# STATE OF BIHAR & ORS v. SHIVA BHIKSHUK MISHRA

- **Citation:** [1971] 2 S.C.R. 191
- **Court:** Supreme Court of India
- **Decided:** 1970-09-14
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-ors-v-shiva-bhikshuk-mishra-5312
- **Pages:** 6

## Headnote

191
Constitution of India, 1950, Art. 311-Reversion und •dismissal of
civil servant--Order of reversion not containing express words
casting
stigma-Entirety of circumstances must be seen to detertnine whether
order was one by way of punishment though not expressly so-Dismissal
by officer subordinate to appointing authority invalid.
The respondent was holding the substantive post of Sergeant in the
Bihar Police Force till July 31, 1946.
On August I, 1946 he was promoted to officiate in the higher post of Subedar. In January 1948, while
still holding the substantivo post of Sergeant he was promoted to officiate temporarilY. as Subedar Major.
In October 1950 the Commandant
of the Bihar Military Police. Muzaffarpur wrote to the Deputy Inspector
General of Police Armed Forces suggesting that the respondent should
be censured for having assaulted an orderly.
The
Deputy
Inspector
General recommended to the Inspector General that in view of the aforesaid incident the respondent be reverted to his substantive post of Sergeant pending the result of the departmental enquiry for
misconduct
which was already going on against him.
In November 1950 the Ins-·
pector General reverted the respondent to the post of Sergeant.
After
the conclusion of the department'. enquiry the respondent was dismissed
from service in April 1953 by an order of the Deputy Inspector General.
-In February 1954 thcr respondent filed a suit for declaration that his
demotion to the post of Sergeant and subsequent dismissal from service
were wrongful, illegal . and inoperative.
The trial .court dismissed the
suit. The High Court on appeal reversed the decision of the trial court
on the finding that the 'reversion was not in ·the usual course or for administrative reasons but it was after the finding on an inquiry about some
complaint against the plaintiff and by way of punishment to him." The
order of dismissal was set aside on the ground that it had been made by
the Deputy Inspector General
while the appointing authority
in the
case of the post ·of Subcdar-Major was the Inspector General so that
there was a violation of Art. 311 (I). In appeal to this Court against
the judgment of the Hi~h Court the question that fell for consideration was
was v.·hether the reversion of the respondent from the post of officiating
Subedar-Major was made in circumstances which would attract the applicability of .Art. 311 (2) of the Constitution.
HELD : Dlwba's case is not an authority for the proposition that so
long as there are no express words cif stigma attributed to the conduct
of a Government officer in the impugned order it cannot be held to have
been made by way of punishment. The form of the order is not conclusive of its true nature and it mi~ht merely he a cloak and camouflage for an order founded on misronduct. It may be that an order which
is innocuous on the face and does not contain any imputation of miscon- ·
duct 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 the impugned order must
SUPREME COURT REPORTS
[1971] 2 S.C.R.
be e.,amined and the overriding test will aways be whether the miscon· A
duct is a mere motive or is the very foundation of the order. 1196 C-E]
In the present case the High Court found that the o~der of reversi.on
was made owing to the ·note of the Deputy Inspector General of Police
folloWing the rCport of the Commandant. The order of reversion was
directly and proximately founded on what the
Commandant and
the
Deputy Jnspcctor General of Police said relating to the respondent's B
conduct generally and ir. particular with reference to the . incident .of
assault hy him on ttie orderly.
There ,:vas no rea.son to d1sagr~c ~1th
the, High ('nurt that the order of reversion was void. ·In that s1tuat1on
it was not disputed that the order of dismissal which was passed by the
Deputy Inspector General of Police violated Art. 311(1)

## Text

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STATE OF BIHAR & ORS.
v.
SHIVA BHIKSHUK MISHRA
September 14, 1970
(J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]
191
Constitution of India, 1950, Art. 311-Reversion und •dismissal of
civil servant--Order of reversion not containing express words
casting
stigma-Entirety of circumstances must be seen to detertnine whether
order was one by way of punishment though not expressly so-Dismissal
by officer subordinate to appointing authority invalid.
The respondent was holding the substantive post of Sergeant in the
Bihar Police Force till July 31, 1946.
On August I, 1946 he was promoted to officiate in the higher post of Subedar. In January 1948, while
still holding the substantivo post of Sergeant he was promoted to officiate temporarilY. as Subedar Major.
In October 1950 the Commandant
of the Bihar Military Police. Muzaffarpur wrote to the Deputy Inspector
General of Police Armed Forces suggesting that the respondent should
be censured for having assaulted an orderly.
