State of Bombay vs F.A. Abraham

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 59 of 1961

Decision Date: 12 December 1961

Coram: A.K. Sarkar, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

The case was titled State of Bombay versus F. A. Abraham and was decided on 12 December 1961 by the Supreme Court of India. The judgment was authored by Justice A. K. Sarkar and the bench also comprised Justices P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta, and N. Rajagopala Ayyangar. The citation for the decision is reported in 1962 AIR 794 and in the Supreme Court Reporter Supplement (2) 92, with subsequent citations appearing in various law reports such as R 1964 SC 1361, R 1966 SC 1529, R 1974 SC 423, R 1974 SC 1898, RF 1976 SC 1766, RF 1976 SC 2547, and R 1977 SC 1617. The matter concerned a government servant who had been appointed to an officiating post and was subsequently reverted from that post for allegedly unsatisfactory work, raising the question of whether the reversion amounted to punishment requiring compliance with section 240(3) of the Government of India Act, 1935, and whether the Constitution of India, article 311, applied.

The respondent had originally held the substantive position of Inspector of Police but was appointed to officiate as Deputy Superintendent of Police. He was later reverted to his original rank of Inspector without being afforded any opportunity to be heard on the question of his reversion, and his request that the government provide the reasons for the reversion was refused. Subsequently, a departmental inquiry was conducted without his knowledge, based on a confidential memorandum sent by the District Superintendent of Police to the Deputy Inspector‑General of Police alleging misconduct. The inquiry did not substantiate the allegations, yet the Inspector‑General of Police later wrote to the Government stating that the respondent’s prior record was unsatisfactory and that his appointment to officiate as Deputy Superintendent had been made in the hope that he would improve, but that the confidential complaint demonstrated habitual dishonesty and a lack of merit for promotion. Despite the respondent’s representations, the Government maintained the order of reversion, prompting the respondent to file a suit challenging the order. The trial court decreed in favor of the respondent, and the High Court upheld that decree on appeal.

The Supreme Court held that a person who occupies an officiating post does not acquire a permanent right to that post. An officiating appointment is made on the implied condition that the officer will be returned to his former rank if found unsuitable for permanent elevation. Accordingly, a reversion made on the ground of unsuitability is a lawful exercise of the terms under which the officiating post was granted and does not constitute a punitive reduction in rank that would invoke section 240 of the Government of India Act, 1935. The Court referred to the earlier decision in M. A. Waheed v. State of Madhya Pradesh (1954) N. L. J. 305, observing that a reversion for unsatisfactory work is not disapproved as a punitive measure. Consequently, the Government’s refusal to disclose the reasons for the reversion did not demonstrate that the reversion was punitive, and the later departmental enquiry, which failed to prove misconduct, could not be used to characterize the reversion as a punishment. The Court affirmed that the Government was entitled to assess the respondent’s suitability for the officiating post, consistent with the principles articulated in State of Bihar v. Gopi Kishore Prasad, A. I. R. 1960 S.C. 689.

The Court observed that a reversion resulting from unsatisfactory work does not necessarily constitute a reduction in rank that is disallowed. The fact that the Government declined to provide the respondent with the reasons for his reversion could not by itself demonstrate that the reversion was intended as punishment. Moreover, the departmental inquiry later conducted in this case failed to establish that the respondent’s reversion was punitive in nature. The Court further held that the Government possessed the authority to assess the respondent’s suitability for the post to which he had been appointed on an officiating basis. In support of this view, the Court referred to the decision in State of Bihar v. Gopi Kishore Prasad, A. I. R. 1960 S.C. 689.

The present appeal, designated as Civil Appeal No. 59 of 1961, was filed by the State of Maharashtra against the judgment and decree dated 14 March 1957 of the Bombay High Court at Nagpur, which had affirmed the decree of the Additional District Judge, Nagpur. That decree had declared the order reverting the respondent from the rank of officiating Deputy Superintendent of Police to the rank of Inspector of Police to be illegal and void, and had granted certain consequential reliefs. Counsel for the appellant was N. S. Bindra and R. H. Dhebar, while counsel for the respondent comprised J. B. Dadachanji, O. C. Mathur and Ravinder Narain. The judgment was delivered on 12 December 1961 by Justice Sarkar. The Court noted that the orders of the High Court and the learned Additional District Judge were clearly untenable. The lower courts had held that the respondent had been reduced in rank in violation of section 240(3) of the Government of India Act, 1935, which corresponds to Article 311 of the Constitution, because he had not been given an opportunity to show cause against the proposed order. Although it was not disputed that such an opportunity had not been afforded, the Court opined that, for reasons to be explained, the respondent was not entitled to that opportunity. The factual chronology recorded that on 8 June 1948 the respondent was serving as an Inspector in the Central Provinces and Berar Police Service. He was appointed to officiate as Deputy Superintendent of Police effective 9 June 1948. On 27 January 1949 his services were seconded to the Hyderabad Government in connection with police actions there, and he was returned to the Central Provinces and Berar on 5 February 1949. On 19 February 1949 the Inspector General of Police, Central Provinces and Berar, issued an order stating: “Shri F. A. Abraham (respondent) Deputy Superintendent Police, Parbhani, is reverted to rank of Inspector.” This order became the subject of the respondent’s suit, which gave rise to the present appeal. After the reversion order, the respondent on 23 February 1949 requested the reasons for his reversion; the Government refused to disclose the reasons on 3 March 1949. Subsequently, on 25 May 1949 a confidential memorandum was sent by the District …

