper for Shri S. C. Kapur to say this
during the annual function presided over by the
D.P.I. and attended by Publicmen besides
-students and staff ?
(5) The effect of all, this on.the general public mind
particularly their reaction towards sending of
their daughters to the colleges.
E
( 6) The remedial measures to restore in the College
·a normal and healthy atmosphere conducive to
academic pursuits!.,
The said two officers made inquiries .in respect of these matters
from various persons including the 6ppellant. and arrived at the
r
following conclusions :
G
B
•( 1) The allegations levelled by the Principal against
the members of the staff in his report are not
borne out by facts.
(2) The Principal's remarks were highly offensive
and were quite misplaced in the annual report.
He· could have sent confidential reports against
his colleagues hut to criticise them in public
before -~~rents and the general body of students
was highly itiiproper and -was in very bad taste.
( 3) The allegations. levelled by Sri S. C. Kapur in
regard to the Principal having come to the stage
drunk and having done make-up of the girls
have been corroborated by the girls themselves
and by the members of the staff who were pre-
:894
SUPREME COURT REPORTS
[1971] 2 S,C.R.
sent on the stage except one whose reluctance
to say anything ·against the Principal can be
easily understood.
'
( 4) The conduct. of Shri S. C. Kapur was subversive of all discipline. It was most improper for '
him to have acted in such a rude manner. ·He
has shown himself in capable of any self-res- ·
traint and has set a bad example. It will not
be out of place to mention here that he was .
transferred from
G. C. Ludhiana as he had
fallen out with the Head of his
Department
there.
Such a pers0n cannot have a salutary
influence on the students."
A
B
c
·At this stage it may be mentioned that during the inquiry
•conducted ty the two Deputy Directors, the appellant appears
to have been very reluctant to give answers regarding some of
the points in the questionnaire as they were direeted against
his conduct though the questionnaire itself was headed "InvestiD
_gation into the· conduct of Shri Satish Kapur"
But nevertheless
he filed a very lengthy explanatory statement before the Inquiry
·Officers controverting the allegations made against him and giving
his own version regarding those p9ints. We shall refer later to
the. points raised in the questionnaire as also to the nature of
·the
answe~ given by the appellant. He has also
protested
against the inquiry being oonduoted behind his back without E
copies of the statementS being made available to him and without hh being furnished an opportunity of cross-examining those
·witnesses.
He has also
attributed bias
against the Inquiry
Officers.
In the report itsaif the Inquiry Officers had suggested
the following remedial measures :
"(a) Shri S. C. Kapur deserves examplary punishment and his services should ·be terminated in
terms of his conditions of service on giving him
one month's notice without assigning any rcason.
(b) It is further understood tnat D.P.I. "is separately
holding a secret probe into the conduct of the
Principal for allegations of uncalled for connections with a lady teacher with whom he . carried
on correspondence at personal lev~l in his own
hand-writting,
through the Manager of the
Punjabi Pu}?lishers, Ju11undur, in a most objectionable manner. The Principal therefore, also
needs. . some . E~amplacy Punishment with()ut
being called upon to · face a 'Regular DepartF
G
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F
G
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APAR SINGH Y. PUNJAB (Vaidia/ingom, J.)
895
(c)
(d)
(e)
ment Enquiry. It will not be desirable to conduct a formal Departmental
enquiry into his
conduct in regard to the probe which D.P.I.
is already having and paiticularly so in re~pect
of incident pertaining to the
make-up of the
girl students in a drunken condition ... Thus it
is clear that the Principal deserves to be given
some cxamplary punishment.
He is an unconfirmed h"nd and in con~ultation with the Legal
Remembrancer steps may be taken to .revert
this officer to P .E.S. Class II without assigning
any reason ... lmmediately, the Principal should
be transferred to an equivalent post at Headquarters to remove the impression in the minds
of the Lecturers or even the public that undesirable Lecturers were able to get the Principal
demoted.
Separate proceedings should be initiated against the Principal in the mean while
hnd final action taken later when the situation
has quietened out quite a bit so to avoid any
kind of unsavoury reactions both in the minds
of the public at Muktsar and the ~tudents of
the College as well as the teachers working in
that institution.
"
The learned Judges before whom records had been produced
have noted that as against the suggestion of the Deputy Directors
that &teps may be taken to revert the appellant to P .E.S. Class lJ
without assigning any reason, the Competent Authority had ma:le
the. following note in the margin : ''This case should be referred to the L.R. for advice''.
