# STATE OF PUNJAB v. KISHANDASS

- **Citation:** [1971] 3 S.C.R. 389
- **Court:** Supreme Court of India
- **Decided:** 1971-01-19
- **Case number:** Civil Appeal No. 359 of 1967
- **Bench:** J. M. Shelat, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-kishandass-5138
- **Pages:** 9

## Headnote

Constitution of India. Arr. 311-Forfeiiure of past service-If amounts
to reduction in rank.
Pursuant to certain charges against the respondent, a police constable,
his entire service with permanent effect were forfeited, which meant reducing his salary to the starting point in the time scale for constables. An
appeal by him before the Deputy Inspector General having failed, he filed
a suit. The trial court decreed the suit holding that the order amounted
to reduction in rank, therefore, Art. 311(2) of the Constitution was attracted and as no show cause notice was served belfore the order was passed,
the order was vitiated and was bad. The decree was affirmed by the first
appellate court and thereafter in second appeal by the High Court. Allowing the appeal by the State, this Court,
HELD : The expression "reduction in rank" in Art. 311 (2) has to be
construed according to the well-established meaning it bas acquired, as in
the case of the other two expressions, namely, 'dismissal' and 'removal' in
that Article, under the various service rules and under the provisions in
that regard in the Constitution Acts of 1915 and 1935. The expression
"reduction in rank" in the Article, therefore, means reduction
from a
higher to a lower rank or post when imposed as a penalty. Therefore, an
order forfeiting the past service which has earned a Government servant
increments in the post or rank he holds, howsoever adverse it is to him,
affecting his seniority within the rank to which he belongs or his future
chances or promotion, does not attract the Article. His remedy, there/fore,
is confined to the rules of service governing his post. [397 E]
High Court, Calcutta v. Amal Kumar Roy, [1963] 1 S.C.R. 437 and
Shit/a S. Shrivastava v. Nol'th Eastern Rly. [1963] 3 S.C.R. 61, followed.
Parshotam Lal Dhingra v. Union of India,
[1958] S.C.R. 828, disapproved.
Rupnarain Singh, State of Orissa, A.I.R. 1959, Orissa 167, P. C.
Wadhwa v. Union of India, [1964] 4 S.C.R. 598 and Dubesh Chandra Das
v. Union of India, A.IR 1970 S.C. 77, distinguished.
Shri Madhav Laxman Vaikunthe v. State of Mysore, [1962] I S.C.R.
886 and Afzalur Rahman v. Emperor, A.LR. 1943 F.C. 18, referred tv.

## Text

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STATE OF PUNJAB
v.
KISHANDASS
January 19, 1971
389
[J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.]
Constitution of India. Arr. 311-Forfeiiure of past service-If amounts
to reduction in rank.
Pursuant to certain charges against the respondent, a police constable,
his entire service with permanent effect were forfeited, which meant reducing his salary to the starting point in the time scale for constables. An
appeal by him before the Deputy Inspector General having failed, he filed
a suit. The trial court decreed the suit holding that the order amounted
to reduction in rank, therefore, Art. 311(2) of the Constitution was attracted and as no show cause notice was served belfore the order was passed,
the order was vitiated and was bad. The decree was affirmed by the first
appellate court and thereafter in second appeal by the High Court. Allowing the appeal by the State, this Court,
HELD : The expression "reduction in rank" in Art. 311 (2) has to be
construed according to the well-established meaning it bas acquired, as in
the case of the other two expressions, namely, 'dismissal' and 'removal' in
that Article, under the various service rules and under the provisions in
that regard in the Constitution Acts of 1915 and 1935. The expression
"reduction in rank" in the Article, therefore, means reduction
from a
higher to a lower rank or post when imposed as a penalty. Therefore, an
order forfeiting the past service which has earned a Government servant
increments in the post or rank he holds, howsoever adverse it is to him,
affecting his seniority within the rank to which he belongs or his future
chances or promotion, does not attract the Article. His remedy, there/fore,
is confined to the rules of service governing his post. [397 E]
High Court, Calcutta v. Amal Kumar Roy, [1963] 1 S.C.R. 437 and
Shit/a S. Shrivastava v. Nol'th Eastern Rly. [1963] 3 S.C.R. 61, followed.
