REGIONAL MANAGER & Anr. v. PAWAN KUMAR DUBEY

BEG, J. This appeal by special leave granted t~ the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Divi sion Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Jncharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an Order dated 20-2-1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973. His juniors, it was found, were still officiating in posts of Senior Station Incharge. The respondent's chances of promo tion were said to be adversely affected by the reason given reversion in the impugned order : that the respondent was "not fit yet" for the higher post. The learned single Judge and the Division Bench in the Allahabad High Court were referred to several decisions of this Court mentioned the Division Bench. These were : State of Bombay v, F. A. ;by F G H • 542 SUPREME COURT REPORTS (1976] 3 S.C.R. A Abraham( 1 India('); ); Champaklal Chimanlal Shah v. Union of Divisional Personnel Officer v. Raghavendrachar("); and State of U.P. & Ors. v. Sughar Singh('). B C D E F G H The Allahabad High Court had followed what it considered to be \ the ratio decidendi of Sughar Singh's case (supra), the last case of this Court available at the time. Special leave to appeal was sought in the case before us on the ground that Sughar Singh's case (supra) had been misunderstood by the High Court and required some elucidation by this Court. Special leave was granted on condition that, in any event, the costs of the respondent will be borne by the appellants. The question to be determined was assumed to be one of law only. The appeal was, therefore, to be heard on the special leave paper book with such additional documents from the record of the case as parties may choose to file. , I<\ We find that, although a number of documents were filed, neither side has chosen to file a copy of the order impugned which has been interpreted by the single Judge as well as by the Division Bench of the -1. Allahabad High Court as one amounting to award of a punishment not merely in the light of the circumstances preceding the order but also from the terms of the order itself and its effect upon the respondent's future. The question, therefore, arises whether we really have before us any point of law of such a nature as to justify interference in ex- ercise of the· exceptional powers of this Court under article 136 of the Con.stitution, • Even though we have come to the conclnsion the question before us is substantially one of fact, we would like to explain a little the law applicable to such cases in view of the submissiola that Sughar Singh's case (supra) had led to some misunderstanding of it. Not much clarification seems necessary so far as conditions for the appli cation of Article 311 (2) are concerned as this question has been con sidered . and decided by this Court in a number of cases including the recent decision by a bench of seven Judges of this Court in Shamsher Singh & Anr. v. State of Punjab C). It was pointed out in that case (at p. 937) : "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the ser vices are terminated it can never amonnt to a punishment on If a probationer is the facts and circumstances of the case. discharged on the ground of misconduct, or, inefficiency, or, for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to removal from service within the meaning of Article 311 (2) of Constitution.'' (1) !19621 (2) Suppl. S.C.R. 92. (3) [19661 (3) S.C.R. 106. (2) [1964](5) S.C.R. 190. (41 [197412 S.C.R. 335. (5) [1975] (I) S.C.R. 314. • REGIONAL MANAGER V. P. K. DUBEY (Beg, J.) 543 Shamsher Singh's case (supra) related to an order of termination A of services of a probationer which, on the face of it, appeared to be innocuous. Nevertheless, this Court, alter examining the facts and circumstances constituting the background of the order and its conse quences, held it to be substantially one of punishment and set it aside It was explain- for a violation of Article 311 (2) of the Constitution. ed there (at p. 837) : "Before a probationer is confirmed, the authority con cerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for In the absence of any Rules governing a proba the post. tioner in this respect the authority may come to the conclu sion that on account of inadequacy for the job or for any temperamental or other reason not involving moral tude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But, in these cases, the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a dhance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and, if his services are terminated without following the provi visions of Article 311 (2), he can claim protection. In Gopi Kishore Prasad v. Union of India A.LR. 1960 S.C., 689, it was said that if the Government proceeded against the proba tioner in the direct way without casting any aspersion on his honesty or competence, his discharge would not have effect of removal by way of punishment. Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer". It was also observed in Shamsher Singh's case (supra) (at p. 838) "The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way o[ (Sec : State of Orissa v. Ramnarain Das punishment. If there is an enquiry, the facts and (1961) 1 S.C.R. 606. circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance (see : Madan Gopal v. State of Punjab (1963) 3 S.C.R. 716). In R. C. Lacy v. State of Bihar & Ors., (Civil Appeal No. 590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry condnct of the probationer in the circumstances of the case was in the nature of preliminary inquiry to enable the Gov ernment to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any . B c D E F G H I \ ;"I I • • A B c D E F G H \ . ,;. -{ • 544 SUPREME COURT REPORTS [1976l 3 S.C.R. cause being assigned could not claim the protection of Article [See: R. C. Banerjee v. Union of India (1964) 311(2). 2 S.C.R. 135]. A preliminary inquiry to satisfy that there temporary was reason to dispense with the services of a employee has been held not to attract Article 311 [see : Champaklal C. Shah v. Union of India (1964 (5) S.C.R. 190]. On the other hand, a statement in the order of tenni- nation that the temporary servant is undesirable has been held to import an element of punishment [See : J agdish Mitter v. Union of India, A.LR. 1964 S.C. 449]'". We think that the principles in valved in applying Article 311 t 2) having been sufficiently explained in Shamsher Singh's case (supra) it should no longer be possible to urge that Sughar Singh's case (supra) Indeed, we do could give rise to some misapprehension of the law. not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to Court could create the impression sometirues that there is some con flict between different decisions of this Court. Even where appears to be some conflict, it would, we think, vanish when the mtio decidendi of each case is correctly understood. It is the rule deduci ble from the application of law to the. facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be siruilar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case similar facts. We have examined the record of the case of Sughar Singh (supra). Our judgment in the case perhaps does not fully bring out the factual background on which the decision of that case was based. In that case, the Government servant concerned had been suspected of making It was not shown how he an alteration in his own service record. coulo possibly have had access to his service record as he was not in charge of the record. One of the alterations made meant an increase in his age so that he would, according to the altered state of the record, have had to retire earlier. Sughar Singh complained, when asked to show canse against the alleged tampering, that it must have been manipulated by his enemies interested in injuring him. It could not be detennined who was responsible for the alterations. Nevertheless, the following adverse entry was made on Sughar Singh's record : "1966-Is suspected to have got entries of date of birth and educational qualifications altered on the authority of a fictitious certificate which had to be corrected later on. Severely warned". . Two years later, as a result of this entry, based expressly on bare suspicion, without further inquiry into the question whether Sughar Singh could be responsible for tampering with the record, a reversion order, innocuous on the face of it, had been made on 12th August 1968. The effect of the reversion order was that Sughar Singh who, • REGIONAL MANAGER V. P. K. DUBEY (Beg, J.) 54 5 reverted from a A apart from this entry, had an excellent record, was post in which he had been officiating from 16th March, 1961, until It was shown that the reversion order dated 12th August, 1968. the cadre / about 200 officers, junior to him, were still officiating in from which Sughar Singh had been reverted to his substantive post of . • Head Co,1stable. No administrative need or exigency could be shown to justify the reversion order. All officers, including Sughar Singh, who had been officiating, had been selected after special training for B the higher cadre. The question, naturally arose : Why was S!ighar ;"I Singh selected for this discriminatory treatment? A single Judge of the Allahabad High Court held, acting on principl\' that a mere reversion, from a post to which the incumbent had no right, did not amount to punishment within the meaning of Article 311(2) so that Sughar Singh had no remedy. He only took C the form of the action into account. No further probe was considered necessary by the learned