As against the suggestion about the transfer of the Principal
(appellant) to avoid the impression in tne minds Gf the lecturers
or even the public that undesirable lecturers were able h) get
the Principal demoted, the
Competent
Allthority has
again
noted : "Not yet. To be sorted out later". As against the suggestion of the Deputy Directors to terminate the services of Prof.
S. C. Kapur, the Authority had made the note : "Agreed". There
is no controversy that the services of Prof. Kapur we!'e terminaed on March 30, 1964 by giving him one month's notice. Shri
S. C. Kapur appears to have filed a writ petition No. C.W.764
of 1964 challenging the order terminating his services but the
896
SUPREME COURT REPORTS
[1971] 2 S.C.R.
said writ petition was dismissed by· the High Court on July 2.8,
A
1964.
"Order of the Governor of Punjab. Shri Appara
par Singh, P.E.S. Cla~s I (Officiating) Principal, Government College, Muktsar is reverted in P.E.S. Class II
B
with im~ediate effect and is posted as Deputy Inspector of Schools, Agriculture; Chandigarh vice Shri
Man Mohan Singh.
2.
Dated
Chandigarh the
28th April, 1964
Sd/- C. D. Kapur C
Education Commissioner & Secretary to
Government, Punjab, Education
Department.
No. 4788-Ed(l)~64/8284, dated Chandigarh the 28th April.
1964.
D
A copy is forwarded to the :-
1. Director of Public Instruction, Punjab, Chandigarh
for information and necessary action with reference to the communication noted in the !:.i&'gin.
The personal file of Shri Apparapar Singh is returned herewith.
Please acknowledge receipt.
2. Accountant General, Punjab
(GADVI) Simla
for information and necessary action.
3. Circle Education Officer, .Ambala., for information.
Sd/- Deputy Secretary
for Education Commissioner & Secretary
to Government, Punjal:>, Education
Department.
E
F
No. 4782-Ed(I)-64/8285-A, dated
Chandigarh the
28th
G
29,th April, 1964.
A copy is forwarded to Shri Apparapar Singh, Principal,
Govt.- College, Muktsar for information and necessary action.
Sd/- Deputy Secretary
for Education Commissionl!r & Secretary H
to Governmeh~, Punjab,· Education
Department."
APAR SINGH V. PUNJAB (Vaidialingam, J.)
897
A
The appellant filed the writ petition in the High Court
challenging this order as contravening Art. 311 (2) of the Constitution.
According to the appellant he has been "reduced in
rank" as a punishment without any inquiry and mala fide. The
appellant made a grievance that the evidence collected by the
Inquiry Officers were not made available to him nor was he given
B
any opportunity to participate in the inquiry and cross-examine
the witnesses.
Though his conduct was being ;inquired , into.
the evidence was collected behind his back and ·a finding had
been recorded against him on the basis of . such. materials of
which he had po opportunity either to scrutinise or controvert.
The appellant further alleg¢ that . though the order on 'the
C
face of it appears to be very innocuous having regard to the surrounding circumstances attendent on the passing of the order, it
is cle:.r that it was one by way Of punishment.
The State did. not dispute that the two Deputy Directors,
who held the inquiry did not give any opportunity to the appelD
laats is accepted it will be tantamount to holding that Digambethe accute. controversy between these 2 sects and their reluctance
ments were recorded from members of fue staff, students and
parents of the students of the College.
It was also admitted
that copies of the statements so recorded were not furnished to
the appellant and that he was also not allowed to cross-examine
any witness.
But the stand taken by the State was that it wa!'
E
totally unnecessary to ailow the appellant to participate in the
inquiry because it was not directed against him and that the in~
quiry was· only a preliminary confidential inquiry into the affairs
of the College. It was further averred on behalf of the State
that the appellant had no right to continue in P .E .. S. Class I
wben he was only officiating and that his reversion to P .B.S.
F
Class II, which was in the usual course, cannot be considered to
be a reduction in rank so as to attract Art. 311 ( 2) of the Co as~
titution.
G
H
The State has further averred that his seniority in the subs~
tantive post of P.E.S. Class II nor his emoluments, which he was
entitled to draw in that grade were affected by the ord~ of reversion.
In short ~e State contended that as no penal consequences flowed from the impunged order and as the appellant
had no right to the post of P.E.S. Class I, the order of reversion
does not amount to 'reduction in rank' so as to attract Art.
311(2).
