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Laxminarayan Chironjilal Bhargava v. Union Of India
Concise Analytical Summary of the Opinion
Factual and Procedural Background
The petitioner filed a petition under Article 226 of the Constitution seeking three primary reliefs:
- Quashing of an order of the respondent reducing the petitioner in rank with effect from "294-1952".
- A declaration that the confidential report of the Senior Barrack Officer for the year 1950, as endorsed by the Commander, Works Engineers, Jabalpur, is an afterthought.
- An order directing payment of arrears of increment from 1-4-1951 as recommended in the confidential report for 1950.
Facts as stated in the opinion:
- The petitioner has been in the employment of the Defence Department since 1937. He was recruited at Ferozepur Cantonment and executed a service agreement on 12-6-1937 with the Secretary of State for India in Council.
- Under the agreement the petitioner was a temporary clerk; the agreement contained clauses about salary subject to departmental rules, resignation (one calendar month's notice), and termination by the Government with one calendar month's notice or pay.
- The petitioner was promoted over time, last earning promotion on 15-8-1947 as permanent supervisor, Barrack Stores, Grade I.
- On 1-4-1949 he was promoted as officiating temporary Barrack Officer and posted to Raipur; he was subsequently transferred to Jabalpur (7-4-1949) and Pulgaon (23-8-1949), continuing in the officiating post until February 1952.
- In February 1952 the Departmental Promotion Committee informed him that it found him unsuited for continued retention in the grade of Barrack Stores Officer (M.E.S.) and reverted him to the grade of Supervisor B/S Grade I.
- The petitioner contends he was not afforded an opportunity to show cause as required by Article 311 of the Constitution and thus challenges the reversion; he also contends the confidential report is an afterthought and seeks arrears of increment as recommended in that report.
Legal Issues Presented
- Whether Article 311 of the Constitution applies so as to require that the petitioner (a civilian employed in the Defence Department, holding an officiating temporary post) be given a reasonable opportunity of showing cause before being reduced in rank.
- Whether the petitioner is a "member of a civil service" or "holds a civil post" for the purposes of Article 311, given his status as a temporary employee and his occupying a temporary/officiating post.
- Whether the Army Instructions (India), Rule 212 (including sub-rule 3(iii) and sub-rules 4, 5 and 6) apply so as to require written grounds and an opportunity to defend in respect of the petitioner's reversion.
- Whether the confidential report of the Senior Barrack Officer for 1950 is an afterthought and therefore liable to be declared as such.
- Whether the petitioner is entitled to arrears of increments from 1-4-1951 as recommended by the said confidential report (a consequential relief).
Arguments of the Parties
Petitioner's Arguments
- The petitioner argued he was reduced in rank without being given an opportunity to show cause as required by Article 311 of the Constitution.
- He sought a declaration that the confidential report for 1950 was an afterthought (implying it was produced or relied upon improperly).
- He sought consequential relief in the form of arrears of increments recommended in the confidential report from 1-4-1951.
Respondent / Departmental Position (as reflected in the opinion)
- The Departmental Promotion Committee considered the petitioner unsuited for continued retention in the higher grade and reverted him to his substantive post; the action was one of non-continuance in the higher officiating post rather than the imposition of a formal penalty.
- The authorities stated that the petitioner had been negligent in performance of duties and had disobeyed certain orders and instructions, but they did not propose any penal action beyond not continuing him in the higher post.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shenton v. Smith, 1895 AC 229 (p. 234(A)) | Principle that a person temporarily appointed to a post (to cover absence) who is dismissed before the tenure ends has no cause of action; concept applicable to temporary incumbents. | The court relied on this decision to support the view that the reasoning applies where a person holding a temporary post is not dismissed but merely reduced in rank; it tends to show Article 311 does not protect those in precarious temporary officiating positions. |
| Yusaf Ali v. Province of Punjab, AIR 1950 Lah 59 (B) | Holds that the corresponding provision in Government of India Act, S.240, applies to temporary employees in posts declared temporary (i.e., no distinction between permanent and temporary in applicability). | The court noted this authority but rejected the inference that Article 311 must apply to temporary employees merely because the Constitution does not explicitly distinguish permanent from temporary incumbents; the court did not accept Yusaf Ali as controlling for Article 311's application to temporary officiants. |
| Jayanti Prasad v. State of Uttar Pradesh, AIR 1951 All 793 (C) | Discussed whether Article 311 applied where services were terminated at expiry of engagement term or upon expiry of notice period; held Article 311 did not apply in that context. | The court referred to this decision (relied on by petitioner) but regarded the observations relied upon as obiter and not supported by reasoning; the court did not treat it as compelling authority to extend Article 311 to the petitioner. |
Court's Reasoning and Analysis
The court's analysis proceeded in a stepwise manner, confined to the materials before it and the textual provisions cited:
-
Threshold requirements for invoking Article 311: the court identified three conditions the petitioner must establish before Article 311 can be invoked:
- That Article 311 applies to a civilian employed in the Defence Department;
- That the petitioner is "a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State"; and
- That the departmental action (refusal to continue promotion) amounts to a "reversion" attracting Article 311 protections.
