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2004 DIGILAW 665 (ALL)

Union of India (UOI) v. Shiv Shanker

2004-03-24

TARUN AGARWALA

body2004
JUDGMENT : Tarun Agarwala, J. The Plaintiff was appointed on the post of "SKR" in the Railways in the grade of Rs.196-232. A trade test for the trade "Bus Maintainer" was conducted on 17.11.1978 in which the Plaintiff was declared successful and by letter dated 1.12.1978, he was communicated that he had passed the trade test and was selected as a Bus Maintainer. By an order dated 11.12.1978, the Plaintiff was appointed as a Bus Maintainer in the grade of Rs.260-400 against a newly created post and a new token number was allotted to him. The Plaintiff alleged that on account of his selection in the test trade for the trade of Bus Maintainer, he was promoted in the grade of Rs. 260-400 on a substantive post against a newly created post. The Plaintiff further alleged that after his promotion his juniors were also promoted as Bus Maintainer. The Plaintiff contended that after his promotion he had been working sincerely, diligently and honestly. However, his style of working was not appreciated by the Loco Foreman, who made false complaints against him. On the basis of these complaints the Divisional Railway Manager, Jhansi, passed an order reverting the Plaintiff from the post of Bus Maintainer in the grade of Rs.260-400 to the post of "SKR" in the grade of Rs.196-232. The Plaintiff alleged that the order of reversion is not only punitive, but also violative of Article 311(2) of the Constitution of India. He further alleged that no show cause notice was given to him nor any enquiry was held and, therefore, the order of reversion is violative of the principles of natural justice. The Plaintiff, therefore, filed a suit for a declaration praying that the order of reversion dated 17.8.1979 is illegal, unconstitutional and void and that he should be deemed to continue on the post of Bus Maintainer in the grade of Rs. 260-400 with all consequential benefits of seniority, increment, allowances, etc. 2. The Defendants in their written statement admitted that the Plaintiff was promoted as a Bus Maintainer in the grade of Rs.260-400, but was made to officiate as a Bus Maintainer w.e.f. 11.12.1978. The Defendants denied that the Plaintiff was promoted on a substantive post or against a newly created post. 2. The Defendants in their written statement admitted that the Plaintiff was promoted as a Bus Maintainer in the grade of Rs.260-400, but was made to officiate as a Bus Maintainer w.e.f. 11.12.1978. The Defendants denied that the Plaintiff was promoted on a substantive post or against a newly created post. The Defendants further submitted that on the basis of a complaint made against the Plaintiff, the incumbent was reverted to the original post and that he was not required to be given a show cause notice or hold an enquiry since he was only officiating on the post of a Bus Maintainer and that order of reversion was neither punitive nor was hit by Article 311 of the Constitution of India. The trial court after framing the issues and after considering the evidence brought on record, decreed the suit holding that the order of reversion dated 17.8.1979 was illegal and violative of the principles of natural justice. The order of reversion was also punitive in nature as it was based on a complaint made against the Plaintiff and that no show cause notice was given nor any opportunity of hearing was provided to the Plaintiff. The trial court further held that if the Plaintiff had been given a notice in that event he would have got an opportunity to prove that the charges levelled against him were baseless. The trial court further found that the charges framed against the Plaintiff were incorrect and in this connection, relied upon the statement of P.W. 2, who was the Loco Foreman and who had deposed that the Plaintiff had earlier worked under him and that the Plaintiff knew the work that was allotted to him and that his performance had been good. 3. The appellate court also arrived at the same conclusion and confirmed the decree of the trial court. 4. Aggrieved by the decision of the court below, the Defendants have now preferred this second appeal. 3. The appellate court also arrived at the same conclusion and confirmed the decree of the trial court. 4. Aggrieved by the decision of the court below, the Defendants have now preferred this second appeal. At the time of admission of the appeal, the following substantial questions of law were framed, namely: (i) Whether the Respondent was working on promotion as Bus Maintainer but he was to officiate as such locally by the Loco Foreman, Jhansi and was never promoted regularly to officiate as Bus Maintainer and therefore, there was no necessity of holding any enquiry against him as the order of his reversion was not punitive and the lower appellate court erred in holding otherwise? (ii) Whether the lower appellate court erred in holding that the Appellant should have established the unsuitability of the Respondent to the post of the Bus Maintainer and the Respondent should have been given an opportunity to explain his position in regard to the question of his unsuitability? (iii) Whether the Respondent was working as officiating Bus Maintainer purely on temporary basis as a stop gap measure and he could be reverted without proving that his work as such was unsatisfactory and the lower appellate court erred in holding otherwise? 5. I have heard Sri. Govind Saran, the learned Counsel for the Defendant-Appellant and Sri. Ranjit Saxena, the learned Counsel for the Plaintiff-opposite party. 6. The learned Counsel for the Appellant submitted that the Plaintiff was only made to officiate on the post of a Bus Maintainer and was not promoted as a regular Bus Maintainer and that he was working purely on a temporary basis as a stop gap arrangement and therefore, there was no necessity of holding any enquiry or giving an opportunity of hearing to the Plaintiff before passing the order of reversion. The learned Counsel for the Appellant further submitted that since the Plaintiff was officiating as a stop gap arrangement, the order of reversion is not punitive in nature and that he could be reverted without proving that his work was unsatisfactory. In support of his submission, the learned Counsel for the Appellant has placed reliance on two decisions of the Supreme Court, namely, Punjab State Electricity Board and Another Vs. Baldev Singh, AIR 1999 SC 1596 and Naresh Chandra Saha Vs. Union Territory of Tripura and Others, AIR 1970 SC 364 . 