TaxTMI 
TaxTMI 
1963 (6) TMI 39
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....Police and placed on the list of Inspectors fit for promotion to the rank of Assistant Commissioner and was eventually appointed Assistant Commissioner of Police on 7-5-1948. The petitioner passed the Departmental Examination in higher standard and the result was declared by the Public Service Commission in May 1949 and published in the Calcutta Police Gazette, on 22-6-1949. On 8-2-52 the petitioner's name was included by a Selection Board in the list of officers fit for confirmation in the rank of Assistant Commissioner of Police. On 30-1-1954, the petitioner was appointed to act as Deputy Superintendent of Police, Enforcement Branch, Midnapore and the petitioner joined the same post on 10-2-1954. 2. On 24-7-1954 the petitioner was informed by a letter that he had been reverted to his substantive post of Inspector of Police with effect from 9-7-1954 on the ground that he was unsuitable for promotion to the post of Assistant Commissioner even on an officiating basis. His name was also struck off from the list of Inspectors fit for promotion to the rank of Assistant Commissioner. The petitioner challenges the above order on the following grounds: (a) The petitioner&#....
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....ide page 21 of Annexure A to the petition). Though the word 'Officiate' is not used in the Gazette notification at p. 21 of the Annexure it is admitted that it was an officiating appointment. On 30-1-1954 he was transferred from the Calcutta Police to the West Bengal Police by an order of the Government which is at p. 24 of Annexure A and runs thus: "The Governor is pleased to appoint Sri Earn Chandra Choudhuri, Assistant Commissioner of Police, Calcutta, on leave, to act, until further orders as Deputy Superintendent of Police, Enforcement Branch, Midnapore, with effect from the date of his joining the post. By order of the Governor. S. N. Ray, Chief Secy, to the Govt. of West Bengal. Copy forwarded to the Accountant General, West Bengal for information in continuation of this Department endorsement............ The transfer is made in the public interest". 7. When the impugned order of reversion was made in July, 1954, the petitioner was thus holding the post of Deputy Superintendent of Police in the West Bengal Police Cadre. The order of reversion which was issued by the Under Secy, of the Home Department by his letter No. 3....
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....Inspector-General of Police, West Bengal, for information and communication to the officer concerned." 9. Petitioner's case is that the aforesaid order of reversion amounts to a 'reduction in rank' within the meaning of Article 311(2) of the Constitution so that the order is void because no opportunity to show cause against such order was given to the petitioner, as required by that provision. The petitioner has, no doubt, been demoted to a lower post from a higher one by the impugned order. But it has been established by decisions of the highest authority that a mere reduction in the physical sense is not sufficient to attract the operation of Article 311(2); what is required is that such degradation must be by way of penalty. 10. It has been urged on behalf of the petitioner that the impugned order operates as a penalty for several reasons: (i) That it has been made on the ground of alleged unsuitability of the petitioner for the higher post; (ii) That it disqualifies the petitioner from holding -the higher post even on an officiating basis and thus debars him from any prospects of a better career for ever; (iii) That by striking off t....
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....version is immaterial in such cases; in other words, Article 311(2) is not attracted where an employee is merely reverted from his higher officiating post to his substantive post (Madhav Laxman v. State of Mysore, [1962]1SCR886 even though the motive or ground for such reversion be misconduct, inefficiency, unsuitability or the like ((1963)IILLJ422SC Ibid). (ii). But even in cases of such reversion, that is, where the employee had no substantive right to the post or rank from which he has been reverted, Article 311(2) may be attracted if an additional factor is present, namely, that besides the physical degradation or reversion to the lower post "the order for reduction also visits the servant with any penal consequences" (p. 49. Ibid) ). On this point also, it is to be noted that in some earlier cases, (e.g., Balai v. N. Kay Choudhury, AIR1954Cal495 , Bhojraj v. Saurashtra Government, AIR 1952 San 40 (42) ) it was supposed that in order to attract Article 311(2), an indispensable condition was the intention or motive of the superior authority to punish the employee for some misconduct. This condition has not been approved by the Supreme Court in Parshott....
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....nnot succeed merely because the reversion has been ordered on the ground of his unsuitability to the higher post of Assistant Commissioner, but that he may succeed if he can show that the impugned order has entailed any penal consequence other than mere reversion from the officiating higher post. For that, we must turn to the other points taken on behalf of the petitioner. (II) It has been seen from the passage just quoted from the decision in Purshottam's case. (1958)ILLJ544SC (p. 49, ibid) that one of the penal consequences which their Lordships envisaged as sufficient to attract Article 311(2) was: 'The stoppage or postponement of his future chances of promotion." According to the petitioner, the impugned order has the above effect inasmuch as it conveyed the decision of the Government that the petitioner: "Is unsuitable for promotion to a post of Assistant Commissioner of Police even on an officiating basis." The test which is to be applied in order to find whether a person's future chances of promotion have been affected has been formulated by Sinha, J. in Dhajadhari v. Union of India, (1958)IILLJ392Cal , and I ....
