Decided on December 02,1955

Ganesh Balkrishna Deshmukh Appellant


Chaturvedi, J. - (1.) THIS is a petition under Article 226 of the Constitution of India. The Petitioner Ganesh Balkrishna Deshmukh, aged 50, was working as a Naib Amin in the Holkar State on 15 -4 -1943 and his salary and emoluments were Rs. 125 per month. On 1 -7 -1948, he took over the charge as Amin i.e. as Tehsildar. After the formation of Madhya Bharat State on 3 -8 -1948, the Government of Madhya Bharat made orders for continuance of the Services Personnel in the Administrative Department on temporary and provisional basis pending finalisation for the integrated set -up. On 21 -2 -1949, the Petitioner was provisionally appointed as a Tehsildare and on 10 -6 -1949 in the provisional fixation of seniority, he was fixed as Assistant Mal and was given officiating chance of a Tehsildar. According to the return filed by the Government, the Petitioner was provisionally fixed in the grade of Rs. 200 -10 -300. Subsequently, the Board of Revenue was invested by the Rajpramukh with the powers of appointment to Subordinate Revenue Services. This cadre included the Tehsildars and the Naib Tehsildars as well. The power of appointment was conferred on the Board of Revenue by the Government in the implementation of the Integration Committee of the Revenue Department constituted for the reorganisation of the Services. The Petitioner, however, held his appointment on a Provisional and temporary basis. The Petitioner was working as Tehsildar, Jobat, when complaints against him were received by the Collector, Jhabua. He was drawing Rs. 28O/ - in the time -scale of Rs. 200 -10 -300 as offilciating Tehsildar. There were allegations of corruption and bribery and serious irregularities in the conduct of official business. Orders were passed by the Board of Revenue suspending the Petitioner pending an enquiry into the allegations against him. And this order was communicated the Petitioner on 5 -2 -1952. An enquiry was instituted and conducted by the Sub -Divisional Officer, who acquainted the Petitioner with the charges against him. The Sub -Divisional Officer after examining witnesses sent report to the Board of Revenue through the Collector and the Commissioner of the Division concerned. On this, an order was made. (Text of order in regional language omitted -Ed.) It is obvious that this order reverted the Petitioner from the post of Officiating Tehsildar to that of a Naib Tehsildar and barred promotion to higher rank for three years. The Petitioner there filed a review application to the Board of Revenue which was rejected. He then preferred an appeal to Hon'ble the Revenue Minister, Madhya Bharat which was rejected. He then served a notice on the State of Madhya Bharat on 17 -7 -1954 bringing the illegality of the order passed by the Board of Revenue to their notice and praying for reconsideration and for restoration to his post. But he received no reply. The Petitioner, therefore, has applied for issue of a writ under Article 226 of the Constitution against the Government asking them restore the Petitioner to the post of Tehsildar or any other equivalent post in the State of Madhya Bharat holding that the order passed by the Revenue Board on 26 -3 -1953 degrading the Petitioner to the post of a Naib Tehsildar without giving him a reasonable opportunity to show cause why the proposed punishment be not inflicted on the Petitioner is illegal, without jurisdiction, ultravires and inoperative. The Petitioner also attacked the enquiry as being contrary to the Civil Services (Punishment and Appeal) Rules, 1950.
(2.) IN the return filed by the Under -Secretary to the Government, Revenue Department, Madhya Bharat it was mentioned that the enquiry was justified and it was stated that there cannot be any ground for seeking a writ from this Court as compliance with departmental rules is not justiciable matter and is purely administrative. It was further stated that Article 311 of the Constitute is inapplicable in the present case, as the reversion of the Petitioner to his substantive post is not tantamount to an order of punishment, nor is it 'reduction in rank' within the meaning of Article 311 of the Constitution. The main point for argument pressed in this case was whether the Petitioner was "reduced in rank," It is conceded on behalf of Mr. Chitale, learned Advocate -General, that no reasonable op opportunity of showing cause against the action proposed was given to the Petitioner when he was reverted to the post of a Naib Tehsildar. But the learned Advocate -General contended that the order dated 26 -3 -1953 as quoted above consists of two parts. The first part relates to the reversion of the Petitioner to his substantive post and the second part bars his promotion for three years. Mr. Chitale contends that a person holding a provisional charge can always be deprived of a charge by the Government. It cannot amount to reduction in rank within the meaning of Article 311 of the Constitution. I regret I cannot subscribe to this view. The order dated 26 -3 -1953 has to be read as a whole. The two parts of the order, one about the reversion to the substantive post of Naib Tehsildar, and the other barring the Petitioner's promotion for three years cannot be read separately and when we come to the last sentence mi;qZDr naM dk mYys[k Jh - ns'keq[k ds djsDVj jksy esa fd;k tk;k A we are clear in mind that both the punishments will be recorded in the character -roll and that the reversion to the post of Naib Tehsildar was definitely a reduction in rank. "Reduction in rank" under Article 311 must be in the nature of a punishment or a penalty. If a person officiating in a higher post is reverted to the substantive post in the normal course (e.g. for competence for holding a higher charge), there is no question of a punishment or a penalty being imposed. But if reversion to the substantive rank comes after complaints, and enquiry, and, a report against the Petitioner, it must be deemed to be a punishment for some offence or for misconduct. Such a reversion would undoubtedly act as a bar to future promotion and must be treated as a 'reduction in rank.' Mr. Chitale had his own doubts for the correctness of this proposition of law. But we are clear in mind that this proposition is now well settled : (See - 'Kashinath v. P.K. Kapila' : AIR 1952 Ori 285 (A); - 'M.V. Vichoray v. State of Madhya Pradesh' : AIR 1952 Nag 288(B); - 'Jatindra Nath v. R. Gupta' : AIR 1954 Cal 383 (C); -'Kedarnath v. State of Ajmer' : AIR 1954 Raj 22(D); 'Mohindrasingh v. State of Pepsu' : AIR 1955 P&H 106 (E). A Division Bench of our High Court has already taken a similar view on 4 -11 -1955 in - 'Kishanlal v. State of Madhya Bharat'(S), AIR 1956 MP 100 (F).
(3.) HAVING come to the conclusion that the order of reversion in this case was made as a measure of penalty and not on administrative grounds, in our opinion, the mandatory provisions of Article 311(2) should have been complied with before the Petitioner could be reverted to his substantive post. In our opinion, the petition succeeds on this ground and therefore, we do not think it necessary to refer to other grounds taken in the petition. Clause (2) of Article 311 requires that the civil servant in' question is entitled to have an opportunity to show cause at two stages: (a) once after he found guilty and punishment is provisionally proposed and (b) then, against the punishment so proposed upon the above finding. As no opportunity has been given to the Petitioner to show cause at either stage, we will hold that reversion of the applicant to the post of Naib Tehsildar by way of penalty is unconstitutional and that the order of the Board of Revenue, Madhya Bharat dated 23 -3 -1953 reverting the Petitioner from his post of provisional Tehsildar to his permanent post as Naib Tehsildar is invalid a inoperative. The Petitioner is entitled to be retained in that post or in an equivalent post unless and until the Government (if so advised) draw up regular departmental proceedings for imposing on him any punishment they think fit. The Petitioner will be entitled to costs. We assess the hearing fee at Rs. 75/ -. Newaskar, J.;

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