7. In support of his submission, the learned Counsel for the Appellant has placed reliance on two decisions of the Supreme Court, namely, Punjab State Electricity Board and Another Vs. Baldev Singh, AIR 1999 SC 1596 and Naresh Chandra Saha Vs. Union Territory of Tripura and Others, AIR 1970 SC 364 . 7. On the other hand the learned Counsel for the Plaintiff contended that the Plaintiff was promoted on a substantive post against a newly created post and that the order of reversion was illegal and punitive in nature and violative of Article 311(2) of the Constitution of India. The impugned order was passed without giving a show cause notice and without giving any opportunity of hearing. The Plaintiff submitted that he was made to work on a substantive post and that he was not officiating as a Bus Maintainer. 8. The sole question to be determined in the present case is whether the Plaintiff was promoted on a substantive post or was only officiating as a stop gap arrangement and whether the order of reversion was punitive in nature or not? 9. The crucial document in this regard is the order of promotion dated 11.12.1978, which indicates that the Plaintiff has been declared suitable for the post of a Bus Maintainer and is to officiate as a Bus Maintainer against the newly created post. The said letter also indicates that a fresh token number is being allotted. According to the New Oxford English Dictionary, 1993 Edition, the word 'officiate' has been defined to mean, to perform divine service ; discharge the office ; perform the duties attached to an office or position ; perform any particular duty or service. Thus, the order of promotion clearly indicates that the Plaintiff was found suitable for the post of Bus Maintainer and therefore, he was directed to perform the duties of a Bus Maintainer on a newly created post. The word "officiate" in the order of promotion does not indicate that the Plaintiff was promoted to officiate on the post of a Bus Maintainer, as a stop gap arrangement. The Plaintiff was promoted on a newly created post and a fresh token number was issued to him. If the Plaintiff was made to officiate as a stop gap arrangement, then there was no necessity to issue a fresh token number. The Plaintiff was promoted on a newly created post and a fresh token number was issued to him. If the Plaintiff was made to officiate as a stop gap arrangement, then there was no necessity to issue a fresh token number. Therefore, in my opinion, the order of promotion clearly indicated that the Plaintiff was promoted on a substantive post in a regular manner. The contention of the Appellant that he was only promoted to officiate as a stop gap arrangement is devoid of any merit. The judgment cited by the learned Counsel for the Appellant is not helpful and is not applicable to the present facts and circumstances of the case. In the case of Punjab State Electricity Board and Anr. v. Baldev Singh (supra), the Supreme Court found that the nature of appointment was merely on ad hoc basis and that no rights had accrued in favour of the Plaintiff and therefore, the question of giving an opportunity of hearing before reverting the Plaintiff did not arise. In the present case the promotion of the Plaintiff was on a substantive post and by virtue of his promotion to the post of a Bus Maintainer, the Plaintiff had acquired a right and therefore, he could not be reverted back to a lower grade without affording him an opportunity of hearing. The Supreme Court in the case of Rishal Singh Vs. State of Haryana and Others, (1994) 2 JT 157 , has held that a promotion could only be made on a regular basis and could not be made on an ad hoc basis. Similarly, in the case of Naresh Chandra Saha v. Union Territory of Tripura (supra), the Supreme Court found that the Appellant was merely officiating on that post and was reverted to the substantive post on account of the post being filled by another officer approved by the Commission. Thus, the aforesaid judgment cited by the learned Counsel for the Appellant are not applicable in the instant case. 10. I, further find that the impugned order of reversion was punitive in nature. The Supreme Court in Parshotam Lal Dhingra Vs. Thus, the aforesaid judgment cited by the learned Counsel for the Appellant are not applicable in the instant case. 10. I, further find that the impugned order of reversion was punitive in nature. The Supreme Court in Parshotam Lal Dhingra Vs. Union of India (UOI), AIR 1958 SC 36 , held: 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 further 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. 11. Applying the aforesaid principles, I find that by the impugned reversion order the Plaintiff was reverted to a lower post, i.e., from the post of Bus Maintainer in the grade of Rs. 260-400 to the post of "SKR" in the grade of Rs. 196-232. The impugned reversion order, therefore, entails loss of pay and allowances. The order of reversion was, therefore, clearly punitive in nature. 12. In my opinion before reverting the Plaintiff an opportunity of hearing ought to have been given to the Plaintiff, which in the present case was not given. Therefore, the impugned order of reversion was hit by Article 311(2) of the Constitution of India. 13. In view of the aforesaid, I hold that the order of reversion was invalid and violative of Article 311(2) of the Constitution of India. Therefore, the impugned order of reversion was hit by Article 311(2) of the Constitution of India. 13. In view of the aforesaid, I hold that the order of reversion was invalid and violative of Article 311(2) of the Constitution of India. In view of the concurrent findings given by the court below, I, find no ground to interfere in the findings of fact recorded by the courts below. 14. Accordingly, the second appeal is dismissed. In the circumstances of the case, there shall be no order as to costs.