Parshotam Lal Dhingra v. Union of India,
[1958] S.C.R. 828, disapproved.
Rupnarain Singh, State of Orissa, A.I.R. 1959, Orissa 167, P. C.
Wadhwa v. Union of India, [1964] 4 S.C.R. 598 and Dubesh Chandra Das
v. Union of India, A.IR 1970 S.C. 77, distinguished.
Shri Madhav Laxman Vaikunthe v. State of Mysore, [1962] I S.C.R.
886 and Afzalur Rahman v. Emperor, A.LR. 1943 F.C. 18, referred tv.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 359 of
1967.
Appeal by special leave from the judgment and order dated
July 29. 1966 of the Punjab High Court in Civil Misc. No. 1144-C
of 1966 in Regular Second Appeal No. 340 of 1966.
V. C. Mahajan, for the appellant.
A. N. Nag, for the respondent.
390
SUPREME COURT REPORTS
[1971] 3 ;:;.C.R.
The Judgment of the Court was delivered by
Shelat, J.
The respondent
was at all material times
a
con>table in the Punjab Police Service and was posted at Ambala.
In November 1960, he was served with a charge sheet attributing to
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him arrogance towards his superior officers and indiscipline.
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depanmental enqiury was admittedly held in accordance with the
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procedure laid down therefor in the Punjab Police Rules, 1934.
The said charges having been held to have been proved, an order
followed forfeiting his entire service with permanent effect. This
meant bringing down his salary to Rs. 45/- per month, which
would be the, salary payable to a constable at the starting point of
his service. An appeal by him before the Deputy InspectocGeneC
ral having failed,
he filed
a suit in the Court of Sub-Judge,
Ambala.
The suit was on th-~ basis that the said order amounted to reduction in· rank, that therefore, Art. 311 (2) of the Ce>nstitution
was. attracted and that no show cause notice against the action
proposed against him having been served upon him before the
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said order: was passed, the order was vitiated and was bad. The
· Trial Court accep•~d this contention and decreed the suit.
An
. appeal by the appellant-State failed as the District Judge, relying on Rupnarain Singh v. State of Orissa(1) . held that the
said order amounted to reduction in rank and the respondent was
therefore entitled to the procedural safeguards laid down in Art.
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311 (2). A second appeal by the State before the High Court
was summarily rejected.
Hence this appeal founded on special
leave granted by this Court.
The only question arising in this appeal, the facts not .being
in dispute, is whether the order forfeiting the respondent's service,
which meant reducing his salary to the starting point in the timeF
scale for constables, amounted to reduction. in rank witflln
the
meaning of Art. 311 (2).
The respondent being a constable,
there was no question of his being reduced from a higher post
or rank to a lower post or rank. The order, nonetheless, reduced
the emoluments received by him as it deprived him of the increments earned by him as a result of the approved service, he had
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. put iri, having been forfeited.
It also affected his seniority, and
therefore, chances of promotion.
The question is, whether for
that reason the order is tantamount to reduction in rank attracting
Art.
311(2),
Rule 1.13 of he PuRjab Police Service Rules (hereinafter referred to as the Rules) provides that a 'gazetted police officer''
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means a p01ice officer appointed under s. 4 of Act V of 1861,
(I) A.l.R.1959 Orissa 167.
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PUNJAB v. KISHANDAS (Shelat, J.)
391
and includes the Inspector-General, Deputy Inspectqrs-General,.
Assistant Inspectors-General, Superintendents, Assistant Superintendents and Deputy Superintendents.
The expression "enrolled
police officer" means police officers appointed under s. 7 of the
said Act and includes inspectors, sergeants, sub-inspectors, asistant sub-inspectors, head contables and constables.
The expression "upper subordinate" includes all enrolled police officer of and
above the rank of assistant sub-inspector, and the expression "lower
subordinate" includes all other enrolled police officers.