- Characterisation of the petitioner's employment: the court noted, on the material before it, that the petitioner was initially employed as a temporary clerk and that nothing showed he had been absorbed as a permanent employee. Additionally, the post of Barrack Officer in which he officiated was itself temporary. The court described the petitioner's tenure and officiation as "precarious" and doubly precarious.
- Applicability of Article 311: relying on the temporary nature of both the employee and the post, the court concluded it was difficult to see how Article 311 applied. The court rejected an argument that the lack of express distinction in the Constitution between permanent and temporary incumbents implies Article 311 must cover temporary employees. It reasoned that a person cannot be deemed a member of a service or as holding a post unless permanently absorbed; holding a post requires the post itself be permanent and the incumbent permanent.
- Precedential support and limits: the court invoked Shenton v. Smith to support the view that temporary appointments do not attract the same protection as permanent incumbency. It discussed Yusaf Ali (which held S.240 of the Government of India Act applied to temporary employees) but declined to accept that absence of explicit constitutional distinction mandates Article 311's application to temporary incumbents. Jayanti Prasad was treated as not persuasive on the point, with some observations characterized as obiter and unsupported by reasoning.
- Army Instructions (India), Rule 212: the court examined Rule 212, noting that it applies to civilians paid from Defence services (per the instruction) and that certain sub-rules provide for reduction as a penalty and for procedural safeguards (written grounds and opportunity to defend). The petitioner's case was considered against sub-rule 3(iii), and sub-rules 4 and 5 which describe offences/shortcomings attracting reduction or dismissal.
- Penalty vs. non-continuance: the court analyzed whether the departmental action amounted to a penalty. Although the authorities attributed negligence and disobedience to the petitioner, they did not purport to impose a penalty; rather they declined to continue him in the higher officiating post. The court held that such non-continuance for unsuitability was not a penalty in the strict sense (which implies retribution or correction). Because the action was not penal, Rule 212 was of little assistance to the petitioner.
- Remedies and discretionary observations: while upholding the legality of the departmental action, the court expressed regret at the appearance of unfair dealing and emphasized the importance of administrative authorities observing law and rules in both form and spirit. It recommended reconsideration after hearing where appropriate, as a remedy to dispel impressions of unfairness.
- On the confidential report and arrears: the court held that it could not declare the confidential report of 1950 to be an afterthought on the material before it, and because the main reliefs were rejected the consequential claim for arrears did not arise.
Holding and Implications
Holding:
Petition dismissed.
Direct consequences and implications as stated in the opinion:
- The petition seeking quashing of the reversion was dismissed because Article 311 was held not to be attracted on the facts and status of the petitioner's service and post.
- The prayer for a declaration that the confidential report for 1950 is an afterthought was refused for lack of supporting material.
- The consequential claim for arrears of increments (based on the confidential report) did not arise and was not granted.
- The court did not award costs to the Government. The petitioner was directed to receive a refund of the outstanding amount of security deposited by him.
The opinion does not indicate that the court intended to lay down a novel binding precedent; its decision turns on the facts (temporary status of employee and post) and the court's interpretation of the limits of Article 311 and Rule 212 as applied to those facts.
Final Disposition
Order accordingly: the petition is dismissed; no costs to Government; refund of outstanding security deposit to the petitioner.
1. This is a petition under Article 226 of the Constitution in which the petitioner seeks the following three reliefs:
(i) A direction quashing the order of the respondent reducing the petitioner in rank with effect from 294-1952;
(ii) A declaration that the confidential report of the Senior Barrack Officer for the year 1950 endorsed by the Commander, Works Engineers, Jabalpur, is an afterthought; and
(iii) An order directing the respondent to pay all the arrears of increment from 1-4-1951 till date as recommended in the confidential report for the year 1950.