Judge. When the case came before a Divi- sion Bench, in special appeal, one of the learned Judges agreed with ) the learned single Judge who had dismissed Sughar Singh's petition merely on the ground that Sughar Singh had no right to the post with out considering the impact of the surrounding facts or the background of the order. The other learned Judge, however, carefully examined D the background of Sughar Singh and the reversion order as revealed • by facts on record. He pointed out that the averments of Sughar Singh, that he had a splendid record, apart from the adverse entry in question, and that there was no inefficiency on his part, were not con- troverted in the counter-affidavit filed. This learned Judge found the reversion order against Sughar Singh to be punitive. He, however, added that, even if the order could not be held to be punitive, it was E certainly violative of the guarantee contained in Article 16 (I) of the '11 y- Constitution. When the matter was heard by Verma, C.J., on a reference occa sioned by the difference of opinion between the two learned Judges on the Div isiou Bench, it was again argued that both Articles 16 ( 1) and 311 (2) had been infringed. The learned Chief Justice did not find sufficient material to uphold a violation of Article 16. But, after taking into account the admission of the Counsel appearing State that the sndden reversion of Sughar Singh could not at all be explained or accounted for unless it couJd be linked with the adverse entry, the learned Chief Justice held the action against Sughar Singh to be punitive and violative of Article 311 (2) of the Constitution. Sughar Singh had been held to have been punished for nothing beyond what had taken place two years before the reversion order so that could not have been justly or reasonably connected with the delayed action based upon it. This Court could have dismissed the appeal by special leave solely on the ground that no question of law arose on the finding of fact, also upheld by this Court that Sugh•ar Singh was puni shed, in substance, so that Article 311 (2) was attracted. This Court's judgment in Sughar Singh's case (supra) shows that it was only following the law on Article 311 (2) of the Constitution as It specifically referred to laid down repeatedly earlier by this Court. F G H A B c D E F G H 546 SUPREME COURT REPORTS [1976] 3 S.C.R. India v. Jaswan Ram the State of Bihar & Ors. v. Shiva Shukshuk J \ the following cases : Purshotam. Lal Dhingra v. The Unioll of India('); State of Punjab & Anr. v. Sukh Raj Bahadur('); State of Onssa v. Ram Narayan Das( 3 ); B. C. Lacy v. State of Bihar('); Jagdish Mitter v. Union of India('); A. G. Benjamin v. Union of \ India("); Ram Gopal Chaturvedi v. State of Madhya Pradesh('); Union of India v. Gajendra Singh('); Divisional Personnel Officer v. Raghavendrachar (supra); Union of ("); Madhav v. State of Mysore('"'); State of Bombay v. Abraham (supra),. In Sughar Singh' s case, this Court summarised the propositions of Jaw deducible from the cases mentioned above; and, while considering the applicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive. Nevertheless, on a total consideration of all the facts, including 'the admission in the High Court before Verma, C.J., by the Standing Counsel appearing on behalf of the State, that the reversion order could not be explained except as a result of the adverse entry made two years earlier, it had finally applied ratio decidendi of Mishra(''), where this Court had affirmed the opinion of the High Court, on facts, that the "reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the plaintiff and by way of punishment him". On this view of the case, it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary • to the provisions of Article 16 also. Nevertheless, this Court held there, alternatively, after referring to State of Mysore v. P. P. Kul- karni ( "), that the action taken against Sughar singh also resulted in a violation of the provisions of Articles 14 and 16 of the Constitution. It seems to us to be clear, after examining the record of Sughar Singh'.> case (supra), that what weighed with this Court was not only that there was a sufficient "element of punishment" in reverting Sughar Singh for a suppo.sed wrong done, from which the order of reversion could not be divorced, so that Article 311(2) had to be complied with, but, there was also enough of an impropriety and unreasonableness in the action taken against Sughar Singh, solely for a very stale reason, which had become logically quite disconnected, to make out a case of "malice in law" even if it was not a case of "malice in fact". If an authority acts on what are justly and logically viewed, extraneous grounds, would be such a ~ase. All these aspects of the case were kept in view by this Court when it recorded the conclusion : .