JUDGMENT 1. THIS appeal is at the instance of the plaintiff and it arises out of a suit for declaration, permanent injunction and recovery of money. 2. THE appellant was a Driver, grade 'b' in the Eastern Railway. In november 1963 he stood first in a selection test held by the Selection Committee of the Eastern Railway. In april 1964 he was promoted in an officiating capacity to the post of Driver, grade 'a' which is a selection post. On May 23, 1964, while the appellant was driving the 11 UP Delhi express from Jhanja to Moghulsarai, the engine failed near Kiul due to fusion of the lead plug of the engine and the train stopped. On May 25, 1964 he was pull under suspension by the Loco Foreman, Jhanja as per an alleged order of the Divisional Mechanical engineer (P), Danapur. On june 1, 1964 he was served with a charge-sheet issued by the Assistant mechanical Engineer (P) calling upon him to show cause why the penalty of reduction to a lower service, grade or post or to a lower time scale or to a lower stage in the time scale should not be imposed for the failure of the engine due to fusion of the lead plug near kiul. On June 2, 1964 he submitted his explanation to the charge-sheet stating that the engine stopped for no fault of his, but due to mechanical failure. No enquiry was held on the said charge, but by an order dated june 25, 1964 of the Divisional Mechanical engineer, the appellant was reverted to Grade 'b' on the ground of his unsatisfactory working in the officiating capacity. On July 3, 1964 the divisional Mechanical Engineer by his order warned the appellant for the failure of the engine and it was directed that recurrence of such offence would be viewed seriously. 3. ON July 4, 1964 the appellant was put back to duty and on August 2, 1964 he was transferred to the post of a Motorman in the Sealdah Division of the Eastern Railway which is a post on the cadre of Driver, Grade 'b'. His name was struck out from the panel constituted by the Selection Committee for promotion to the cadre of driver, Grade 'a' on the basis whereof, he was promoted. 4. His name was struck out from the panel constituted by the Selection Committee for promotion to the cadre of driver, Grade 'a' on the basis whereof, he was promoted. 4. THE appellant preferred an appeal against the order of reversion to the Chief Personnel Officer, who inter alia passed the following order on november 23, 1965 : - "in reference to this appeal Sri dutta may please be advised that since he was reverted from the post of driver, Grade 'a' on account of inefficiency he cannot be re-promoted to the post based on his earlier panel position. He will have to appear again in a selection for the post of Driver Grade 'a', when next held. " It is contended by the appellant that the said order of reversion was passed by way of punishment without any enquiry in the disciplinary proceeding and without affording any opportunity to him to show that the failure of the engine was not due to his negligence or inefficiency but due to mechanical fault. It is further contended that the said orders including the order of suspension are illegal and that by virtue of the said illegal order of reversion he has been made to suffer financial loss, namely, loss of salary and other allowances and loss of increments and promotions which he would have been otherwise entitled to. It is alleged that during the period of suspension he was given only the subsistence allowance and not his salary. On the aforesaid allegations, he has prayed for a declaration that the said orders of suspension, reversion and warning are illegal and void and not binding upon him, for a permanent injunction restraining the respondent, union of India representing the Eastern railway from enforcing the said orders and for recovery of a sum of Rs. 100/-and/or any amount that the court may assess on proper account being taken, as payable to him. He has undertaken to pay the deficit court fee on the excess amount that may be decreed. The respondent, Union of India contested the suit and its defence was inter-alia that the order of reversion or the order of warning was not a penalty. The appellant was holding an officiating post of Driver, Grade 'a' and that, accordingly, he had no right to that post. The respondent, Union of India contested the suit and its defence was inter-alia that the order of reversion or the order of warning was not a penalty. The appellant was holding an officiating post of Driver, Grade 'a' and that, accordingly, he had no right to that post. The reversion of the appellant to the post of Driver, Grade 'b' was not reduction in rank nor was it a penalty. 5. THE learned Judge, Second bench, City Civil Court, Calcutta, came to the finding that the appellant was holding an officiating post of Driver, grade 'a' and that the promotion to that post was a temporary one. He hold that the administration had every authority to revert the appellant to his original and substantive rank without assigning any reason and that, as such, his reversion to the post of Driver, grade 'b' did not amount to reduction in rank. Relying on the decision, of the Supreme Court in Parshotam Lal dhingra v. Union of India A. I. R. 1958 s. C. 36, he held that the order of reversion did not visit the appellant with any penal consequences so as to attract the provision of Article 311 (2)of the Constitution. He also took the view that mere warning was not a penal order so as to bring it within the meaning of "censure" which is a minor penalty. Upon the said findings, the learned judge dismissed the suit. Hence, the appeal. 6. IT is not disputed that the appellant was selected for promotion to the post of Driver, Grade 'a' which is a selection post, in a test held by the selection Committee in accordance with the rules. The appellant stood first in the test and he was promoted to the post of Driver, Grade 'a' in an existing vacancy. The promotion was an officiating promotion. The principal question which arises for consideration is whether the reversion of the appellant from the post of Driver, Grade 'a' to the post of driver, Grade 'b' was made by way of punishment. In Dhingra's case referred to above, S. R. Das C. J. in delivering the majority judgment observed as follows: "a reduction in rank likewise may be by way of punishment or it may be an innocuous thing. In Dhingra's case referred to above, S. R. Das C. J. in delivering the majority judgment observed as follows: "a reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has right to to a particular rank, then the very reduction from that rank will operate as a penalty, 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 ordinarily 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 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. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2)whether he has been visited with evil consequences of the kind hereinbefore referred to ? The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2)whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of he rules and art. 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant. " 7. KEEPING in view the above principles of law we may now consider whether the order of reversion was one passed by way of penalty. Merely because a charge-sheet was served up on the appellant and he was asked to show cause will not necessarily mean that the reversion of the appellant to his substantive rank was a punishment. It is only when an order of reversion of a government servant from an officiating post to the substantive post is visited with evil consequences, namely, forfeiture of his pay or allowances or loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, it will be regarded as a punishment and must be held to be illegal if the same is passed in violation of the provisions of the statutory rules and Article 311 of the Constitution. The learned Judge has observed that no penal consequences ensued by virtue of the reversion of the appellant to the post of driver, Grade 'b'. In coming to that finding, he has been greatly influenced by the fact that the appellant, after his reversion to the post of Driver, Grade 'b' appeared in the selection test, passed the same and was offered an officiating promotion to the post of Driver, Grade 'a' during the pendency of the suit which was, however, refused by him. In coming to that finding, he has been greatly influenced by the fact that the appellant, after his reversion to the post of Driver, Grade 'b' appeared in the selection test, passed the same and was offered an officiating promotion to the post of Driver, Grade 'a' during the pendency of the suit which was, however, refused by him. In our view, the learned Judge is not right in placing reliance on the said facts. It has been specifically averred by the appellant in paragraph 11 of the plaint that his name was struck of the penal constituted by the Selection committee for promotion to the cadre of Drivers, Grade 'a' on the basis whereof, he was promoted. This fact has not been denied by the respondent in its written statement. It is also his evidence that his name was struck off the selection list, which was not challenged in cross-examination. The order that was passed by the Chief Personnel officer in the appeal preferred by the appellant leaves no room for double that the appellant's name was removed from the penal pursuant to the order of reversion. The consequence of the removal of the name of the appellant from the panel was that the appellant lost his future chances of promotion till he again qualified himself for promotion in the usual course. Those who were in the panel would undoubtedly be promoted to the next higher grade before the appellant, although they may be his juniors in service. This meant that the appellant would lose his seniority. The loss of seniority and chances of promotion are admittedly evil consequences with which the appellant was visited as a result of the order of reversion. The immediate consequences of an order of reversion are relevant for the consideration of the question whether it amounts to punishment or not. A government servant who has been reduced in rank will still have the right to qualify himself for promotion even though he loses the qualification acquired by him by such reduction in rank. If the appellant had been reverted to this substantive rank not by way of penalty but for administrative reasons, his name would not have been removed from the panel of officers fit for promotion. 8. If the appellant had been reverted to this substantive rank not by way of penalty but for administrative reasons, his name would not have been removed from the panel of officers fit for promotion. 8. IN this connection we may refer to a decision of the Supreme Court in (2) Madhav Laxman Vaikuntha v. State of Mysore, A. I. R. 1962 S. C. 8. The appellant in the case before the supreme Court, was holding the rank of a Mamlatdar in the first grade and was officiating as a District Deputy collector. Subsequently, a departmental enquiry was held against him for mis-conduct, as a result of which he was reverted to his original rank as mamlatdar, for a period of three years. Ultimately, he was promoted to the selection grade. It was held by the Supreme Court that oh account of the order of reversion, the appellant lost his seniority as a Mamlatdar which was his substantive post and that it was not a simple case of reversion with no evil consequences. With regard to the subsequent promotion of the appellant to the selection grade it was observed that the promotion did not entirely cover the ground lost by him as a result of the impugned order of reversion and that the belated justice meted out to him by the Government did not completely undo the mischief of the order of reversion. In the Supreme Court case referred to above, the appellant had not to pass and selection test, but justice was sought to be done to him by granting him promotion to the selection grade. In the instant case, as stated already, the appellant appeared in the selection test and passed the same in the usual course. In our view, that will be no ground for holding that the order of reversion did not entail any evil consequences to the appellant. For the reasons stated above, we hold that the order of reversion impugned in this case was made by way of punishment of the appellant. Looking from another point of view, it appears to us that the reversion of the appellant is a punishment. In the charge sheet the failure of the engine was characterised as an offence and the appellant was called upon to show cause against the same. He was suspended from duty. The order of reversion was passed after the appellant submitted his explanation. In the charge sheet the failure of the engine was characterised as an offence and the appellant was called upon to show cause against the same. He was suspended from duty. The order of reversion was passed after the appellant submitted his explanation. It was followed by a written warning. These facts indicate that the reversion of the appellant to the lower post was resorted to as a measure of punishment on the basis of