# PHADNIS v. MAHARASHTRA (Ray, J,)

- **Citation:** [1971] Supp. 1 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 1971-03-19
- **Bench:** S. M. Sikri, J. M. Shelat, C. A. Vaidialingam, A. N. Grover, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/phadnis-v-maharashtra-ray-j-5500
- **Pages:** 7

## Headnote

Civil Servant-Holding temporary post-Reversion to substantive post
-When amounts to punishment and violation of Art. 311, Constitution.
Tho appellant was repatriated from the temporay post of Controller
of Food Grains Department to his parent department of Excise and Pro·
hibition. His record of service showed that he was chosen to go on depu·
talion twice in 1942 and in 1957 and that he was chosen for his experi·
ence. The. record also showed that he was promoted from time to time.
While holding the post of Controller, the Director of Civil Supplies asked
him about certain charges of receiving money and gifts at the time of the
marriage of his daughter and that he forced bis peons to do menial work
at the marriage. The Secretary to the Government virtually threatened to
repatriate him to bis parent .department, and the Minister visited the office
of the appellant and said there were complaints against him. The appellant
asked for an inquiry and the police conducted an inquiry. The investigation indicated that the appellant was totally free from blame or taint. At
the time of the passing of thQ-- order of reversion the appellant protested
and asked the Government to wait for the completion of the investigation
but the Government did not accede to the request.
On the question whether there was violation of the provisions in Art.
311 of the Constitution,
HELD: The facts and circumstances bring out in bold relief that the
order of reversion was in the nature of punishment and was passed without
complying with the provisions of the Constitution. [123H]
The post which the appq_lant was holding was a temporary one. but
the appellant was reverted neither because the temporary post was abolished nor because he was unsuitable to continue nor because the parent department of the appellant wanted him back. A Government servant holding a
temporary post and having a lien on his substantive post may be sent back
to the substantive post in ordinary routine administration or becaul:! of
exigencies of service.
Such a person may have been drawing a salary
higher than that of his substantive post but when he is reverted to the
parent department the loss of salary cannot be said to have any penal
consequences. The matter bas to be viewed as one of substance and all
relevant factors have to be considered in ascertaining 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 any aspersion against his character or integrity, or whether the
order amounts to a reduction in rank by way of punishment. [123C-G]
Parshotam Lal Dhingra v. Union of India [1958] S.C.R. 828; Sukhban1
Singh v. State of Pun;ab, [1963] 1 S.C.R. 416 and Aypar A.par Singh v. '.TM
State of Puniab, C.A. No. 25/67 dt. 3·12-1970, followed.
PHADNIS V. MAHARASHTRA (Ray, J,)
119

## Text

118
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JL B. PBADNIS
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STATE OF MAHARASHTRA
March 19, 1971
[S. M. SIKRI, C. ]., J. M. SHELAT, C. A. VAIDIALINGAM,
A. N. GROVER, AND A. N. RAY, JJ.]
Civil Servant-Holding temporary post-Reversion to substantive post
-When amounts to punishment and violation of Art. 311, Constitution.
Tho appellant was repatriated from the temporay post of Controller
of Food Grains Department to his parent department of Excise and Pro·
hibition. His record of service showed that he was chosen to go on depu·
talion twice in 1942 and in 1957 and that he was chosen for his experi·
ence. The. record also showed that he was promoted from time to time.
While holding the post of Controller, the Director of Civil Supplies asked
him about certain charges of receiving money and gifts at the time of the
marriage of his daughter and that he forced bis peons to do menial work
at the marriage. The Secretary to the Government virtually threatened to
repatriate him to bis parent .department, and the Minister visited the office
of the appellant and said there were complaints against him. The appellant
asked for an inquiry and the police conducted an inquiry. The investigation indicated that the appellant was totally free from blame or taint. At
the time of the passing of thQ-- order of reversion the appellant protested
and asked the Government to wait for the completion of the investigation
but the Government did not accede to the request.
On the question whether there was violation of the provisions in Art.