~· I"\ '1' "oi I "In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be (l) [19581 S.C.R. 828. (4) C.A. No. 590of1962decided on 23-10-C>3. (3) [1961](1) S.C.R. 606. (6) C.A. No. 1341 of 1966 decided 0n 13-12-66. (5) A.LR. 1964 S.C. 449. (7) [19701(1) S.C.R. 472. (8) [1972j(3) S.C.R. 660. (9) A.LR. !958 S.C. 905. (10) A.l.R. 1962 S.C. 811. (JI) (1971](2) S.C.R.191. (12} A.l.R.1972 S. C. 2170. (2) [1968] (3) S.C.R. 23. • I • ! ... .. REGIONAL MANAGER V. P. K. DUBEY (Beg, J.) 547 liable to be quashed on the ground of contravention of Articles 14 and 16 of the Constitution". A'> We do not think that Sughar Singh's case, in any way, conflicts with what has been laid down by this Court previously on Article the Constitution. We 311 (2) of the Constitution or Article 16 of would, however, like to emphasize that, before Article 16 is held have been violated by some action there must be a clear demonstra- ti on of discrimination between one Government servant and another. similarly placed, which cannot be reasonably explained except on an assumption or demonstration of '"malice in law" or "malice in fact". As we have explained, acting on a legally extraneous or obviously' misconceived ground of action would be a case of "malice in law". Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, arc unaffected by C Sughar Singh's case (supra). They arc not vitiated merely bccaJsc son1e other Government servants juniors in the substaO.tivc rank; have not been reverted. B: This Court has held in S. C. Anand v. Union of India('}, that no question of applying Articles 14 or 16 could arise where a termina- tion of service takes place in terms of a contract of service. Again, in n' Champaklal Chiman Lal Shah (supra), this Court held that the motive behind an order of termination of service, in accordance with terms of a contract, would not be really relevant even if an enquiry had been held to decide whether proceedings under Article 311 (2) shouldi be instituted or the services of a Govenunent servant terms of his contract. Champaklal Chimanlal Shah's case (supra I w'1S noi one in which any question of mala tides arose. Article 16 was claimed there on the ground that Rule 5, prov[ding for termination of services of temporary servants, was itself hit by Article 16. Such a contention was repelled. On the other hand, Kulkami's case (supra), relied upon in Sughar Singh's case (supra), was one in which "n1isuse of power" or detourne111ent de puvoir'' (as it i:-; called in French Administrative law), had been proved. Another term for >Uch use of power for an improper object is "malice in law". Protection of E terminated F We repeat that, before any such case of ''.malice _in law". can be accepted, the person who alleges it must sat1sfactonly establish 1t 011 proved or admitted facts as it was in Ku/karni's case (supr~). Whe_re the allegations are of malice in fact, which arc generally senously dis puted, and the case cannot be satisfactorily decide~ without a detail~d G adduction of evidence or cross-examination of witnesses, Courts will leave the party aggrieved to an ordinary civil suit. This rule, relating to exercise of discretionary powers under Article 226, is also well settled. • We have tried to gather, from such materials on the record of the case before us as have been made available to us by the parties, the "spirit and substance", to use the expressions employed by this Court in Champaklal' s case (supra) , of the action taken against the contest, ~----- - -~--~ (1) A.J.R. 1953 S.C. 250. \ v\ -{ .. 54 8 SUPREME COURT REPORTS (1976] 3 S.C.R. ing re?pondent. We have examined the background of the order of rev~rsm~. W. c find that, on the one hand, there is fulsome praise, in tes!Imomals given to the respondent by his superior officers for meri torious work done by ~im. On the other hand, we find th~t, preced mg the order of reversmn, passed on 20th February, 1973, against the respondent, there 1s a spurt of warnings and very vague complaints and adverse remarks of 30th September, 1972, and 4th October, l 972, 21st October, 1_972, and 25th Janua'.y, 1973, presuma~ly all by a particular supenor officer, allegrng disrespect shown, disobedience to •Orders given, and aspersions said to have heen cast by the respondent respondent was against the conduct of the superior officer. The warned by this superior officer, an Assistant General Manager, by a letter dated the 4th October, 1972. T'here is also a copy of an order on a complaint against the respondent that the respondent had inisused the June, 1970, services of a Chowkidar. The detailed order of 2nd shows that, although, the complaint was dismissed by the General Manager, yet, he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be "sweet