In the course of the proceedings, the Superintendent of Police at Parbhani sent a confidential memorandum to the Deputy Inspector General of Police at Aurangabad. In that memo the Superintendent reported that he had examined certain allegations of corruption that had been made against the respondent while the respondent was serving with the Hyderabad Government at Parbhani. The Superintendent expressed the view that those allegations appeared to have substance. Acting on that report, the Deputy Inspector General at Aurangabad convened a departmental inquiry to investigate the same allegations. The inquiry concluded that the allegations could not be proved. The inquiry, however, was conducted without the respondent being informed or given an opportunity to be heard; it was held behind his back. Despite the finding that the allegations were unproven, the order that had reverted the respondent to the lower rank was nevertheless upheld.

A subsequent letter from the Inspector General of Police to the Chief Secretary of the Government of Madhya Pradesh, dated 19 August 1950, was also examined. The letter, written after the departmental inquiry, stated that the respondent’s prior service record was unsatisfactory. It explained that the respondent had been promoted to act as Deputy Superintendent of Police only because the Government needed officers, and that the promotion was intended to give him a chance to improve his conduct. The letter went on to say that the complaint recorded in the confidential memorandum demonstrated that the officer was habitually dishonest and therefore unworthy of promotion. The respondent subsequently made representations to the Government requesting that the order reverting him to the lower rank be revised, but the Government replied that it was unable to alter the order. The narrative also notes that, following the adoption of the Constitution, the Central Provinces and Berar were reorganised as the State of Madhya Pradesh within the Indian Union.

The High Court, in the judgment that is now under appeal, relied on its earlier decision in M. A. Waheed v. State of Madhya Pradesh. That decision held that when a person who is temporarily occupying a higher post is returned to his original post simply because the vacancy ceases to exist or because he lacks the qualifications required for the higher post, the return does not constitute a reduction in rank. Conversely, if the return is because the person’s work is judged unsatisfactory, the return is deemed a reduction in rank. Applying that principle, the High Court concluded that the Government’s argument that the respondent had been appointed to the higher post only because there was a shortage of officers was a post‑hoc rationalisation. The fact that the respondent had been allowed to act in the higher post suggested, on its face, that he was at least initially considered fit for the position. Moreover, the High Court observed that the Government’s refusal to disclose the reasons for the reversion or to provide the respondent with the inquiry report indicated that the reversion was based on an assessment of unsatisfactory performance. Accordingly, the High Court held that, under the precedent set by M. A. Waheed, the respondent had effectively been reduced in rank, and that the reduction was illegal because the respondent had not been given a chance to present his defence. The Supreme Court, however, expressed disagreement with the High Court’s reliance on the observations made in M. A. Waheed.

In this case the Court observed that when a person who is serving in an officiating capacity is reverted because his work is judged unsatisfactory, that reversion amounts to a reduction in rank. The Court explained that a person who is appointed to officiate in a post does not acquire a permanent right to hold that post. Such an appointment is usually made because the substantive holder of the post is temporarily absent, for example on leave or for some other reason. When the substantive officer returns, the officer who was officiating is naturally transferred back to his original position. The Court held that this ordinary reversion is not a reduction in rank because the very basis of the officiating appointment was that it would be relinquished when the permanent officer resumed duties. The Court further noted that on some occasions an officer is given an officiating post as a trial to determine his suitability for eventual permanent promotion to that rank. The Court said that an implied term of such an officiating appointment is that, if the officer is found unsuitable, he must return to his previous lower‑rank post. Consequently, if the competent authorities determine that the officer is unsuitable for the higher rank and revert him to his original lower‑rank position, the action is consistent with the conditions under which the officiating post was granted. The Court stressed that such a reversion is not a punitive measure and therefore does not constitute a reduction in rank.