311 of the Constitution,
HELD: The facts and circumstances bring out in bold relief that the
order of reversion was in the nature of punishment and was passed without
complying with the provisions of the Constitution. [123H]
The post which the appq_lant was holding was a temporary one. but
the appellant was reverted neither because the temporary post was abolished nor because he was unsuitable to continue nor because the parent department of the appellant wanted him back. A Government servant holding a
temporary post and having a lien on his substantive post may be sent back
to the substantive post in ordinary routine administration or becaul:! of
exigencies of service.
Such a person may have been drawing a salary
higher than that of his substantive post but when he is reverted to the
parent department the loss of salary cannot be said to have any penal
consequences. The matter bas to be viewed as one of substance and all
relevant factors have to be considered in ascertaining 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 any aspersion against his character or integrity, or whether the
order amounts to a reduction in rank by way of punishment. [123C-G]
Parshotam Lal Dhingra v. Union of India [1958] S.C.R. 828; Sukhban1
Singh v. State of Pun;ab, [1963] 1 S.C.R. 416 and Aypar A.par Singh v. '.TM
State of Puniab, C.A. No. 25/67 dt. 3·12-1970, followed.
PHADNIS V. MAHARASHTRA (Ray, J,)
119
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of
A
1967.
Appeal from the Judgment and order dated June 30, 1966,
July 4, 1966 and. July 5, 1966 of the Bombay High Court in
Appeal No. 111 of 1963.
R. K. Garg, S. C. Agarwala, D. P. Singh, V. J. Francis and
B
R. K. Jain, for the Appellant.
V. S. Desai and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Ray, J.-This is an appeaJ by special leave from the judgment dated 30 June, 1966 and 4 and 5 July, 1966 of the High
Court at Bombay reversing the judgment of the learned Single
Judge dated 29 October, 1963.
The only question in this appeal is whether the order of the
Government of Bombay dated 8 May, 1962 "repatriating" the
appellant from the temporary post of Controller of Foodgrains
Depa·rtment, Bombay to his parent Department of Excise and
Prohibition amounted to a reduction in rank in violation of the
provisions contained in Article 311 of the Constitution.
The appellant joined service as Sub-Inspector of Excise in
the Excise and Prohibition Department of the Government of
Bombay in the year 1938.
He was thereafter selected for transfer to the Bombay City Police Department.
In 1942 he was sent
on "deputation" to the Civil Supplies Department as an Inspector.
He continued to work in that department up to the month of
February, 1955.
By February, 1955 he had by various promotions become Rationing Officer which was a gazetted post and
he was then drawing a salary of Rs. 530 p. m. in the grade of
Rs. 350-20-550.
fo 1955 there was decontrol of foodgrains. The
post was abolished.
The appellant was reverted to the ExciSe
Department.
In course of time he was promoted to the post
of District Inspector in the Excise Department in · the grade of
salary of Rs. 220-10-300. In 1957, the Government of Bombay
again introduced the system of distribution of foodgrains on the
basis of household cards.
The appellant in view of his record
of service in the Civil Supplies Department was asked to go on
"deputation" in the Agriculture and Forests Department as a Subll)spector under the Controller of Foodgrains Distributon, Bombav.
Jn 1960, the appellant was appointed to a temporary po.•t ~f
Controller of Foodgrains Distribution, Bombay in the grade of
Rs. 475-25-600-50-750.
In 1961 the appellant was drawing a
salary of Rs. 500 p. m. as a Controller of Foodgrains Distribution.
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SUPIU!llll COUJ.T lll!PollTS
[1971] SUPP. s.c.ll.
The llppeilant married his daughter in the month of December, 1961.
The appellant's daughter, a
qualified doctor, was
then working aa a Resident Medical Officer in the Bombay Municipal Corporation.
The appellant was asked by the Director ?f
Civil Supplie.ll in the montbJ of January to March, 1962 partly m
writing and partly orally first whether he had forced his peons
to do menial work at the marriage of his daughter, secondly, if
he had taken cash and gifts from Fair Price Shop-owners ; and.
thirdly, whether he had forced the staff to contribute in cash for
the marriage of his daughter.
The appellant denied these allegations.
Thereafter, the Secretary to the Government of Maharashtra. Agriculture and Fore.llts Department told the appellant in the
month of April, 1962 that there were complaints against him and
that "there could be no 11moke without fire", and the appellant
would be "repatriated" to the Prohibition and Excise Department.