tempered". There were some old adverse entries also to have been against the respondent. But, they must be deemed washed off by orders of his promotion, on an "ad hoc" or officiating basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, It appears that the respondent had 1972, as required by the rules. asked for particulars to meet the vague allegations of insubordinatiou and disobedience which had found their way into his service record It bas not been shown that the respondent was for 1972 to 1973. supplied with these particulars. He professed ignorance of occasions on which be bad been disrespectful or of existence of any orders which had been disobeyed by him. These particulars could have been easily supplied to him if the allegations against him were justified The respondent's representation against the last adverse entry, of the kind indicated above, made on 25th January, 1973, was pending when the reversion order of 20th February, 1973, was passed. His allega tions that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted. In these respects, the facts of the Jn addition. ~ase are similar to those of Sughar Singh's case (supra). as the High Court points out, the express condemnation of the respon dent as "not fit" for the higher post, in which bis juniors were allowed to officiate, categorises him as inferior to his juniors even if it \Vas· qualifie.d by the addition of the word "yet". The only possible justi fication which could be offered for this discriminatory treatment were the sudden adverse entries of 1972-73 against the respondent which were quite vague. If there bad been anything really serious against the respondent, proceedings under Article 311 (2) of the Constitution should have been substantial Indeed, they can still be taken if there are instituted. grounds against the respondent. qn the ~ther hand, if t~e ~ction against him is due merely to a feclmg of pique or anger with him on ihe part of his superior officers, to which the respondent's tactlessness • .B JE F G H REGIONAL MANAGER v. P. K. DUBEY (Beg, J.) 54 9 Indeed, even the bona fides of the may have contributed, it did not deserve anything more than the warn ings and the adverse entry. adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based. To allege such misconduct against him and then to stigmatise the respon dent as "not fit" for working in the higher post could appear, on the facts and circumstances of the particular case, to be more vindictive than just and fair. It may mar or delay his chances of promotion in future. We, however, refrain from commenting further on what may If or may not have been the real cause of the respondent's reversion. the respondent is really unfit or inefficient, as compared with his juniors, there is no reason why, on a comparative assessment of merits, at a time when such assessment may be called for under rules (there should be rules on the subject if there are none so far) , his juniors in service should not be preferred over him. A decision given after fair comparisons with records of others officiating in fame cadre would have ensured that no violation of Article 16 place. The sudden reversion of the petitioner, for the reason given in the reversion order, could be held to amount to an unjustified stigma which could not be said to be "devoid of an element of punishment''. c D As we have indicated, there is no magic formula or uniform set of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action. inoffensive It is, however, well established that even an apparently order may fail to pass tests imposed by Articles 16 and 311 of Constitution. Dealings of superior officers with their subordinates in Government service in a Welfare State must be shown to be based on fair-play and reason when facts arc actually proved which indicate that these requirements may be Jacking. E F Even if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Consti tution. The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules It did not give the respondent any other or conse of natural justice. quential relief. And, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respon dent if there is really a substantial case against him deserving punitive action . As we are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of G H • 1 550 SUPREME COURT REPORTS (1976] 3 S.C.R. ·A :B the respondent and others who may be eligible to officiate in the post of a Senior Station lncharge, or, to take disciplinary proceedings, considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary lo ruics of natural justice embodied in Article 311 (2). It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a tind ing. This, we think, was also the position in Sughar Si11gh's casr (supra). This appeal is dismissed with costs. V.P.S. A ppeai disn1issed. -{ •