The learned Single Judge has proceeded on the basis that
the question whether the impunged order amounts to a 'reduction in rank' so as to attract Art. 311 (2) is to be considered
1S-L694 Sup C I/71
898
SUPREME COURT REPORT~
[1971] 2 S.C.R.
not only by looking to the form of. the order but also the sur~ A
rounding circumstances attendent upon the passing of the order.
He further took the view that the order on the face of it appeared
to be innocuous. So he took into account the inquiry conducted
by the two Deputy Directors, the nature of the questions dealt
with by them, the allegations made against the appellant and
the· finding recorded in the said report together with tne recom~ H
mendation that some punishment must be
imposed upon the
a-ppellant.
The learned Single Judge did not accept the case of
the State that the inquiry was only regarding the working of the
institution. On the other hand, it was held that specific allegations were made against the
appellant and nndings recorded
against him and that it was on the basis of those findings that
t
action· was taken against Prof.
Kapur by way of terminating
his services by giving him one month's notice and against the
appellant by reverting him to P.E.S. Class II. As it was admitted
that the i1nquiry had been conduct~d behind the back of the appellant without giving an opportunity to him to
cross-examine
the witnesses, the learned Single Judge held that the inquiry proceedings were vitiated. Having regard to all the attendant cirD
cumstances, the learned Judge fin~lly held that the order of reduction was passed with the intention to inflict punishment on
the appellant in view of the finding recorded against him in the
inquiry by the two Deputy Directors. It was further held that
the innocuous form which the respondents gave to the impunged
order in consultation with the Legal Remembrancer was merely
E
a cloak to avoid the consequences of Att. 311 (2) and amounts
to a fraud on the constitutional guarantee given to civil servants.
In view of these findin_gs recorded in favour of the appellant, the
learned Single Judge dtd not consider the second ground of attack
levelled against the order that ihe· respondents were actuated by
malice, official bias and influenced by extraneous considerations
F
· in pa5sing the order of reversion. In the end the learned Single
Judge s~t aside the order of reverting the appellant to
P.E~S.
Class II.
The Letters Patent Bench before whom ·the State challenged
the order of the learned Siagle Judge has accepted the position
that froni trie file and the noting thereon, it is clear that the findG
ings recorded against the appellant in the report of the two
Deputy Directors as well as the remedies suggested by them in the
main were accepted by the Government after obtaining the advice
from the Legal Remembrancer.
The Division Bench has also
held that it was in consequence of the acceptance by the Government of the findings and suggestions contained in the report that H
the appellant was reverted toP .E.S. Class ll. The Division Bench
has taken the view that the reversion was ordered because the appellant was found unfit to hold the responsible post of Principal
A
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APAR SINGH v. PUNJAB (Vaidialingam, J.)
899
of the College. In view of the admitted fact that the appellant's
emuluments,
position and other
rights in P.E.S.
Class
II
were not affected by thy order of reversion, it cannot be h~d . in
this case that the impugned order is one, which can be construed
as 'reduction in rank' of the appellant attracting Art. 311(2). It
was further_ held that the reversion is not by way of punishment
but only because the person reverted was not found suitable to
hold the post.
Ultim~tely the Letters Patent Bench held that there
was no inquiry conducted against the appellant as contemplated
by the relevant rules and there were no charges of
~isconduct
levelled against the appellant which were being inquired into by
the Deputy Directors. The inquiry conducted by them Was only
to find out the actual state of affairs in the. nonnal fun.ctionln:s o. J
the College. No penalty has been imposed against the appellant
as- he was holding P.E.S. Class I _post only on an officiating b8si11
and it was open to the authorities to revert him to his substanti~
po~ .at any time. Such reversion, according to the Division Bench
in this case, does not amount to 'reduction in rank' so as to attract
Art. 311(2) . On this reasoning the Letters Paten~ Bench, held
that the impugned order of reversion was not one passed by way
of punishment and in
consequence set aside the order of the
learned Single Judge and dismissed the appellant's writ petition.
Mr. Garg, learned counsel for the appellant, has raised substantially the same contentions tha! were argued before the High
Court, both before the learned Single Judge and the Letters Patent
Bench. The counsel urged that though the impugned order on
the face of it appears to be very innocuous, it is really an order
imposing punishment on the appellant by way of reversion· in view
of the fact that the very basis of the order was the acceptance
by the Government . of the findings recorded against the appellant
in the enquiry conducted by the two Deputy Directors. If the
order is read in the context in which it has been passed, the irreSistible conclusion is that the Government intended to impose a penalty by reverting the appellant to P.E.S. Class II. In particuhrr
the counsel ~tresed that the findings recorded by the two Deputy
Directors that the allegations against the appellant that he had
come to the stage drunk 'and did the make up of the girls has been
corroborated by the girls themselves and members of the staff
whose statements had been recorded by them behind the back of
the appellant, are of a very. serious nature costing reflection against
the character and conduct of the appellant.