There
is thus a hierarchy in the Police Service of the State comprised of
several posts, the post of a constable being the last rung in the
ladder. Rule 13.1, which deals with promotion of police officers
from one rank to another, provides that such promotions from
one rank to another and from one grade to another in the same
rank shall be made by selection tampered by seniority . Cl. 3 of
· that rule lays down that for purposes of regulating promotion.
amongst enrolled police officers, six promotion lists, A, B, C, D, E
and F should be maintained. Lists A, B, C and D'are meant to
regulate promotion to the selection grade of constables and to the
ranks of head constables and assistant sub-inspectors.
List E
iregulates promotion to the rank of sub-inspector and List F
regulates promotion to the rank of Inspector.
Rule 13.5 deals.
with promotion of constables to selection grade and r. 13.6 provides that a list, called List A, shall be maintained by each Superintendent of Police of constables eligible under r. 13.5 for piromotion to the s.election grade of constables. Rule 13.7 provides
for a list, called List B, divided into two parts, namely, selection
grade constables considered suitable as candidates for the Lower·
School course at the Police Training School, and constables, selection or time-scale, considered suitable for drill and other special
courses at the Police Training School. Rule 13.8 lays down that
promotion to the post of head constable has to be made in accordance with principle described in sμb-rules (1) and (2) of r. 13.1.
Rule 13.8-A . provides that infliction of any major punishment
would be a bar to admission to or retention in lists A, B or C.
Rule 16.1 lays down diverse punishments which can be awarded
to members of the service in accordance with the provisions con-·
tained in th~e Rules.
These punishments are : ( 1) dismi~sal,
(2) reduction, (3) stoppage of increment or forfeiture of approv-·
ed service for increment, ( 4) entry of censure, ( 5) confinement to·
qll'.lrters for a period not exceeding 15 days, ( 6) extra guards,
fal!gue or other ~uty, an~ punishment drill for certain days. Under
r. 16.1(3~, a m~1or pu?1shmen.t means any authorized punishment
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of ~educt!on: w1thholdmg of mcrements, forfeiture of approved·
semce, d1sm1ssa1 and every judicial conviction on a criminal .
charge. Rule 16.4 defines 'reduction' and provides that a police
officer may be reduced (a) to a lower rank (except in the case
392
SUPREME COURT REPORTS
[1971] 3 S.C.R.
-0f sergents and of constables on the time-scale), (b) from the
selection grade of a rank to the time-scale of the same rank,
( c) if in a graded rank to a lower position in the seniority list of
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his grade or to a lower grade in his rank. Rule 16.5 provides
that the increment of a police officer on a time-scale may be
withheld as a punishment. Cl. (2) of that rule provides that approved service for increment may be forfuited, either temporarily
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or permanently,
and
such
forfeiture
may entail
either
the
deferment
of
an increment
or increments
or
a
reduction in pay.
It further provides that
the order must
state whether the forfeiture of approved service is to be permanent, or, if not, the period for which it has been forfeited.
Thus, under rules 16.4 and 16.5 the two punisliments of reduction
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and forfeiture of service are two distinct puni
l'P.nts. · Rule 16.24
lays down the procedure to be followed in deparunental enquiries.
Cl. (ix) of that rule clearly provides that it ·is only in the case
of an order of dismissal or reduction in rank that a second show
cause notice against th!) proposed action against a police officer
has to be served before an order is passed against him. Such a
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second show cause notice is, therefore, not required to be served
in the case of other major or minor punishments. There is no
dispute that ic the present case the procedure laid down in these
Rules and applicable to the respondent was followed.
The contention, however, was that though the Rules distinguish
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the two punishments of reduction and forfeiture of service and
treat them as distinct, there were certain decisions of this Courl
which have held that for an order to amount to reduction iP rank
within the meaning of Art. 311 (2) it was necessary that it must
actually reduce a government servant from a higher to a lower
post or rank, and that even if the order affected adversely his
seniority or chances of promotion within the rank or cadre to
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which he belongs, it would still constitute reduction in rank.
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Parshotam Lal Dhingra v.