The
Deputy
Inspector
General recommended to the Inspector General that in view of the aforesaid incident the respondent be reverted to his substantive post of Sergeant pending the result of the departmental enquiry for
misconduct
which was already going on against him.
In November 1950 the Ins-·
pector General reverted the respondent to the post of Sergeant.
After
the conclusion of the department'. enquiry the respondent was dismissed
from service in April 1953 by an order of the Deputy Inspector General.
-In February 1954 thcr respondent filed a suit for declaration that his
demotion to the post of Sergeant and subsequent dismissal from service
were wrongful, illegal . and inoperative.
The trial .court dismissed the
suit. The High Court on appeal reversed the decision of the trial court
on the finding that the 'reversion was not in ·the usual course or for administrative reasons but it was after the finding on an inquiry about some
complaint against the plaintiff and by way of punishment to him." The
order of dismissal was set aside on the ground that it had been made by
the Deputy Inspector General
while the appointing authority
in the
case of the post ·of Subcdar-Major was the Inspector General so that
there was a violation of Art. 311 (I). In appeal to this Court against
the judgment of the Hi~h Court the question that fell for consideration was
was v.·hether the reversion of the respondent from the post of officiating
Subedar-Major was made in circumstances which would attract the applicability of .Art. 311 (2) of the Constitution.
HELD : Dlwba's case is not an authority for the proposition that so
long as there are no express words cif stigma attributed to the conduct
of a Government officer in the impugned order it cannot be held to have
been made by way of punishment. The form of the order is not conclusive of its true nature and it mi~ht merely he a cloak and camouflage for an order founded on misronduct. It may be that an order which
is innocuous on the face and does not contain any imputation of miscon- ·
duct 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 the impugned order must
SUPREME COURT REPORTS
[1971] 2 S.C.R.
be e.,amined and the overriding test will aways be whether the miscon· A
duct is a mere motive or is the very foundation of the order. 1196 C-E]
In the present case the High Court found that the o~der of reversi.on
was made owing to the ·note of the Deputy Inspector General of Police
folloWing the rCport of the Commandant. The order of reversion was
directly and proximately founded on what the
Commandant and
the
Deputy Jnspcctor General of Police said relating to the respondent's B
conduct generally and ir. particular with reference to the . incident .of
assault hy him on ttie orderly.
There ,:vas no rea.son to d1sagr~c ~1th
the, High ('nurt that the order of reversion was void. ·In that s1tuat1on
it was not disputed that the order of dismissal which was passed by the
Deputy Inspector General of Police violated Art. 311(1) of the Constitution and had hccn rightly set aside hy the High Court. 1196 F-GJ
State of Punjab & Anr, v. Shri SuRI' Raj Bahadur, [t968] 3 S.C.R. C
134 and S. R. Tiimri v. District Board A11m & Anr. 11964] J S.C.R. 55,.
applied.
Union nf India v. R. S. Dhaha, l.T.0. Hoshiarp11r, C.A. No 882/66
dt. 7-4·69, distinguished nnd explained.
CIVIL Arrr.LLATE JURISDICTION : Civil Appeal No. 1363 of
1966.
D ·
Appeal. from the juclgmeint and decree t.latcd August 25, 1965
of the Patna High Court in First Appeal No. 257 of l 960.
L. M. Singhvi ant.l U. P. Singh, for the appellants.
D. Goburdh1111 and R. Goburdhun, for the respondent,
The .Judgment of the Court was delivered by
. Grover, ,J, This is an appeal by certificate from a judgmcnl of
the Patna High Court. The respondent was holding the substnn·
tive post of a Sergeant in the police force till July 31, I 946 in the
State of Bihar. On August I, 1946 he was promoted to nfficia\c
E
in. the higher post of Subedar.
On January 9, 1948 while he was F
still holding the substantive post of a Sergeant he was promoted to
officiate temporarily as a Subedar-Major.
It appears that on Oc-
. tober 3, 1950 the Commandant of the Bih.ar Military Police,
Muzaffarpur wrote to the Deputy Inspector General of Police.
Armed Forces, mentioning an incident between the ,respondent
and his orderly on the night of September 22, 1950. The inciG
dent involved a physical assault by the. respondent on the orderly.
The Commandant made an inquiry in the matter and expressed
the opinion that the respondent had actually assaulted his orderly
by taking the law into his own. hand instead of bringing any complaint which existed against the orderly to the notice of the higher
authorities for proper action.