The Minister of Civil Supplies in the month of April, 1962 visited
the appellant'i; office and llaid that there were. complaints against
him.
The appellant requested a thorough enquiry in connection
with such complaints.
Subliequent to the visit of the Minister,
an Inspector of Police of the Anti-corruption Branch took possesIlion of liCVeral files of various fair price i;hop-keepers for scrutiny.
Thereafter, the Government of Bombay by a resolution dated
8 May, 1962 directed that the appellant who was "on deputation
from the Excise and Prohibition Department should be repatriated
to his parent department with immediate effect". The appellant
was asked to hand over charge and the appellant was posted by
the Director of Excise and Prohibition in the Office of Officiating
Inspector in his Department.
In the month of July, 1962 the appellant came to know that
the Anti-corruption Branch of the Police submitted a report to the
Government and the appellant was found to be exonerated from
all charges.
The appellant made a representation to the Government bringing the said fact to the notice of the relevant authorities and requested for appointment to the post of Controller of
Foodgrains. The Government did not send him any reply to the
appellant'i; representation.
The appellant contended that the resolution was in the nature
of punishment by way of reduction in
rank in violation of the
provisions contained in Article 311 of the Constitution and made
an application under Article 226 of the Constitution impeaching
the order of reversion as an action of punishment taken on false
reports without waiting for the investigation by the police to be
complete.
The learned Single Judgo of the Bombay lffsh Court held
that the order ot 8 May. 1962 was an act ot punishment and reduction in rank. The Division Bench of the Bombay High Court
PHADNIS J. ilAHAliSHTRA (Ray, J.)
reversed that judgment and held that the appellant had no legal
right to the post in the Department of Agriculture and Forests
and therefore his reversion was not a punishment.
This Court in Parshotam Lal Dhingra v. Union of India (')
laid down three propositions ; First, Article 311 makes no distinction between permanent and temporary members of the iervices
or between persons holding permanent or temporary posts and
aa'.ords protection to both classes of servants; secondly, if a Government servant has no right to the particular rank his reduction from
an officiating higher rank to his substantive lower rank will not
by itself be a punishment ; and, thirdly, the mere fact that the
sccvant has no title to the post or the rank and the Government
has by contract, express or implied or under the rules governing
the conditions of his service, the right to reduce him to a lower
post does not mean that the order of reduction of a servant to a
lower post or rank cannot in any circumstance be a punishment.
In determining whether the reduction is or is not by way of
punishment it has to be found out if the order entails or provides
for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of
his future chances of promotion, or that irr truth and reality the
Government has passed the order as and by way of penalty.
In applying these principles Dhingra's(')
case laid down
two tests; first, whether the servant had right to the post or the
rank, or, secondly, whether he has been: visited with evil consequences of the kind mentioned in that decision.
This Court in Sukhbans Singh v. State of Punjab(') in dealing
with the question: as to whether a probationer has any right to hold
the post said that. it would not be correct to say that a probationer
has a right to the higher post in which he is officiating or a right
to be confirmed, but a probationer could not be punished for misconduct without complying with the requirements of Article 31 \.
The appellant in that case was recruited as Tehsildar in 1936. He
was thereafter selected by the Purrjab Public Service Commission
and appointed as an Extra Assistant Commissioner on probation
in 1945.
On 20 May, 1952 he was reverted to his substantive
post of Tehsildar.
He asked for the grounds of reversion.
He
was denied the same.
This Court held on the facts that the
Government wanted to punish him for what it thought was mis-
. conduct and therefore reverted hjm.
Thus, reversion by way of
punishment without complying with the provisions of Article 311
<lallllOt be Sustained.
(I) (1958] s. c. R. 828
(2) [1963] l s. c. R. 416
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SUPREME COURT REPORTS
[1971] SUPP. s.c.L
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In the recent unreported decision in Appar Apar Singh v. The
State of Punjab & Ors.(') the question for consideration was
whether an order reverting the appellant in that case from a p06t
in Class I service in which he was officiating to his substantive post
in Qass II amounted to reduction in rank. The appellant was
employed in the Punjab Education Service Class II.
He was
promoted to Class I on an officiating post as Principal of the
Government College, Muktsar.