Union of India(') was one such
case on which counsel leaned heavily. But the question there was
whether the reversion of the the appellant from Class II service,
wherein he was at the relevant time officiating, to Class III serG
vice to which he permanently belonged, amounted to punishment,
and therefore attracted Art.
311 (2), The decision laid down
the principle 'that reduction in rank would be punishment if it
carried with ft penal consequences and that the two tests to be applied were ( 1) whether· the servant had the right to the post or
rank and (2) whether evil consequences, such as forfeiture of
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pay ~r allowances, loss of seniority in his substantive rank, stoppage
(I) [19581 s.c.R. 828.
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PUNJAB v. KISHANDAS (Shelat, J.)
393
or post-ponement of future chances of promotion followed as
a
result of reduction in rank. The appellant in that case was holding an officiating pqst and had therefore no right under th.e Railway
Code to continue in it.
The Court held that since under the
general law such appointment was terminable at any time on
reasonable notice, the reduction could not operate as a forfeiture
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of any right, and therefore, the order could not be said to have
visited him with any evil consequences. Consequently, it did not
amount to reduction in rank by way of punishment. The decision
also laid down that the words "dismissal'', "removal" and "reduction in rank" used in Art. 311 (2) were words of art, having
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technical meanings, they having been adopted from service rules
prevailing earlier, such as Classification Rules of 1920 and 1930,
and having therefore acquired well-known meanings. Under those
rules, dismissal, removal and reduction in rank were major puni~
shrnents provinding special procedural protection.
On examination of the history of the service rules, s. 96B(i) of the Government of India Act, 1915, and s. 240 of the 1935 Act, the Court
h.eld that "both at the date of the commencement of the 1935 Act
and of our Constitution the words "dismissed", "removed" and
"redur.ed in rank", as used in the service rules, were well-understood as signifying or denoting the three major punishments which
could be inflicted on Government servants".
The decision concluded that "the principle is that when a servant has right to a
post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the
conditions of his service, the termination of the service of such
a servant or the reduction to a lower post is by itself and prima
facie a punishment, for it operates as a forfeiture of his right
to hold post or that rank and to get the emoluments and other benefits attached thereto".
The passage in the judgment emphasised
before us was :
"A reduction in rank likewise may be by way of
punishment or it may be an innocuous thing. If the
Government servant has a right to a particular rank,
than the very reduction from that· rank will operate as
a pena}tv, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the
particular rank, his reduction from an officiating higher
rank to his substantive lower rank will not ordinarilv be
a punishment. But the mere fact that the servant has no
title to the post or the rank and the Government has, by
contract, express or implied, or under the rules, the right
to reduce him to a lower post does not mean that an
order of reduction of a servant to a lower post or rank
cannot in any circumstances be a punishment. The real
test for determining whether the reduction in such cases is
394
SUPREME COURT REPORTS
[1971] 3 S.C.R.
or is not by way of punishment is to find out if the order
for the reduction also visits the servant with any penal
consequences."
According to this decision, reduction in rank within the meanA
ing of Art.
311 (2) means reduction from a higher to a lower
rank or post in the hierarchy of the service to which a government B
servant seeking protection of that article belongs and not reduction in the same rank; e.g., losing places in seniority in the rank
to which he belongs.
Shri Madhav Laxman Vaikunthe v. The State of Mysore(')
another decision relied on by counsel, was a case of a Mamlatdar, officiating ~s a District Deputy Collector. His reversion from
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the officiating post to his permanent post was held to be p;inishmen attracting Art. 311 ( 2).
This was a clear case of reduction in rank as the reversion brought down the appellant from a
higher to a lower post. It did not merely affect his seniority or
the stage at which he was in the time-scale to which he belonged
in the hierarchy of service.
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The decision in point really is. The High Court Calcutta v.
Antal Kumar Roy(') where the respondent, a Munsif, was excluded by the High Court from consideration for the post of a
Subordinate Judge for a year thereby depriving him eight places
in the cadre of Subordinate Judges when he was appointed an
Additional Subordinate Judge.
The respondent's contention was
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that such an e,Kclusion amounted to withholding of promotion
or reduction in rank. The first part of the contention was rejected
on the ground that he had no right to pormotion and. the. second
on the ground that deprivation of eight places in seniority in the
same rank did not constitute reduction in rank.
