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citation codes
Case Number
Attorney(S)
  • V.Pasayat
Judges
  • Hon'ble Mr. Justice Gopal Chandra Das
  • Hon'ble Mr. Justice Ramaswamy Laxman Narasimham
Acts
  • Section 240 of the sub-s. (3) of the Government of(India Act and in cl. (2) of Article 311 of the Constitution
  • Article 313 of the Constitution.8. In Rule 2 of the Bihar and Orissa Subordinate Civil Services
  • Section 240 of the sub-ss. (2) and (3) of the Government of India Act 1935,
  • provisions of Section 240 of the sub-s. (2) of that Act
  • provisions of cl. (2) of Article 311
  • GOVERNMENT OF INDIA ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • V.Pasayat
Judges
  • Hon'ble Mr. Justice Gopal Chandra Das
  • Hon'ble Mr. Justice Ramaswamy Laxman Narasimham
Acts
  • Section 240 of the sub-s. (3) of the Government of(India Act and in cl. (2) of Article 311 of the Constitution
  • Article 313 of the Constitution.8. In Rule 2 of the Bihar and Orissa Subordinate Civil Services
  • Section 240 of the sub-ss. (2) and (3) of the Government of India Act 1935,
  • provisions of Section 240 of the sub-s. (2) of that Act
  • provisions of cl. (2) of Article 311
  • GOVERNMENT OF INDIA ACT
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Smart Summary

Summary of Opinion — Narasimham, C.J.

Factual and Procedural Background

The petitioner is a Forester attached to the office of the Conservator of Forests, Baripada Circle. He filed a petition under Article 226 of the Constitution challenging office order No. 3320/2F-123/54 dated 7-5-1955 which reduced his pay to the lowest stage of Rs. 50 in the scale Rs. 50-2-70 for a period of two years.

Chronology as recited in the opinion:

  • From 1950 the petitioner was under suspension on various charges and was dismissed by the Divisional Forest Officer (DFO), Baripada Division, on 12-9-1950.
  • On appeal the Government of Orissa, by letter dated 20-11-1953 (No. 19850, D-2. F-51-52), set aside the dismissal and directed fresh disciplinary proceedings and that the petitioner be treated as under suspension pending disposal of those proceedings.
  • Following fresh proceedings and after obtaining the petitioner’s explanation the Conservator of Forests, Baripada Circle, by office order No. 1418 dated 19-2-1954, censured the petitioner and reinstated him.
  • After reinstatement fresh departmental charges were framed by the DFO by office order No. 208 dated 28-10-1954. The DFO did not recommend severe punishment, but the Conservator imposed punishment without giving the petitioner an opportunity of a further show-cause, reducing his pay to the lowest stage (Rs. 50) for two years (order dated 7-5-1955), and providing that the order shall not have the effect of postponing future increments.
  • The petitioner retired on 1-7-1956 and challenged the reduction order on the ground that it contravened clause (2) of Article 311 of the Constitution.

Legal Issues Presented

  1. Whether reduction of the petitioner’s pay to the lowest stage in the same time-scale (from Rs. 70 to Rs. 50) amounts to a "reduction in rank" within the meaning of Article 311(2) of the Constitution.
  2. Whether, if such a reduction is a "reduction in rank" under Article 311(2), the failure to issue a separate notice under that clause (calling upon the servant to show cause why the proposed punishment may not be passed) vitiates the order of punishment.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner challenged the validity of the Conservator's order reducing his pay on the ground that it contravened clause (2) of Article 311 of the Constitution (i.e., the procedure and protection in case of reduction in rank).

Respondent's Arguments (Advocate General on behalf of the State)