2. It is not contested before us that the petitioner is in the employment of the Defence Department from the year 193/. He was recruited at Ferozepur Cantonment and on 12-6-1937 he executed an agreement of service in favour of the Secretary of State for India in Council. Clause 1 of this agreement provides that the petitioner shall remain and continue in the service of the Government of India as a temporary clerk. Similarly, the agreement provides that the Government shall, subject to the rules and regulations of the department concerned, pay to the petitioner so long as he shall remain in the service of Government the salary of the post to which for the time being he may belong in such department. Clause 2 of the agreement provides that if the petitioner became desirous of resigning his situation, he shall give one clear calendar month's previous notice in writing of such desire to the officer under whose order he is serving.
3. Clause 5 of the agreement provides that if the Government or the appointing officer shall at any time become desirous of dispensing with the services of the petitioner, the Government or the appointing officer shall, subject to the provisions of clause 6 of the agreement, give the petitioner one calendar month's notice in writing of such desire and in default of such notice, the petitioner shall be entitled to receive one month's pay or salary then receivable by him. It is not necessary to set out the terms of clause 6 of the agreement as they are not relevant in this case.
4. The petitioner, since his employment in the year 1937, has been working continuously and is still working as a civilian employee in the Defence Department. During the course of his service, he has been promoted from time to time to higher posts and the last promotion which he earned was on 15-8-1947, when he was appointed a permanent supervisor, Barrack Stores, Grade I. On 1-4-1949 the petitioner was promoted as officiating temporary Barrack Officer and was posted to Raipur in Madhya Pradesh.
5. Later, on 7-4-1949 he was transferred in the same capacity to Jabalpur and on 23-8-1949 he was transferred to Pulgaon, again in the same capacity. The petitioner continued to officiate in this post till February 1952, when he was informed by the Departmental Promotion Committee that as it found him unsuited for continued retention in the grade of Barrack Stores Officer in the M.E.S, he was being reverted to the grade of supervisor B/S Grade I.
6. The petitioner's complaint is that he was not given an opportunity of showing cause against his reversion, as required by Article 311 of the Constitution, and that therefore his reversion is not warranted. Article 311 reads thus:
“(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.”
7. We have not set out the proviso to the Article because it is not relevant for the purposes of this case.
8. Before Article 311 can be invoked, it is necessary for the petitioner to establish three things. In the first place, he must show that this article applies to a civilian who is in the employment of the Defence Department. The second thing he has to establish is that he is ‘a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State’. and the third thing he has to establish is that the refusal of the authorities to promote the petitioner amounts to his reversion. If the petitioner fails to satisfy any one of these three conditions, the provisions of Article 311 cannot be attracted.
9. It is common ground that the petitioner was employed initially as a temporary clerk. Nothing has been brought to our notice from which it could be inferred that he has since been absorbed as a permanent employee in the Defence Department. It is further admitted that the post in which the petitioner was officiating, that is, the post of Barrack Officer, is itself a temporary post. No doubt, the post has not yet been abolished; but it is still a temporary post. In the circumstances, not only is the tenure of the petitioner in the service of the Defence Department precarious, but his officiation in the temporary post was also precarious.
10. That is to say, the petitioner's position as an officiating temporary Barrack Officer was doubly precarious. In the circumstances, it is difficult to see how Article 311 of the Constitution can be attracted to his case. In this connection we would refer to a decision of the Privy Council in ‘Shenton v. Smith’, 1895 AC 229 at p. 234(A).
11. In that case the question was whether a person who was appointed temporarily as a medical officer during the absence on leave of the actual holder of that office and was dismissed by the Government before the leave had expired, had any cause of action and it was held that he did not have any. It seems to us that this reasoning would apply to a case where a person holding a temporary post is not dismissed from service but is merely reduced in rank.
12. We are aware of the decision in ‘Yusaf Ali v. Province of Punjab’, AIR 1950 Lah 59 (B) in which it was held that the corresponding provision in the Government of India Act, S. 240, applies also to temporary employees in all posts declared to be temporary. The reasoning which the learned Judge gives for his conclusion is that there is nothing in the Constitution Act which would show that the provisions of S. 240 will not apply to a temporary employee or to an incumbent of the temporary post.
13. In our opinion, from the mere fact that the Constitution does not specifically draw any distinction between a permanent employee and a temporary employee and between an employee in a temporary post and one in a permanent post, it cannot be inferred that Article 311 of the Constitution would apply not only to permanent employees or incumbents of permanent posts but also to temporary employees or incumbents of temporary posts.
14. A person cannot be deemed to be a member of a service unless he is permanently absorbed therein; nor, in our opinion, can he be deemed to be the holder of such post unless he holds it permanently. For holding a post permanently the post itself must be permanent and the incumbent must be a permanent employee. If the post itself is temporary then the person who is working thereon cannot be said to “hold” it. Similarly, where the post is permanent but the holder is only temporarily working on it, he cannot be said to “hold” the post but to merely officiate in that post. The decision of their Lordships just referred to fully supports this view.