This decision
was foJ.lowed in Shit/a S. Srivastava v. North Eastern Railway(')
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where it was held that the removal of the appellant's name from a
provisional panel of persons for consideration for
higher posts
did not attract Art. 311 ( 2) as it did not amount to reduction in
rank. The Court held that the expression "rank" in Art. 311 (2)
had reference to a person's classification and not his particular
place in the same cadre in the heirarchy of the service to which
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he belongs.
It is thus clear that reduction in rank within the meaning of
Art. 311 (2), as the expression itself suggests, means reduction
from a higher to a lower rank or post and not merely losing
places in the rank or cadre to which the Government servant belon2s, and consequently, his seniority within such cadre or rank.
II
{
(1) [196211S.C.R.886.
(2) [1963]1S.C.R.437-
(J) [1966)3 S .. C.R. 61.
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PUNJAB v. KlSHANDAS (She/at, !.)
395
This would be so, even if as a result of the Government's action
he loses a higher salary or his chances of promotion to a higher
post are reduced. For such action, the remedy would be under
the rules governing the service and not under Art. 311(2)
as
such action does not amount to reduction in rank. as understood.
for the purposes of Art. 311 ( 2).
Counsel for the respondent, however, argued that there were
other decisions which have held otherwise and assisted him.
P. C. Wadhwa v. Union of India(') was one such decision which,
he thought, assisted him. In that case, the appellant was officiating in the senior time-scale and was posted at Ferozepore as an
Additional Superintendent of Police. In July 1958, he was
re\·erted to his substantive post. The reason for the reversion was
that he was tried as a Superintendent of Police and was found to·
be immature. The record showed that the reversion was not due
to t.he return of the permanent incumbent from leave or deputation
or for any other administrative reason and other officers junior to·
him continued in the senior time-scale while he was reverted. The
record also revealed that an enquiry was not resorted to only for
the reason that it would take a long time. His contention in these
circtimstances was that his reversion amounted to reduction in
rank.
That was accepted because it would seem from the facts
that the reversion was from senior time-scale to junior time-scale
of the service. Though both the posts were cadre posts in the
Police Service, the reversion was from the post of the Additional
Superintendent of Police to one of Assistant Superintendent of
Police, the former obviously being a post higher than the latter.
Although both the posts were in the same cadre, promotion from
the junior to the senior time-scale was by seniority. It is clear,
therefore, that appointment of one in the junior time-scale to a
post in the senior time-scale was promotion, and therefore,.
appointment to a higher post. Such is not, however, the position
in the instant case.
Dubesh Chandra Das v. Union of India(") was another decision relied upon by Mr. Nag. The appellant there was the Chief
Secretary of Assam and a member of the Iridian Civil Service.
He was appointed a Secretary in the Union Government, a tenure·
post, the tenure period of which was to expire in July 1969. In
September 1966, he was asked to choose between reversion to
the service of his parent State or compulsory retirement.
He
complained against the order by a writ petition contending that
the order was a stigma and amounted to reduction in raRk,
which, therefore, could not be passed without undergoing the pro·
cedure laid down in Art. 311 ( 2). His appointmeJ;1t as the Secre-
(I) [1964) 4 S.C.R. 598.
(2) A.!.R. 1970 S.C. 77.
J96
SUPREME COURT REPORTS
(1971] 3 'S.C.R.
tary at the Centre was not by way of deputation but was by way
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<>f appointment to a tenure post. This Court held, on an exami-
.nation of the rules, that cadres for the Indian Administraiive Services were to be found in the States only, thiit there were no
cadres in the Government of India, that a few of them were, however, intended to serve at the Centre and when they did so, they
enjoyed better emoluments and better S'latus.
Such an appointB
ment, the Court held, meant promotion to a higher post. In the
circumstances, the order amounted to the appellant's reduction
from a i1igher to a lesser rank. This, again, was a case where the
government servant was reverted from a post higher than the post
of the Chief Secretary, Assam, and not a reduction in the same
time-scale post or deprivation of places in the same time-scale C
post thereby adversely affecting his seniority therein or chances
of promotion.