  • The Advocate General admitted the facts but contended that reduction of pay to a lower stage in the same time-scale does not amount to "reduction in rank" within Article 311(2).
  • Accordingly, he argued, the petitioner was not entitled to a fresh notice under Article 311(2) calling upon him to show cause why the proposed punishment of reduction in rank might not be imposed.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Aezalur Rahman v. King-Emperor, AIR 1943 FC 18 Explains that Article 311 is based on Section 240 of the Government of India Act, 1935, and that long-standing service practices and the statutory rules existing before the Act should be carefully considered when construing Section 240 / Article 311. The court relied on this authority to justify reference to the Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935 and related service rules preserved by the Constitution, when construing "reduction in rank".
Raghunath Sabato v. State, ILR (1954) Cut 684 (at p. 704) Holds that reduction to a lower stage in the time-scale must necessarily involve reduction in rank. The court accepted and relied on this Division Bench decision to support the proposition that reduction to a lower stage in the same time-scale amounts to a reduction in rank under Article 311(2).
Badri Pratap Gupta v. The State of Rajasthan, AIR 1958 Raj 239 Represents a contrary view in the Rajasthan High Court which did not fully accept the Raghunath Sabato conclusion. The court noted the Rajasthan judgment but observed that it appeared not to have considered the earlier Full Bench decision in full; the opinion treated the Rajasthan decision as not persuasive on the facts and reasoning before it.
Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 Supreme Court observations on when a reduction constitutes punishment: the true test is whether the order for reduction visits the servant with penal consequences (forfeiture of pay/allowances, loss of seniority, stoppage/postponement of chances of promotion). The court quoted and applied this test to the facts: because the contested reduction produced loss of seniority and jeopardised promotion chances, it was treated as a punitive reduction amounting to "reduction in rank" under Article 311(2).

Court's Reasoning and Analysis

The court proceeded through a chain of textual, historical and functional analysis:

  1. Textual and historical foundation: The court noted that Article 311 is based on Section 240 of the Government of India Act, 1935 (citing Aezalur Rahman), and therefore service rules and long-standing practices in existence under prior statutes were relevant in construing the phrase "reduction in rank".
  2. Relevant rules: The Bihar and Orissa Subordinate Civil Services Discipline and Appeal Rules, 1935 were examined. Rule 2 explicitly lists punishments and includes "reduction to a lower post or time scale or to a lower stage in the time-scale" as one of the punishments.
  3. Construction of "reduction in rank": Although the precise phrase "reduction in rank" does not appear verbatim in the cited Rule, the court considered it reasonable to construe "reduction in rank" in Section 240 / Article 311(2) as encompassing "reduction to a lower stage in a time-scale" because that form of reduction is identified as a disciplinary punishment in the rules.
  4. Addressing the Advocate General's narrow interpretation: The Advocate General argued that only reduction to a lower post (i.e., change of substantive rank) would qualify as reduction in rank, and not a financial movement to a lower stage within the same post. The court rejected this narrow reading.
  5. Precedential support and tests: The court accepted the Division Bench decision in Raghunath Sabato that reduction to a lower stage in the time-scale involves reduction in rank. It acknowledged that the Rajasthan High Court in Badri Pratap Gupta had not fully accepted that view, but found that the Supreme Court's reasoning in Parshotam Lal Dhingra supported the broader interpretation.
  6. Functional test from the Supreme Court: The court adopted the Supreme Court's guiding principle that the real test is whether the reduction carries penal consequences (such as forfeiture of pay/allowances, loss of seniority, or postponement of promotion prospects). If it does, it is in substance a punishment and thus a reduction in rank for purposes of Article 311(2).
  7. Application to the facts: The petitioner was drawing the highest stage (Rs. 70) when the order was passed. Reduction to the lowest stage (Rs. 50) for two years placed him junior to those formerly junior to him (loss of seniority) and jeopardised his future promotion prospects. Those consequences showed that the order had penal effect and therefore amounted to reduction in rank under Article 311(2).
  8. Procedural consequence: Because the order was punitive in nature and amounted to reduction in rank, clause (2) of Article 311 required that a specific notice be issued calling upon the petitioner to show cause why the proposed punishment should not be imposed. No such notice was issued and the earlier notice (in which charges were originally framed) was held insufficient to meet the requirement of Article 311(2) for a reduction in rank.

Holding and Implications

Holding: The court held that reduction of pay to a lower stage in the same time-scale (in the facts of this case: from Rs. 70 to Rs. 50 for two years) amounts to a "reduction in rank" within the meaning of clause (2) of Article 311 of the Constitution. Because no separate notice under Article 311(2) was given calling on the petitioner to show cause, the punishment order dated 7-5-1955 of the Conservator of Forests, Baripada Circle (No. 3320) was declared invalid and inoperative.

Direct consequences ordered by the court:

  • The petitioner is entitled to the pay he was actually drawing prior to the contested order for the period from 7-5-1955 until his superannuation on 1-7-1956; the State Government must refund the balance of pay and allowances which he would have drawn for that period had the reduction order not been passed.
  • The State Government must re-examine the amount of pension payable to the petitioner in consequence of the invalidity of the reduction order.
  • The petition was allowed with costs; hearing fee of Rs. 50/- was mentioned.