These findings were
accepted by the Government and the order of reversion passed in
consequence ca,n only be construed as an order imposing punishment.
To establish that the appellant has suffered penal consequences, Mr. Garg pointed ()ut; that while the appellant was reverted to P.E.S. Class II, his juniors in the said class were retained in
900.
SUPREME COURT REPORTS
[1971] 2 S.C.R.
P .E.S.
Class I and that in consequence it has resulted in the
appellant's losing his seniority even in P .B.S. Class II and the
chances of appellant's further promotion have become indefinite
and a very remote possibility.
Mr. Harbans Singh, leamed counsel for the State, on the other
band, urged that the order of reversion is one passed by the Government on the basis of the inquiry conducted into the affairs of the
College and as the Government felt that the appellant was not
suitable to be continued as PrincipaL
No achon for imposing
punishment on the appellant has been taken by the State.
~e
counsel pointed out that the very fact that no char&es were framed against the appellant and no inquiry conducted according to
the rules clearly show that no disciplinary action was intended to
be taken against the appellant.
He also pointed out that the
appellant was only officiating in P.E.S. Class I and his reversion
to P .B.S. Class II on the ground that he was found unsuitable to
be the Principal is not 'reduction in rank' so as to attract Art.
311(2). The counsel also pointed out that in the P.B.S. Class
II, his seniority and the emoluments to which he was entitled.
have not been affected and therefore no penal consequences have
resulted by the order of reversion.
After giving due consideration to the various aspects placed
before us by the learned counsel on both sides and the reasons
given by the Letters Patent Bench, we are of the opinibn that the
impugned order, in the circumstances, is one which amounts to
'reduction in rank' of the appellant to which. Art. 311 (2) is
attracted a:nd as admittedly no inquiry has ~r. held as contemplated by the relevent rules regarding disciplinary proceedings,
the. Judgment of the Division Bench will have to be set aside.
At the outset we may state that the learned Single Judge has
taken the view that by allowing the juniors of the appellant to
continue in P.E.S. Class I while reverting him to P.E.S. Class II,
it cannot be held that thereby the appelhmt's ·seniority has been
affected.
We are not inclined to agree with this view.
Loss of
seniority established by virtue of an order may amount under
certain circumstances to a penal consequence leading to an inference that tile order challenged is. one imposed by way of punishment.
In paragraph 28 of the Writ Petition the appellant ha5
clearly stated that .at the time of the passing of the impugned
order as many as nine persons were officiating in P.E.S. Class I in
schools and instruction cadre and amongst them the appellanfs
name appears at No.,_ 5 in the seniority list He has further
stated that there were four persons junior to him who were still
permitted to officiate in P.E.S. Class I.
In paragraph 28 of the
return filed by the State, the averments of the appellant, referred
tn Jbove, have been admitted.
The State. however, added that
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APAR SINGH V. PUNJAB (VaidiaJingam, J.)
901
the two officers who were senior to the appellant were still officiating in P .E.S. Class I. Therefore, '"it is clear from the admission of the State that on the date when the appellant was reverted
to P .B.S. Class II, some of his juniors in that class were allowed
to continue in P .E.S. Class I.
The appellant's grievance that the order indefinitely postponetany chances of promotion in future has been accepted by the
les.med Single Judge. In fact this grievance has beelll relied on
as evidencing that penal consequence has resulted from the order.
The Letters Patent Bench was also impressed by the circumstance
that an order reverting a person from the officiating post, unless
of course it is due to the coming back of the substantive incumbent or by reason of the post being abolished, does affect the
chances of a future promotion of the person reverted.
But the
Letters Patent Bench, as we have already pointed out, took the
view that the impugned order is not one by way of imposing any
punishment.
It may also be pointed out that both the learned
Single Judge as well as the Letters Patent Bench have held that
the findings recorded by the two Deputy Directors against the
appellant were accepted by the Government and that it was in
consequence of such acceptance of those findings that the appellant was reverted to P.E.S. Class II. Therefore the close conne6tion between the findings recorded in the report against the
appellant and the order of reversion has been found. established
in this case.
