S. P. VASUDEVA v. STATE OF HARYANA & Ors.

6. Mr. G. L. Nanda, M.P. and Chairman, . Kurukshetra Development Board.

7. The Secretary, Kurukshetra Development Board.

8. Mr. Pritam Singh Jain, Advocate.

9. Mr. H. V. Goswami, Deputy Commissioner, Kamal.

10. The Office Superintendent, Dy. Commissioner's Office, Kamal.

11. The Chief Engineer, P.W.D., Irrigation Works, Har yana, Chandigarh. The appellant alleged in the writ petition that the order of reversion \Vas the outcome of a conspiracy of respondents No. 2, 4, 5, 7, 8 and 10. The circumstances which led to his reversion seem to be as follows: There was a writ petition No. 707 of 1972 against Kurukshetra Development Board of which Mr. G. L. Nanda, M.P., was the Chairman. The appellant sent a report to Mr. Nanda mak ing insinuations against certain officers including the Secretary of the Kurukshetra Development Board. He also went and met Mr. Nanda ,, . • • A B c D E G H A B c D E F G H 186 SUPREME COURT REPORTS [1976] 2 S.C.R, in person without the directions or the permission of the Deputy Com missioner of Kamal under whom he was working. The Deputy Advo vate General wrote to the Secretary of the Law Department that appellant's work was not only perfunctory but below average. There upon the Secretary spoke to the Deputy Commissioner, Kamal to find out his views about the performance of the appellant and the Deputy Commissioner told him that he was dissatisfied with the work and per formance of the appellant. It is on these grounds that the reversion was made. \ In his counter affidavit the Secretary of the Law Department stated that the appellant had been reverted on account of his poor perfor mance as Legal Assistant and denied the allegation of conspiracy made by the appellant. The Advocate General filed a counter affi davit denying that the appellant had brought to his notice the damag ing portion of the counter-affidavit filed on behalf of Mr. Nanda in writ petition No. 707 of 1972. Mr. Lamba, Deputy Advocate Gene ral denied that the impugned order was made on the basis of his per sonal grudge against the appellant. The main allegation which the appellant made in respect of the counter-affidavit filed by Mr. Nanda was that the counsel fQr the Board, that is, Mr. P. S. Jain, and Secretary of the Board had colluded to the detriment of the Board in submitting the counter-affidavit. The Deputy Advocate General in his counter affidavit has quoted a portion of the counter-affidavit pre pared by the appellant in that writ petition which undoubtedly shows the appellant's poor knowledge of law. The Deputy Advocate Gene ral seems to have felt that the appellant was unnecessarily running to Mr. G. L. Nanda and without rhyme or reason criticising the countcr affidavit and making allegations against Mr. P. S. Jain, counsel for the Board and the Secreary of the Board, and that he was acting beyond the scope of his activities as a Legal Assistant in the office of the Deputy Deputy Commissioner, Kamal and was over-reaching Commissioner. The appellant was appointed on an ad hoc basis. It may not be a correct use of the phrase 'ad hoc' because he was not appointed for special or particular purpose, ·so that it could be said that till that pur- . pose was over he could not be discharged. The phrase seems to have been used in the sense of 'temporary'. Whether the appointment of the appellant was ad hoc or temporary it is clear that he had no right to the post from which he was reverted. The allegation of conspiracy or grudge has clearly not been made out nor was it pressed before us. What was urged was that even temporary Government servants are entitled to the protection of Article 311 if the order of reversion was passed against them as a measure of punishment. We are s~tis­ fied that in this case the order was not meant as a measure of pumsh ment. It was passed on the ground that the appeI!ant was unsuitable for the post. We have already referred to the fact that the countcr affidavit prepared by the appellant showed a very poor knowle?gc of law on the part of the appellant. We agree with the content10n of the Deputy Advocate General in his counter-affidavit • ... s. P. VASUDEVA v. HARYANA (Alagiriswami, J.) 187 appellant was unnecessarily running to Mr. G. L. Nanda and was over-reaching the Deputy CoDllllissioner. The appellant was only an Assistant to the Deputy Coilllllissioner and he had no business to go and see Mr. Nanda without either the Deputy Commissioner's in structions or his permission. The Deputy Advocate General states that the appellant made, reckless allegations against the Secretary of advocate Mr. Jain the Kurukshetra Development Board and its because after checking up with the records he did not find anything wrong with the counter-affidavit already prepared in the writ petition No. 707. The Depu~ Advo.cate General took the view appellant's work was not only perfunctory but below average. The Deputy Commissioner also was dissatisfied with the appellant's work and performance. The appellant's reckless allegation of a conspiracy amongst respondents No. 2, 4, 5, 7, 8 and 10 throws a flood of light on his mentality. We are not surprised that the authorities concerned did not consider the appellant fit and proper person to be continued in service. We may in this connection point out that where a!l order of reversion, as in the present case, of a person who bad· no right to the post, does not show ex facie that he was being reverted as a measure of punishment or does not cast any stigma on him, th.i: Courts will not normally go behind that order to see if there were any moti vating factors behind that order. Certain cases of this Court have taken that view. Certain other cases have taken the view that is open to the Court to go behind the order and find out if it was intended as a measure of punishment and if so whether the formalities necessary have not been followed. In cases where enquiries have been held before orders of reversion of a probationer to his former lower post or discharge of a probationer or discharge from service of a temporary servant were passed, certain decisions have taken the view that where the enquiry was held in order to find out suitability of the official concerned the . order would not be vitiated. ]n certfan other cases it has been held that the enquiry was held with a view to punish and as the enquiry did not satisfy the requirements It appears to us that this of Article 311 the punishment was bad. theory as to whether the reversion to a lower post of a probationer in a higher post, or the discharge of a probationer, or the discharge from service of a temporary servant was meant as a punishment leads to a very peculiar situation. After all, if such an order gives no reasons the Court will not normally interfere l;>ecause ex f acie there is nothing to show that the order was intended as a punishment. But if the superior· official dealing with that case, in order to satisfy himself whether the official concerned could be continued in service, makes enquiries or holds enquiries there is the risk of its being held that the enquiry was really intended for the purpose of punishment. 'Thus a bona fide attempt to decide whether the official concerned should be continued leads to this risk. There could be no greater punishment than discharge from service and it makes little difference to llie Government servant whether he is simply discharged or dis tha.rged after an enquiry to ft11g 9\It bis suitability. Therefore, if a A B c D E F G H 188 SUPREME COURT REPORTS [1976) 2 S.C.R. A B c simple discharge from service is upheld but a discharge after the superior official concerned satisfies himself about the official's fitness to be continued further in service is not upheld on the ground the order was intended as a punishment it is a curious situation. After all no Government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, without any rhyme or reason. If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simpliciter and which is by way of punishment. The whole position in law is rather confusing. We think it is time that the whole questiodn was considered de nova and it would be better for all concern- ed an avoid a lot of avoidable litigation if it should be held that the reversion of a probationer from a higher to a lower post, or the discharge of a probationer, or the discharge from service of a tempo- rary servant cannot be questioned except on the basis of mala fides in the making of the order. This Court will not be burdened with a lot of work of a kind about which the feeling of almost al! the Judges has been that it is better that they do not come to this Court. The appeal is dismissed without costs. S.R. Appeal dismissed. • " ~ '. • • ..