Broader implications: The court's reasoning affirms that a punitive financial diminution within the same post that produces penal consequences (loss of seniority, impairment of promotion prospects or monetary forfeiture) falls within "reduction in rank" for Article 311(2) purposes, and therefore triggers the procedural protection of a specific show-cause notice. The opinion applies existing authorities and does not state that it is making any novel statutory amendment.

Disposition: Petition allowed.

Show full summary ...

    Rupnarain Singh v. State Of Orissa Opposite Party.

    Narasimham, C.J:— This is a petition under Article 226 of the Constitution by a Forester attached to the office of the Conservator of Forests, Baripada Circle, against an order (No. 3320/2F-123/54) dated 7-5-1955, reducing his pay to the lowest stage of Rs. 50/- in the scale of Rs. 50-2-70/- per month for a period of two years.

    2. From 1950 the petitioner was kept under suspension on various charges of misconduct but it is unnecessary to refer to them in this petition. It is sufficient to say that he was dismissed from service by the Divisional Forest Officer, Baripada Division, on 12-9-1950. But on appeal the Government of Orissa in their letter No. 19850, D-2. F-51-52 dated 20-11-1953, set aside the order of dismissal and directed the Divisional Forest Officer, Baripada, to draw up a fresh proceeding for disciplinary action in accordance with the rules. They further directed that he should be treated as under suspension till the proceedings were disposed of. In pursuance of this direction of the Government, the Conservator of Forests, Baripada Circle, after drawing up a fresh proceeding and obtaining his explanation, passed orders on 19-2-1954, by his office order No. 1418 censuring him for indiscipline and reinstating him in service.

    3. But the period during which he was under suspension pending enquiry against him was treated as a substantive punishment of suspension. But after thus reinstated in service, he was again proceeded against departmentally and fresh charges were framed against him by the Divisional Forest Officer in his office order No. 208 dated 28-10-1954. The petitioner submitted his explanation and the Divisional Forest Officer, Baripada Division, did not recommend a severe punishment on this occasion. But the Conservator of Forest Baripada Circle without giving an opportunity to the petitioner, passed the following order of punishment:

    “I agree with the finding of the Divisional Forest Officer, Baripada Division. I however do not agree with the punishment recommended by the Divisional Forest Officer.

    Mr. Rupnarain Singh, Forester, is reduced with effect from the date of the order to the lowest stage of Rs. 50/- in the scale of pay of Rs. 50-2-70 fixed for the Foresters, for a period of two years, and this order shall not have the effect of postponing his future increments.”

    4. The petitioner eventually retired from service on 1-7-1956. He challenged the validity of the order reducing his pay to the lowest stage of Rs. 50/- on the ground that it contravened the provisions of cl. (2) of Article 311 of the Constitution.

    5. The facts are all admitted by the Advocate General on behalf of the Forest Department of the State of Orissa, but he contended that the reduction of a Government servant's pay to a lower stage in the same time-scale would not amount to ‘reduction in rank’ within the meaning of cl. (2) of Article 311 and that consequently the petitioner was not entitled to a fresh notice calling upon him to show cause why the proposed punishment of reduction in rank may not be passed against him.

    6. The main question for decision in this petition is whether the reduction of the pay of the petitioner to the lowest stage in the time-scale would amount to “reduction in rank” within the meaning of Article 311(2). It was admitted before me that the petitioner was actually drawing the highest pay in the scale namely Rs. 70/- when the order under challenge was passed. There is also no doubt that the order was passed by way of punishment inasmuch as specific charges were framed against him for alleged misconduct, his explanation was taken, and thereafter his pay was reduced.

    7. Article 311 of the Constitution is based on Section 240 of the sub-ss. (2) and (3) of the Government of India Act 1935, and, as pointed out by their Lordships of the Federal Court in Aezalur Rahman v. King-Emperor*, AIR 1943 FC 18, in construing the provisions of Section 240 of the sub-s. (2) of that Act the long standing service practice based on the statutory rules in force long before the passing of the Government of India Act — which were continued in force by that Act — should be carefully considered. The relevant rules for our purpose will lie the Bihar and Orissa Subordinate Service Discipline and Appeal Rules 1935 which, again were based on the Civil Services (Classification, Control and Appeal) Rules. All these rules were saved under Article 313 of the Constitution.