Therefore, the only question whether the findings
:so accepted by the Government operated only as a motive for
passing the order of reversion or whether the report against the
appellant was the very foundation for passing the impugned order.
The appellant admittedly was issued a questionnaire by the two
Deputy Directors to which his. answers' were invited.
Those
questions were as fo11ows :-
"Investigation into the conduct of
Shri
Satish
Kapur.
Q. 1 What did Shri Satish Kapur, Lecturer actually
do and say while the Annual report was being read
over by you on 26-2-1964?
Q. 2 Is there anv samblance of truth in what Shri
Kapur said about yo{l at that time ? In any case give
your comments on the remarks made by him and the
reasons as well as hackground which promoted him to
adopt this objectionable course ?
Q. 3 Were the remarks made by you in the annual
report. pertaining to the staff directed against any particular member of the staff of your college? · If so please
902
SUPREME COURT REPORTS
[1971 J 2 s.c.R.
give some instances t~ support your view and you may
as well quote the names of the persons who may be able
to substantiate or support these remarks to enable disciplinary action being taken
against the concerned
members of the staff.
Q. 4 Please state why it was necessary to include
these remarks against the staff in the annual report and
why •it was not considered proper to· mention al~ these
matters to the Director in a private meeting rather than
raising these issues in a meeting open to the parents of
the students and vario~s public men ?
Q. 5 What ·are your suggestions for winning the
confidence of the public in the institution which is a co·
educational college ?
There is also no dispute that the appellant filed a very le1_1gthy
reply to .these questions controverting very strenuously the allegations made against him.
Apart from furnishing an explanation
td the points raised in the questionnaire he has also given· his own
reasons as to why Shri Kapur in particular had a grievance against
him.
We do not think .it,;nec~ssary to elaborately refer to the
answers'. furnished· '?Y ·h~ilf~epting{Jto ~ay t,ba~ ~n respect of !he
very senous all~gation cove~,·\by }t}JeStiOn No. t_·i he h~s demed
that he ever drmks'and ·fias -ruso stated that the <allegation made
by Prof. .. KapQ(. a.gaiilsfhlffi Was absolutely false.
He has very
el~b()rately in his reply dealt with question No. 2.
.
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It is not possible to accept the large proposition advanced on
behalLof the :State that merely because the appellant was only
officiating in P.E.S. Class II, the State had power to revert him to
his substantive post of P.E.S. Class II and that such reversion
wlll not amount to reducing the appellant to a lower rank as by
.way of punishment.
As· to whether a particular .order of rever·
sion amounts to 'reduction in rank' by way of punishment cannor be decided merely on the basis of the terms of the order but
regard must be had to the attendent circumstances also.
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It is weii settled that officiating and te01porary Government
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servants are also entitled to the protection of Art. 311 (2) in the
same manner as permanent Government servants, if the qovernment takes action against them by meting out one of the punish-
. ments i.e. dismissal;'removal or reduction in rank. (Vide Parshotam Lal Dhingra v. r,Inion of India(!) and Chamvoklal Chimim· .'
Ia! Shah v. The Vnioh of India)(!). Notwithstanding the fact that
. the appellant was in P.E.S. Class I only officiating, he will be H
entitled to invoke Art. 311 (2) if ·he is able to establish that the
.
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(I) [1958] S.C.R. 828.
(2) [1964] 5 S.C.R. 190
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903
order of reversion is by way of punishment 'and that it amounts to
reducing him in rank. .
After a review of the case law on the subject, this Court tn
State of Punjab and .. an()ther v. Shri Sukh Raj Bahatiure) has
ennunciated the follo~g propositions which have,to be borne in
mind in considering the grievance of an officer regarding violation
of Art. · 3 I 1 ( 2) . Those . propositions are as follows :
·• ( 1 ) . fhe services of a. ~rary servant or a probationer can be terfuinated under the rules of his
employment . and' such termination without
anything more would 'not attract the operation
of Art. 311 of the Constitution.
(2) The circumstances preceding ·or attendent on
the order of termination of service have to be
examined in each case, the motive behind it
being immaterial.
( 3) If the order visits the public servant with any
evil consequences or casts an aspersion against
his character or integrity, it must be considered
to be one by way of punishment, no matter
whether he was a mere probationer or a temporary servant.
(d) An order of termination of service in unext:eptionable fortn preceded by ·8:11·-enqUii'y. launched
by the super :or authoriti~ onty· to ascertain
whether the public servant shoUld be retained in
service, does not attract the operation of Art.