his negligence and inefficiency involving a stigma. In a case before the Supreme Court in (3)Debesh Chandra Das v. Union of India, a. I. R. 1970 S. C. 77, the petitioner, the chief Secretary of Assam and a member of the Indian Civil Service attached to the State Cadre, was appointed as secretary under the Government of india, a tenure post and his tenure in that post was for five years which was to expire in July, 1969. On September 20, 1966 the Cabinet Secretary wrote to him that in view of the challenges which had arisen due to the new developments in the country the Government had to examine whether the several persons in top administrative posts were fully capable of meeting those challenges and that as a result of the examination it had been decided to ask him to elect between reverting to the State service or going on leave preparatory to retirement or serving under the Government of India in a post lower than that of a Secretary. His representation to the Cabinet secretary and the Prime Minister came to nothing and he was informed that the Government had decided to revert him to the parent State or he might go on leave preparatory to retirement. It has been held by the Supreme Court that reversion to a lower post does not peruse amount to a stigma, but in the case of the petitioner there was evidence that his reversion was accompanied by stigma. The letters which the Cabinet Secretary wrote to him clearly told him that his demotion was not due to exigencies of service but because he was found wanting. The order of reversion was quashed as the petitioner was reduced in rank with a stigma upon him. In the instant case also the appellant was reverted with a stigma, namely, his unsatisfactory working in the officiating capacity and the written warning. His reversion, therefore, amounted to a punishment. 9. The order of reversion was quashed as the petitioner was reduced in rank with a stigma upon him. In the instant case also the appellant was reverted with a stigma, namely, his unsatisfactory working in the officiating capacity and the written warning. His reversion, therefore, amounted to a punishment. 9. ADMITTEDLY, no enquiry was held and the appellant was not given any opportunity of being heard in violation of rule 1708 of the Discipline and Appeal rules for Non-gazetted Railway servants and also Article 311 (2) of the constitution. The order of reversion is, accordingly, illegal and void and not binding on the appellant. 10. NOW, we may consider whether the order dated July 3, 1964 whereby a warning was given to the appellant is within the category of "censure'' which is a minor penalty. It has been held by the learned Judge that a mere warning is not a penalty so as to bring it within the meaning of "censure". We are unable to accept this view. When a Government servant has been asked to show cause against a charge and after he submits his explanation a warning is meted out to him, we fail to understand why the warning will. not amount to "censure". The warning implies within it a blame for the appellant for the failure of the engine. In our view, this is nothing but "censure" and is, therefore, a penalty. The respondent has also treated the warning as a penalty, for in the service book of the appellant it has been recorded under the penalty column. This penalty has also been imposed on the appellant in violation of the statutory rules and, as such, it is illegal. In his evidence, the appellant has categorically stated that he had no fault or negligence regarding the failure of the engine. That statement was not challenged in cross-examination. No evidence was adduced on behalf of the respondent to prove negligence or inefficiency of the appellant for the stoppage of the engine. The appellant was reverted for unsatisfactory working in his officiating capacity, but we do not find any foundation for the same. There was, therefore, no justification for the authorities to revert him to the lower rank, even assuming that the same was not made by way of punishment. 11. The appellant was reverted for unsatisfactory working in his officiating capacity, but we do not find any foundation for the same. There was, therefore, no justification for the authorities to revert him to the lower rank, even assuming that the same was not made by way of punishment. 11. AS the order of reversion has been held to be illegal and not binding on the appellant, he is entitled to the balance of the arrears of his salary for the post of Driver, Grade 'a'. It transpires from his evidence that he was getting a pay of Rs. 395/- per month in the post of Driver Grade 'a' and since reversion he has been getting a pay of Rs. 365/- per month. He is, therefore, entitled to Rs. 30/- per month which is the difference between these two pay, from August, 1964 when he was actually reverted, till January 1975, that is, for ten years six months. The total amount for this period comes to Rs. 3,780/ -. The appellant has also claimed the balance of his salary for the period he was put under suspension. There is nothing on record to show what amount, he was being paid as subsistence allowance for the period of his suspension. We would, accordingly, disallow his claim for the balance of his salary for the period of suspension. 12. IN the result, the judgment and decree of the learned Judge are set aside and the suit is decreed with cost. The orders of suspension, reversion and warning (Exts. 9, 12 and 11) are declared as illegal, inoperative and void and not binding on the appellant. The respondent is permanently restrained from giving effect to the orders of reversion and warning (Exts. 12 and 11. The appellant is entitled to recover from the respondent the sum of rs. 3,780/- (Rupees three thousand seven hundred eighty only) on account of the balance of the arrears of his salary for the post of Driver, Grade 'a' from August, 1964 upto January, 1975 at the rate of Rs. 30/- per month. The appellant is to pay the deficit court fee on the said amount in the trial court within one month of the receipt of the records by that court or within such time as that court may fix. 30/- per month. The appellant is to pay the deficit court fee on the said amount in the trial court within one month of the receipt of the records by that court or within such time as that court may fix. The respondent will pay the said amount to the appellant within four months of the payment of the deficit court-fee by the appellant. The appeal is allowed, but as none has appeared on behalf of the respondent at the hearing, there will be no order for costs.