    8. In Rule 2 of the Bihar and Orissa Subordinate Civil Services Discipline and Appel Rules the various clauses of punishment that may be imposed on members of the Subordinate Civil Services have been described and one of the punishments so described (in cl. (iii) of that rule) is “reduction to a lower post or time scale or to a lower stage in the time-scale.”

    9. The expression “reduction in rank” which is found in Section 240 of the sub-s. (3) of the Government of(India Act and in cl. (2) of Article 311 of the Constitution is not found in the aforesaid Rule. But bearing in mind the observations of their Lordships of the Federal Court mentioned above, it seems reasonable to construe the expression “reduction in rank” as including the punishment of reduction to a lower stage in a time-scale as described in cl. (iii) of R. 2 of the Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935.

    10. The learned Advocate General contended that reduction to a lower stage in the same time-scale would not amount to ‘reduction in rank’ and that reduction to a lower post alone would amount to such reduction in rank, and urged that though the petitioner's pay may have been reduced to the lowest stage in the time-scale his rank as Forester in the Department was not in any way affected. I am unable to accept such a narrow interpretation of the expression “reduction in rank.” A Division Bench of this Court held in Raghunath Sabato v. State, ILR (1954) Cut 684 (at p. 704) that reduction to a lower stage in the time scale must necessarily involve reduction in rank.

    11. It is true that the observations in that judgment were not fully accepted by the Rajasthan High Court in Badri Pratap Gupta v. The State Of Rajasthan, AIR 1958 Raj 239, but it does not appear that the learned Judges of that High Court read the aforesaid judgment of this Court in full and they seem to have been guided only by the notes of unreported cases as given in the All India Reporter. Moreover the judgment of that High Court was delivered on the 9th October, 1957, but, subsequently, their Lordships of the Supreme Court in the well known Dhingra's case, Parshotam Lal Dhingra v. Union Of India reported in AIR 1958 SC 36 have made some important observations on this question which would appear to support the view taken by the Division Bench of this Court. In particular I would quote the following passage in the judgment of the Supreme Court, at page 49:

    “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 the 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 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 loss of his seniority in his substantive rank or stoppage or postponement of his future chances of promotion, then the circumstances may indicate that although, in form, Government had purported to exercise the 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 Government has terminated the employment as and by way of penalty.”

    12. It is true that in the aforesaid case their Lordships of the Supreme Court were considering the case of a temporary Government servant whereas here the petitioner was admittedly a permanent Forester. But the observations of the Supreme Court are clear to the effect that wherever there is loss of seniority in the substantive rank of an officer or postponement of the future chances of promotion of the Officer, there would be a punishment by way of reduction in rank. In the present case by reducing the pay of the Forester to the lowest stage in the time-scale for a period of two years he was placed junior to those who were formerly junior to him, thereby resulting in loss of seniority. Moreover apart from monetary loss arising out of reduction in rank, the chances of his promotion were also very much jeopardised on account of his loss of his seniority. In my opinion, therefore, reduction to lower stage in the same time-scale of pay of a Government servant would also amount to reduction in rank within the meaning of cl. (2) of Article 311 of the Constitution.

    13. The petitioner was therefore entitled to notice under cl. (2) of Article 311 calling upon him to show cause why the proposed punishment of reduction in rank may not be passed against him. Admittedly no such notice was issued. The first notice in which charges were framed against him and in which he was called upon to submit his explanation as to why disciplinary action may not be taken against him, will not suffice.

    14. The application is therefore allowed and the order of the Conservator of Forests, Baripada Circle (No. 3320 dated 7-5-1955) reducing the petitioner to the lowest stage in the scale of Forester is declared invalid and inoperative. The petitioner is entitled to the pay which he was actually drawing prior to the passing of the aforesaid order of reduction until the date of his super-annuation (namely 1-7-1956) that is from 7-5-1955 to 1-7:1956. The State Government should refund to him the balance of pay and allowances which he would have drawn for that period if the said order of reduction had not been passed. The State Government should also re-examine the amount of pension that would be payable to the petitioner in consequence of the invalidity of the aforesaid order of the Conservator of Forests, Baripada Circle, dated 7-5-1956. The petition is allowed with costs. Hearing fee Rs. 50/- (Rupees Fifty only).

    Das, J.:— I agree.

    V.B.B

    15. Petition allowed.

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    Comments

    Rupnarain Singh v. State Of Orissa Opposite Party.
    (Jan 20, 1959)