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.... the petitioner has been formally struck off from List II i.e., the list of Inspectors considered fit to officiate as Commissioner of Police (as happened in the case of Dineshwar v. Chief Commercial Superintendent, Eastern Rly., AIR1960Cal209 because the terms of the impugned order are, unmistakably of the same effect and this is substantiated by the fact that the petitioner has never again been considered fit to officiate as Assistant Commissioner during the next four years he was in service before Superannuation. In my opinion, the impugned order is attended with a penal consequence within the meaning of the dictum of Parushottam case, (1958)ILLJ544SC and is, accordingly, void for non-compliance with Article 311(2) of the Constitution. III. On receipt of the impugned Government order which was contained in the letter No. 392-GAC./9-7-1954 addressed to the Commissioner of Police for implementation and communication to the petitioner, the Commissioner of Police forwarded the order at p. 26 of the Annexure, reproduced earlier. In this order, the Commissioner not only reproduced the contents of the Government order but added the following : "His name i....
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....resent sub-head. IV. Incidentally, it may be pointed out that there is another aspect from which the impugned order of the Government visited the petitioner with a penal consequence in addition to mere reversion, namely the loss of his emoluments for the post of Assistant Commissioner or Deputy Superintendent of Police (i. e., in the higher post) at least for the period between 9-7-1954 and 19-7-1954. It has been laid down both in Parshottam's case, (1958)ILLJ544SC (ibid) and in Union of India v. Jeewan Ram, AIR1958SC905 that loss of emoluments already earned by past service is a 'penal consequence' which would attract Article 311(2). In the case before me, though the order of reversion made by the Government, dated 9-7-1954 did not direct the reversion from any date prior to 9-7-1954 the Commissioner of Police, by his order dated 19-7-1954, did direct that the revision shall have effect from 9-7-1954 and from the petitioner's affidavit it appears that this order was actually communicated to him on 24-7-1954. It is also striking that the Inspector General, in pursuance of the above communication from the Commissioner of Police, by an order of his own dated ....
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....uirement of Article 166(r) of the Constitution has not been complied with. (ii) Of course, there are decisions to the effect that every executive action of the Governor need nut be expressed in the shape of a formal order. But it can hardly be contended that an order of dismissal, removal or reduction in rank which affects the legal rights of an employee which have even secured constitutional protection under Article 311, can be made by an inter-departmental correspondence. In Ghaio Mal's case, [1959]1SCR1424 (ibid) the question was whether a valid order granting a licence could be made on behalf of the Chief Commissioner of Delhi through an inter-departmental letter issued by the Under Secretary. The answer was in the negative and the Court concluded (p. 1439 of SCR) : (at p. 71 of AIR) that there had been no valid order granting a licence in the eye of law. The decision in Dattatreya y. State of Bombay, 1952CriLJ955 was referred to in support of the contention that though the letter did not purport to be made in the name of the Chief Commissioner, extraneous evidence could be adduced to show that the order had in fact been issued by the Chief Commissioner. It was hel....
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.... be delegated by the Minister. There is no statutory requirement of satisfaction in the case before me. On the other hand, there is no order expressed in the name of the Governor at all. The question in the case before me falls within the purview of the decision in Ghaio Mal's case, [1959]1SCR1424 . Hence, it is of no avail, to uphold the impugned letter as an order of the Governor, even if the Rules of business of the standing orders made thereunder empowers the Chief Secretary to dispose of the master without placing it before the Minister. In my opinion, the impugned order fails for contravention of Article 166(1) of the Constitution. 13. Point (3). Conscious as I am that a plea of mala fide rarely succeeds I find that in the present case, the circumstances attending the impugned order are glaring enough to substantiate the allegation. it is commonplace to state that mala fides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes: (T) that the authority making the impugned order did not apply its mind at all to the master in question (Vide L. J. J. D'Souza v. State of Bombay, 1956CriLJ935 ; or (ii) that the....
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....itself against a wrongful or illegal act on the plea that it was done on the advice of the Commission even though it may have to explain before the Legislature where it acts contrary to the advice of the Commission. It cannot blindly act upon the advice of the latter, without applying its own mind to the matter in question. But that is what appears to have been done by the Government of West Bengal in this case, There is not the least of doubt that the petitioner would not have been reverted if the Commission had not given its advice to that effect. The reason is that the Government had prior to that advice more than fully considered the question of suitability of the petitioner who had also, on his part, complied with the requirements for promotion to the higher rank under the Departmental rules and regulations in force. (a) So far as the Departmental requirements are concerned, it is admitted in the counter-affidavit of the Under Secretary, dated 4-4-55, that the petitioner was first considered fit for promotion in an officiating capacity, (para 5) by a Selection Board consisting of the Commissioner of Police and the Deputy Commissioners of Police. These are the Depar....
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....the merits, so as to act as another super-advisory body to the Government. But where a charge of mala fides has been brought it is the duty of this Court, exercising the constitutional writ jurisdiction, to see whether the recommendation of the Commission was prima facie arbitrary or without foundation or whether the Government when it accepted the recommendation of the Commission, applied its own mind to the merits of the petitioner's case and the views so long entertained by itself in the matter. In the foregoing background it is natural to inquire whether the Commission came to a contrary view upon the same materials as were before the Government, or the commission had before it any additional materials. In para 12 of the counter-affidavit filed by Suhas Ranjan, it had been stated that the Commission was asked to give its opinion with reference to the service records of the officers whose cases were sent up. Notwithstanding this, I was anxious to learn from the respondents if there was any other materials or consideration upon which the Commission, an independent body, might have been induced to hold a contrary opinion. The letter received by the Home Department from the ....