311 of thotconstjtution.
(:;) lf thm 'be a full~scalo departmental enquiry
envisaged by ·Art. 311 i.e. an Enquiry Officer
is appeinted, a charge · sheet .submitted, explanation called for and considered, any order of
termination of service made . thereafter will
attract the operatio~ of ,the sai~ article."
In pariitular it Win be noted from the above propositions that
the circumstances preceding or attendent on ·the impugned ortlezhave to be .examined in each case, the motive behind it being
immaterial and if the order visits the public servant with any evil
consequenc~, it must be considered to be one by way of punishment whether he was a mere probationer or a temporary servant.
But it is alto clear that an order _pa~· after an enquiry is conducte-d to asc~rtain whether the ,public servant should be retained
in service or not, does ~ot attract Art .. 31 H.2} qf,the <;onstitution.
(3) [1968JJS.C.R. 234
.
. :~·~·:· ''<* '····· ·. ' '·.' :, .':'· ~· ..
904
SUPREME COURT REPORTS
[1971] 2 S.C.~
In State of Orissa v. Ram Nafain Das(l) this Court having A
regard to the particular circumstances attendent upon the enquiry
in that case held that 'the order discharging the officer therein,
who was a probationer, following upon an enquiry to ascertain
whether he should be confirmed or not, was not an order passed
by way of punishment.
Similarly. in Jagdish Mitter v.
The Vnion of lndia(Z) this
Court· held that even befor~ ~~barging a temporary servant the
superior authorities may have to determine the question about the
.suitability of the .said temporary servant being continued in service
a:nd if such an enquicy limited to the purpose pf deciding whether
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the said officer shpuld be continued or not, was held and on the
basis of his being found unsuitable to be continued ·in service, an
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order of discharge was passed, there is no element of punitive
proceeding in such an enquiry or in the order passed as a result
of such enquiry.
This Court further held that consideration of
the motive operating in the mind of the authority who passed the
order had , to be eliminated in determining th~ .character of the
.order of termination of services of a temporary servant. It was
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also held that the form .in which the order terminating his set"lices
was expressed would not also be decisive.
This Court has again in Champaklal Chima.nlal Shah v. The
Union of lndia( 8 ) held "· ...... what is important to see is what
actually happened after this memorandum for the courts are not E
to go by the particular name given by a party tt> a certain proceeding but are concerned with the spirit and substance of it in
the light of what preceded and succeeded it."
From a review of the decisions cited above, it is clear that in
order to find out whether an impugned orrler is one passed by way
of punishment, the form in which the order is expressed is not· F
decisive and the circumstances preceding or attcndent · on · the
order have to be examined in each -case. It is also clear that the
motive behind the passing of the order is of no . consequence.
Whether penal consequences flow from the order will have also
to be investigated. Having due regard· to the propositions ennunciated, we will now proceed to consider whether the impugned G
order can be considered to be on~ reducing the rank of the
appellant as by way of punishment. If the State is able · to
establish its plea· that the inquiry conducted by the two Deputy
Directors was only to find, out the suitability of the ·appellant to
be continued as Principal and that as he was found to;be unsuitable
he was reverted, then the order cannot be considered to be by way
of punishment.
We however find · ·considerable difficulty in II
(J) [1961) 1 S.C.R. 606.
(2) A.I.R. _1964 S.C. 449.
(3) [1964] 5 S.C.R. 190.
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905
accepting this plea of the State.
Fr~ the facts given by us in
setting out the circumstances leading to the filing of the writ petition, it is clear that the inquiry conducted by the two Deputy
Directors was not with a view to find out the suitability or otherwise of the appellant to be continued as Principal.
On the other
hand, the inquiry was held with a view to investigate into the
allegations made by the Princi~al against some of the members of
the staff and the allegations made by Prof. Kapur against the
appellant.
We have already referred to the questionnaire issued
to the appellant and also the points set for determination by tbe
Deputy Directors as also the findings recorded by them.
We
have already pointed out that one of the allegations which were
investigated by the Deputy Directors related to a very serious
matter, namely, the charge levelled by Prof. Kapur against the
Principal having come to the stage drunk and having done makeup of the girls.
We are not concerned with the validity Of the
inquiry conducted by the Deputy Directors because it is admitted
by the State that the said inquiry was conducted exparte and
bebind the back of the appellant. It has also been admitted that
the statements recorded by the Deputy Directors from various
persons were not disclosed to the appellant and the latter had also
no opportunity to cross-examine those witnesses.
But a.