The Court referred to the decision in Parshotam Lal Dhingra v. Union of India, observing that the Supreme Court has stated that an appointment to a permanent post in Government service, whether on probation or on an officiating basis, is of a transitory nature. In the absence of a special contract or specific rule governing the conditions of service, the implied term of such an appointment, under the ordinary law of master and servant, is that it may be terminated at any time. In short, a servant appointed to a permanent post on probation or on an officiating basis does not acquire any substantive right to that post and therefore cannot complain, just as a private servant on probation or in an officiating role cannot complain if his service is terminated at any time. The Court pointed out that the respondent had no right to the post of Deputy Superintendent of Police to which he was appointed in an officiating capacity and he did not dispute this fact. Accordingly, the respondent could not, without further cause, complain when he was sent back to his original post. The Court noted that this is precisely what occurred in the present matter, even if the reversion is taken as being due to the respondent’s unsuitability for the higher rank.

The Court also acknowledged that an officiating officer may be reverted to his original rank as a form of punishment. Referring to the judgment in Dhingra’s case, the Court quoted that if an order results in the forfeiture of pay or allowances, loss of seniority in the substantive rank, or the stoppage of future promotion prospects, such circumstances may indicate that, although the Government ostensibly acted under the terms of the contract of employment or the rules, in reality it had terminated the employment as a penalty. The Court concluded that the circumstances described in that observation had not arisen in the present case, because the reversion had not affected the respondent’s condition or future service prospects besides the loss of the temporary higher appointment, which alone does not demonstrate punitive intent.

In this case the Court observed that when an order results in the forfeiture of pay or allowances, the loss of seniority in the substantive rank, or the postponement of future promotion opportunities, it may indicate that although on its face the Government appears to be exercising its contractual or rule‑based power to terminate employment or to reduce an officer to a lower rank, in reality the action is intended as a penalty. The Court found that none of those circumstances were present here. The reversion of the respondent did not prejudice his service conditions or future prospects. Although he lost the benefit of the higher appointment, this loss alone could not demonstrate that the reversion was punitive, because he never possessed a legal right to remain in the higher post or to enjoy its attendant benefits. The reversion was effected as an exercise of a right that the Government vested in it under the terms of the officiating appointment. The Court held that the High Court was mistaken in concluding that the Government’s refusal to disclose the reasons for the action proved that the reversion amounted to a punitive reduction in rank; such a refusal may arouse suspicion but, when the action is justified by the terms of employment, the underlying motive is irrelevant, as affirmed in the cited Parshotam Lal Dhingra decision. Consequently, section 240(3) of the Government of India Act does not apply unless the reversion is expressly a punishment. The Court also rejected the High Court’s inference that a departmental inquiry proved the reduction was punitive, noting that the inquiry was conducted long after the reversion order and therefore could not have been the cause of that order. The Government was within its authority to inquire into the respondent’s suitability for the higher rank, and such an inquiry does not, by itself, demonstrate that the earlier reversion was punitive. Counsel for the respondent referred to the State of Bihar v. Gopi Kishor Prasad judgment, which held that termination without enquiry is punitive, whereas termination following an enquiry into alleged misconduct or inefficiency is punitive because it stigmatizes the officer’s competence. That precedent concerned the discharge of a probationer. The Court later clarified in State of Orissa v. Ram Narayan Das that an enquiry aimed at imposing punishment differs from one intended to determine whether a probationer should be confirmed. In the present matter, the enquiry was solely to assess the respondent’s suitability for the higher rank and was not intended as punishment. Although counsel suggested that the enquiry formed part of the original reversion order and was deliberately delayed to avoid the operation of section 240(3), no such allegation was raised in the plaint.

In the earlier decision, the Court had observed that placing a stigma on a person’s competence could harm his future career. That case concerned the dismissal of a probationary officer on the ground that he was unsuitable. The Court later referred to that observation in State of Orissa v. Ram Narayan Das, where it explained that the third proposition in the earlier case related to an enquiry into allegations of misconduct or inefficiency with the purpose, if those allegations were established, of imposing punishment, and that the enquiry was not intended to decide whether a probationer should be confirmed. Applying that reasoning, the Court noted that in the present matter the enquiry had been undertaken solely to determine whether the respondent was suitable for the higher rank, and that the enquiry was not intended as a form of punishment. At one stage counsel for the respondent was inclined to argue that the enquiry was in fact part of the original order of reversion and that it had been deliberately postponed in order to avoid the applicability of section 240(3) of the Government of India Act, 1935. The Court found that no such case was made in the plaint, that the lower courts had not raised it, and that it could not be derived from their findings. Consequently, the Court concluded that the argument could not be entertained. The Court therefore ordered that the appeal be allowed, awarded costs throughout, and entered a final order permitting the appeal.