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.... that which had influenced the Selection Board to approve the petitioner for confirmation and for the Government to accept that recommendation in placing the petitioner in List T, prior to the transmission of the petitioner's case to the commission, which it should be noted, did not take place on the initiative of the Government but upon the insistence of the Commission, suo motu (vide Commissioner's letter No. 8090 PSC/ 17-11-1953 addressed to the Chief Secretary, and para 12 of the counter-affidavit of Suhas Ranjan that all cases of such temporary and officiating promotions mast be referred to them). Let us now consider the action taken by the Government on receipt of the commission's recommendation that the petitioner should be reverted to his substantive rank (No. 539/P. S. C./30-1- 54)- In para 16 of the counter-affidavit of Suhas Ranjan is unequivocally stated : - "It is because the Commission advised that the petitioner was riot fit for the post of Assistant Commission that the order for his reversion as Inspector of Police, Calcutta was passed." The Government did not refer back the case of the petitioner to the Commission for a reconsideration, p....
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....ding performance" and for which he received "the Government of Punjab commendation certificate". He also received the "President of India" Sanad and Silver Medal "for his excellent work in the Census of 1951". Shortly thereafter we find that the appellant was reverted." Similar observation can well be made in the case before me. Further, the fact that Government came to a contrary conclusion about the petitioner's suitability for the higher rank after he had already served in that rank with credit for a long period of over five years (during which period he has earned six increments) simply because the Commission held a contrary view on the same materials is another circumstance showing that the Government did not apply its mind to 'the order of reversion they made. The charge of mala fides becomes stronger against the Government the larger the time lag between an order of officiating appointment and the order of reversion, particularly where the service record of the officer is remarkable. In my opinion, these circumstances go to establish mala fides on the part of the Government, in the light of observations of the Supreme Court; just quoted. II. There is another....
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....ommissioner, which was the post held by the petitioner in an officiating capacity when that reference had been made and this was the question answered by the Commission in the negative, by their letter of 30-1-54, addressed to the Home Secretary. The latter took some six months to come to his decision. In the meantime, by order dated 30-1-1954 (P. 24 of Ann. A, which has already been reproduced at pp. 3-4 (para 6 --Ed.) of this judgment), the Governor had appointed the petitioner "to act, until further orders, as Deputy Superintendent of Police, Enforcement Branch, Midnapore." The post of Deputy Superintendent is a post held in the Bengal Police Cadre under the Inspector-General, West Bengal, while the post of Assistant Commissioner is a post in the Calcutta Police Cadre under the Commissioner of Police. In July, 1954, when the order of reversion was made by the Government, the Petitioner was still in the Bengal Police, acting as Deputy Superintendent of Police. He was not recalled to the Post of Assistant Commissioner, for the purpose of issuing the order of reversion. He was reverted to the post of Inspector in the Bengal Police Cadre and in that Post he remained unti....
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....ioner it has been vehemently argued that the order of appointment as Deputy Superintendent (Vide p. 4 ante --(Para 6 -- Ed.) ) nowhere stated that it was as officiating appointment and that it was really a permanent appointment. Of course, it has not been described as an 'officiating' appointment, but the words "to act until further orders" do not constitute a permanent tenure but only a temporary appointment. As explained in Parushottam's case (1958)ILLJ544SC (ibid) the case of a temporary appointment differs little from an officiating appointment because in neither case has the employee any substantive right to the higher post or rank to which he is appointed in a temporary or officiating basis. It is, therefore, not correct to urge that there could not be any reversion from the post of Deputy Superintendent to which he had been appointed on 30-1-1954. The real question for determination is whether the reversion from that appointment could be taken, in law, as a natural sequence of the reversion from the post of Assistant Commissioner. (ii) The contention on behalf of the respondents that the post and rank of a Deputy Superintendent is equivalent to ....
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.... above power, for the following reasons: (i) The order (vide p. 4, ante) dots not speak of 'employment' in terms of the statute but of 'appointment'. The endorsement to the Accountant General describes it as a 'transfer'. (ii) From the Confidential report No. 16. (quoted earlier), it is evident that the transfer to the West Bengal Police was ordered as a 'penalty' in view of some inquiries or remarks made by the Anti-Corruption Department. That some such thing was operating in the mind of the authorities is evident from Annexure A p. 29, by which he was ordered to be posted at some station "away from predominantly industrial or railway areas". These are not matters pertinent to the application of Section 3 of the above Act. (iii) As referred to earlier (vide Ann. O) his pay etc., after the transfer was allowed not on the basis of his membership of the Calcutta Police but on the basis of membership of the West Bengal Police, and the petitioner had to make a representation (Ann. P), complaining of his losses. (iv) The petitioner remained in the West Bengal Police until the date of his superannuation in 1958 and the o....