In the penultimate paragraph of H
his letter the Commandant wrote, "to drop the above incident
without taking action, in order to prevent any re-occurrence of the
Subedar Major's gross mis<:onduct, I suggest he be censured for
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BIHAR V. s. B. MISHRI (Grover, !.)
193
his unsatisfactory behaviour where h~ faiied to maimain the required discipline". The Deputy Inspector General wrote a note
to the Inspector General as follows :-
"Kindly see pp. 15-· 12 which relate to the notorious
Subedar Major S. B. Missir of B.M.P. VI whose 70n:
duct is already under enquiry by a Board to be pres1dea
over by the LG. himself.
In this particular c\se Subedar Major Missir appears
to have tripped up very badly and I feel that transfer, as
recommended by D.I.G.A.F. is no cure.
It is indeed strange that our Board accepted the
Subedar Major for promotion to the rank of Sergeant
Major although he has not yet undergone training {If a
Sergeant.
In a similar case the then D.I.G.A.F. recommended that a temporary Sgt.
must undergo the
Sergeant's course before his case was considered f<:'r
promotion; The Subedar Major, is perhaps; too old to
learn and in any ca~e cannot be posted as a Sergeant
Ma1or in view of the fact that he was never trained as a
Sergeant and has never worked in a district. He was
originally appointed in the R.F .P. by . Mr. Creed's
Board.
I recommend that the officiating Subedar Major should be
reverted .to his substantive rank of Sergeant and posted to Hazaribagh. The question whether he should be retained in seryice will
be de.cided after the Board of enquiry concludes its labour. I am
purposely suggest\ng his posting to Hazaribagh because he will be
far away from the witnesse~ and would not be able to tamper with
the evidence recorded of each witness. Even the present charge
against Subedar Major Missir is serious but the order of reversion·
would meet with the case, as it is obvious that he is not likely to
make either a suitable Subedar Major or Sergeant Major.''
The Inspector-General made an order on November. 2, 1950,
"as proposed"
In the first week of November 1950 .the respon·
dent was ·asked to attend a Board of enquiry for answering charges
Gof misconduct.
On November 14, 1950 the respondent was reverted to his substantive post of Sergeant. On Aptil 7, 1953 an
order was made by the Deputy-Inspector-General dismissing the
respondent from service.
H
In February 1954 the respondent filed a suit for a declaration
that his demotion from the rank of a Subedar Major to that of
~ergeant. and dismissal froin service were wrongful, illegal and
moperahve and that he had all along remained a Subedar-Major
He further claimed a decree for a sum of Rs. 3,118/- on account
of arrears of pay as detailed in Schedule I attached to the plaint
194
S.\JPREME COURT REPORTS
(1971) 2 S.C.R.
with future interest. The trial Court dismissed the suit on the view
that the order of reversion did not contain any stigma on the competence and character of the respondent and that it had not been
made by way of punishment. The High Court oru appeal reversed
the decision of the trial court on the finding that the "reversion
was not in the usual course or for administrative reasons· but it was
after a finding on an inquiry about some complaint against the
plaintiff and by way of punishment to.him". The order of dismissal was set aside on the short ground that if the respondent
continued to remain in the post of Subedar-Major even in an offi,
ciating capacity on the date with effect from which the order of
dismissal was passed the provisions of Art. .311 ( 1) had not .been
complied with.
The Deputy Inspector General who had passed
the order of dismissal was subordinate to the authority by which
l]e had been appointed to officiate in the post of Subedar Major,
that authority being the Inspector General of Police.
The dis-
. missal order was, therefore, invalid and not binding on the respondent.
He was granted the declaration asked for by him together with a decree for Rs. 3, 118/- with future interest at the rate
of 6% per annum.
The sole point which falls for determination is whether the
reversion of the respondent from the post of officiating Subedar
Major was made in the circumstances which would attract the
applicability of Art.
311 (2) of the Constitution.
Mitter J .,
delivering the judgment of this Court in State of Punjab & anr. v.
Shr( Sukh Raj Bahadur(1) stated the following propositions on a
consi<leration of the numerous decisions on the point :-
"1. The services of a temporary servant or a probationer can be terminated under the rule> of his employment and such termination without anything more would
not attract the operation of Art. 311 of the Constituion.
2. The circumsances preceding or attendant on the
order of termination 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.
4. An order of termination of service in unexcep··
tionable form preceded by an enquiry launched by the
superior authorities only to ascertain whether the public servant should be retained in service does not attract
the operation of Art. 311 of the Constitution.
(I) [1968] 3 S.C.R. Z34.