He had trouble with the members of the staff.
The appellant as Principal of the College in.
reading the annual report made certain aspersions against some
members of the teaching staff.
Thereafter, an enquiry was made
pursuant to the demand of some of the parents of the students.
Two Deputy Directors made· an enquiry.
At that enquiry the
appellant was neither given copies of statements recorded nor was
he allowed to cross-examine the witnesses.
The State contended
that it was a preliminary confidential enquiry into the affairs of
the College and that the appellam had no right to continue in
Class I appointment where he was only officiating.
The High
Court held that the order of reversion was not by way of punish·
ment but only because the person reverted was not found suitable
to hold the post and an enquiry was only to find out the state of
affairs of the normal functioning of the College.
This Court held
that the enquiry by the Deputy Directors was to investigate alle·
gations against the Principal and the Deputy Directors recommended exemplary punishment.
Therefore the order amounted to re·
duction in rank and as no enquiry regarding disciplinary proceed·
ings was held, the order was in violation of the provisions of
Article 31 I.
The most pre-eminent features which accentuate the order of
reversion to be in the nature of punishment in the present case
are these;
The appellant was faced with certain charges of
receiving money and gifts at the time of the marriage of his
daughter. The appellant denied the allegations. The Secretary
to the Government virtually threatened to repatriate the appellant
to his parent department.
The Minister visited the office of the
appellant.
The Police conducted an enquiry.
The appellant
himself had asked for an enquiry.
At the time of the passing
of the order of reversion the appellant not only protested but also
asked the Government to wait for the completion of the investigation. The Government did not accede to that request.
Subse-.
quently, the investigation indicated that the appellant was· totally
free from blame or taint.
The entire service record of the appellant showed that the
appellant was chosen to go on "deputation" twice once in 1942 and'
(I) Civil Appeal No. 2S of 1967 decided on 3·12·1970
PUADNIS v. MAHARASHTRA (Ray, I.)
again in 1957.
From 1942 to 1955 he was in the Food Depart·
ment and he was promoted from time to time.
Between 1942
and 19 55 the appellant rose from the post of Permit Officer to
that of Rationing Officer at the salary of Rs. 530 p. m. In 1955
the post was abolished.
The appellant was reverted to his parent
department. In his parent department the appellant was also
promoted to the post of Inspector and thereafter District Inspector
in the grade of Rs. 220-10-300. In 1957, the appellant was again
sent on deputation to the Food Department.
The appellant was
chosen for his experience.
Again, he received a promotion and
increment in salary.
It is true that the post which the appellant held was a tem·
porary one, but the post continued for several years.
The indi·
cations were that the post was practically of a quasi-permanent
character.
Th~ appellant was reverted neither because the. tem·
porary post was abolished nor because he was found unsuttable
to continue.
The parent department of the appellant did not
want him back.
The order of reversion simplii;iter will not amount to a reduction in rank or a punishment.
A Government servant holding a
temporary post and having lien on his substantive post may be
sent back to the substantive post in ordinary routine administra·
tion or beca.use of exigencies of service. A person holding a
temporary post may draw a salary higher than that of bis subs·
tantive post and when be is reverted to bis parent department the
loss of salary cannot be said to have any penal consequence.
Therefore though the Government bas right to revert a Government servant from the temporary post to a substantive post, the
matter bas to be viewed as one of substance and all relevant factors are to be considered hr ascertaining whether the order is a
genuine one of "accident of service" in which a person sent from
~e substantive post to a temporary post has to go back to the
parent post without an aspersion against bis 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 band, if there is evidence that the order of reversion is not
"a pure accident of service" but an order in the nature of punish·
ment, Article 311 will be attracted.
In the present case, the facts and circumstances to which
reference has already been made bring out in bold 'relief that the
order of reversion was in the nature of punishment:
The order
was not in compliance with the provisions of the Constitution.
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SUPR.EID! couar REPORTS
[1971] SUPP. s.c.R.
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For these reasons, we arc of opinion that the learned Single
Judge was correct in his judgment. The appeal is allowed. The
Bench decision of the Bombay High Court is 1et aside and the
judgment of the learned Single Judge i! restored.
The appellant
will be entitled to costs in this Court
V.P.S.
App~al allowed.