The decision of the High Court of Orissa in Rupnarain Singh
v. Orissa(') would apparently assist the respondent, for,
the
impugned order there was similar to the one in the instant case.
That order directed that the petitioner, who wa- then serving as a
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forester, be reduced to the lowest scale of Rs. 50/- in the scale of
pay of Rs. 50-2-70 fixed for the foresters. The High Court upheld! the contentions of the petitioner, viz., (1) that the order was
punishment, and (2) that it amounted to reduction in rank within the meaning of s. 240(3) of the 1935 Act and Art. 311(2).
·These conclusions were reached on two premises. The first was
that r. 2 of the Bihar and Orissa Subordinate Services Discipline E
and Appeal Rules in cl. (iii)
provided, amongst others, the
punishment of "reduction to a lower post or time scale or to a
lower stage in the time-scale". Following the decision in Afza/ur
Rahman v. Emperor(') where the Court had observed that in
construing s. 240 of the 1935 Act, the long standing service prac-
·tice based on statutory rules in force Jong before the passing of F
the 1935 Act, and which were continued in force by that Act,
should be considered, the High Court held that the expression
"reduction in rank" in s. 240(3) must also include reduction to
a lower stage in the time-scale as r. 2.(iii) had treated reduction to
a lower post and "reduction to a lower stage in the time-scale" as
·one kind of punishment. Such a reasoning does not apply to the
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present case because r. 16.1 of the Punjab Police Rules makes a
dear distinction between "reduction" and stoppage of increment
or forfeiture of approved service for increment, the two being distinct and separate punishments permissible under that rule. The
second premise upon which the High Court reached the said conclusions rested on the observations in Dhingra's case(•), wherein
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this Court laid down the criterion to judge whether an order is a
(I) A LR. 19;9 Qrissa 167 P.C.
(2) A.LR. 1943 F.C. 18.
(3) [1958] S.C.R. 828.
(
PUNJAB v. KISHANDAS (She/at, J.)
397
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punishment or not by observing that it would be punishment if the
order entailed or provided for forfeiture of pay or allowances or
loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion. The passage relied on
the High Court laid down detenninents for treating an order as
one of punishment and not a test for reduction in rank. As already
B stated, in Dhingra's case(') the impugned order was held to be
one of reduction in rank because the appellant there was reduced
from Class II to Class III service, i.e., from a higher to a lower
post, the time-scales of the two posts being different. The reduction of rank was held not to be a punishment because the appelc
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lant was not entitled to the better post wherein he was merely
officiating and therefore did not visit him with any evil consequences. The observations relied on by the High Court thus
related to the question whether the impl!gned order was one of
punishment and not for deciding whether it amounted to a reduction in rank and were, therefore, not apposite. The basis for the
second premise of the High Court, therefore, was not correct and
therefore cannot ~elp the respondent.
The aforesaid analysis of the decisions leads us to the conclusion that the expression "reduction in rank" in Art. 311 (2) has
to be construed according to the well-established meaning it has
acquired, a~ in the case of the other two expressions, namely, dismissal' and 'removal' in that article, under the various ser1ice rules
and the provisions in that regard in the Constitution Acts of 1915
and 1935. The expression "reduction in rank" in the article,
therefore, means reduction from a higher to a lower rank or post
when imposed as a penalty. Therefore, an order forfeiting the
past service which has earned a government servant increments in
the post or rank he holds, !wwsoever adverse it is to him, aff.ectF
ing his seniority within the rank to which he belongs or his future
chances of promotion does not attract the article.
His remedy,
therefore, is confined to the rules of service governing his post. In
our view, neither Parshotam Lal Dhingra's case( 2 ) nor Rupnarain
Singh's case(3 ) assisted the respondent, as the first does not lay
down what he contended and the , second was not correctly
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decided.
The result is that the State's appeal succeeds and must be
allowed. Consequently, the respondent's suit has to be dismissed.
In the circumstances of the case, however, there will be no order
as to costs.
Appeal aNowed.
(2) [19S8] S.C.R. 828