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BIHAR V, s. B. MISHRI (Grover, I.)
5. If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed,
a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article''.
195
The argument soaght to be raised on behalf of the appellant is
that the order of reversion of the respondent to his substantive post
casts no aspersion against his character or integrity. Even if the
motive behind the making of the order was the report of the
Deputy Inspector General dated November 1, 1950 consequent
on the communication received from the Commandant dated October 3, 1950 arising out of the incident involvin,g an assault by
the respondent on his orderly it would not be a case of reverslon
by way of punishment. A great deal of stress is laid on the f~ct
that no departmental enquiry as envisaged by Art. 311 was made
into the abovementioned incident before reversion was ordered.
Our attention has been invited to this Court's decision in the Union
of Indla & Anr. v. R. S. Dhaba, Income Tax Officer, Hoshiarpur( 1)
in which Mr. Pillai the then Commissioner of Income tax had
said that the officer conterned should be reverted because of the
the large number of complaints which the departmoot had received
against his integrity· and the bacf reports received by him from his
superiors. The successor of Mr. Pillai Mr. S. R. Mehta niade an
order on May 22, 1964 to the effect that Dhaba officiating Income
tax Officer Class II had been found unsuitable, after trial, to hold
that post; and his reversion was ordered as Officiating Inspector,
Income tax. It was held by this Court that the order of reversion
had said that the officer concerned should be reverted because of
High Court to the contrary was set aside.
A large . measure of
support is sought to be derived from this decision, because of the
previous opinion of the Commissioner of Income tax which was
highly prejudicial to Dhaba and the argument raised there was
that the reversion of Dhaba was the direct result of the note of
Mr. Pillai.
This is what was observed. by this Court in that
case:-
"The test for attracting Art. 311 ( 2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for {he order of reversion or termination of service or whether it is the very foundation of
the order of termination of service of the temporary
employee (see the decision of this Court in Champaklal
Chimanlal Shah v. The Union of Indla [1964] 5 S.C.R.
l 90. In the present case, however, the order ·of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore,
(1), C. A. 882/66 dt. 7th April 1969.
196
SUPREME COURT REPORTS
[1.971) 2 s.c.R.
it cannot be held that the order of reversion was made
by way of punishment and the provisions of Art. 311 of
the Constitution are consequently attracted".
We are unable to accede to the contention of the appellant
that the ratio of the above decision is that so long as there are no
express words of stigma attributed to the cond\lct of a Govern-
. menf Officer in the impugned order it cannot be held to have been
· !nude by way of punishment.
The test as previously laid and
which \i:as relied on was whether the misconduct or negligence was
a mere motive for the order of reversion or whether it was the very
foundation of that order.
In Dhaba's( 1) case it was not found
that the order of reversion was based on misconduct or negligence
of the officer.
So far as we are aware no such rigid principle has
ever been laid down by this Court that one has only to look to the
order and if it docs not contain any imputation of misconduct or
words attaching a stigma to the character or reputation of a Gov-
. ernment Officer it must be held to have been made in the ordinary
course of administrative routine and the court is debarred from
looking at all the attendant circumstances to discover whether the
order had been made by way of punish,ij1ent.
The form of the
order is not conclusive of its true nature and it might merely be a
cloak or camouflage for an order founded on misconduct
(see
S. R. Tewari .v. District Board Agra & Anr.(").
It may be that
an order which i~ innocuous on the face and does not contain any
imputation of misconduct is a circumstance or a piece of evidence
for finding whether it was made by way of punishment or adminis·
trative routine.
But the entirety of circumstances preceding or
attendant on the impugned order must be examined and the over·
riding test will always be whether the misconduct is a mere motive
or. is the very foundation of the order.
In the present case the High Court found that the order of
reversion was made owing, to the note of the Deputy InspectorOeneral of Police following the report of the Commandant. The
order of reversion was direc1!y and proximately founded on what
the Commandant and the Deputy Inspector General said relating
to the respondent's conduct generally and in particular with reference to the incident of assault by him on his orderly. We find no
reason to disagree with the view of the High Court. It is not disputed that if the order of reversion was void the subsequent order
of dismissal which was passed by the Deputy Inspector General
of Police would be violative of Art. 311 (I) of the Constitution.
The appeal fails and it is dismissed with costs.
G.C.
Appeal dismissed.
[I] C.A. 882of1966 dt. 7-4-69.
(2). (1964) 3 S.C:R.
55.
L235 Sup. Cl/71-2500-17-11-71-GIPF.
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