15. We would also refer to a decision in ‘Jayanti Prasad v. State of Uttar Pradesh’ AIR 1951 All 793 (C) on which reliance is placed on behalf of the petitioner. In that case the question which fell to be decided was whether Article 311 applied to the case of a person whose services are sought to be terminated at the expiry of the term for which he was engaged, or at the expiry of the period of notice by which, in accordance with the conditions of his service, his services could be terminated. The learned Judges held that Article 311 did not apply in that case and in the course of their judgment observed:
“It is not so much a question of the post being held temporarily or it being of a permanent nature; the real question is whether a person's services are bing dispensed with before this normal period of service has terminated by reason of misconduct on his part, or otherwise.” It seems to us that these observations are merely ‘obiter’ and, at any rate, they are not supported by any reasoning. In our view, therefore, the petitioner cannot invoke the provisions of Article 311 of the Constitution in so far as his main relief is concerned.
16. We would next refer to the “Army Instructions (India)”. Rule 212 thereof applies to the civilians paid from Defence services, whether they are in permanent or temporary service of the Government or whether they are holding gazetted or non-gazetted posts. Among the penalties which could be imposed upon a Government servant for misconduct is reduction to a lower post as is set out in sub-rule 3(iii) of R. 212. Ruls 212(6) provides that no order of dismissal, removal or reduction would be passed on a Government servant unless he has been informed in writing of the grounds on which it is proposed to take action, and he has been afforded an adequate opportunity for defending himself.
17. If it is established that this clause applies, then the petitioner is entitled to a relief from this Court. In our opinion, however, R. 212(3) is not applicable. It is said that the reasons which the authorities have given for not continuing the petitioner in a higher pos are analogous to what is stated in sub-rules (4) and (5; and that therefore in the light of the reasons given by the authorities, the reversion of the petitioner is by way of penalty. Sub-rules (4) and (5) read thus:
“4. Neglect of duty, inattention or disobedience renders a Government servant liable to reduction from a higher to a lower grade.
5. Continued and wilful neglect or disobedience, gross inefficiency, fraud dishonesty, gross misconduct and offences involving moral disgrace should be visited with dismissal or removal according as it is considered necessary or not to bar an individual from re-employment.”
18. No doubt, the authorities have said that the petitioner had been negligent in the performance of his duties and that he has also disobeyed certain orders and instructions. But when they said so they did not propose to penalise him in any way for his actions. All that they thought necessary to do, in view of the shortcomings in the petitioner, was not to continue him in the higher post. In our opinion, this does not amount to inflicting penalty on a person for his shortcomings, in the strict sense of the word ‘penalty’. Penalty, as we understand it, is necessarily by way of retribution or correction.
19. Where an act is not intended to be either by way of retribution or correction, it cannot be regarded as a penalty at all. If the Departmental Promotion Committee declined to approve of the petitioner's promotion because of some shortcomings which it found in his work and suggested his reversion to the substantive post, its action cannot be characterised either as by way of retribution or of correction. We are, therefore, of the opinion that even R. 212 of the Army Instructions is of little assistance to the petitioner.
20. Thus the action of the authorities to whom the petitioner is subordinate is within the law and we cannot assist the petitioner in any way. We, however, feel impelled to observe that the way in which the petitioner's case has been dealt with by the authorities has left an impression on his mind that he has not been given a fair deal. There is at least a semblance of justification for this.
21. In the interest, not only of the employees of Government but also in that of the Administration itself, we think that it is necessary for the authorities concerned to observe the law and the rules not merely in form but also in spirit. Where that has not been done, the error can be easily rectified by a reconsideration of the matter after hearing the employee who feels aggrieved by the action taken against him.
22. Such a course, instead of showing any weakness on the part of the authorities, will not only clear them of a charge of lack of sympathy for their subordinates but would go a long way towards promoting confidence in the mind of the subordinates in the sense of justice and fairplay on the part of their superiors.
23. The second prayer in the petition is for a declaration that the confidential report of the Senior Barrack Officer for the year 1950 is an after-thought. Even if we have the power to grant such a declaration, we are afraid we are unable to grant one because the material which has been placed before us does not justify our doing so.
24. The third prayer is merely a consequential one. As the first two are rejected, the question of granting the third one does not arise. Though we dismiss the petition, we do not think that we should award any costs to the Government. The petitioner is entitled to the refund of the outstanding amount of security deposited by him.
25. Order accordingly.
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