Civil Appeal No 18441975
Appeal by special leave from the judgment and order dated the 17 7 1974 of the Allahabad High Court in special appeal No 121 of 1974 R N Trivedi and O P Rana for the appellants
section C Aggarwal and V J Francis for the respondent
The Judgment of the Court was delivered by BEG J
This appeal by special leave granted to the Regional Manager of UP State Road Transport Corporation Allahabad challenges the findings of a learned single Judge affirmed by a Division Bench of the Allahabad High Court holding that the respondent Pawan Kumar Dubey was reverted from the post of a Senior Station Incharge in which he was officiating to his substantive post of a Junior Station Incharge by means of an order dated 20 2 1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January 1973
His juniors it was found were still officiating in posts of Senior Station Incharge
The respondent s chances of promotion were said to be adversely affected by the reason given for the reversion in the impugned order that the respondent was not fit yet for the higher post
The learned single Judge and the Division Bench in the Allahabad High Court were referred to several decisions of this Court mentioned by the Division Bench These were State of Bombay vs F A 542 Abraham1 Champaklal Chimanlal Shah vs Union of India2 Divisional Personnel Officer vs Raghavendrachar3 and State of UP  Ors
vs Sughar Singh4
The Allahabad High Court had followed what it considered to be the ratio decidendi of Sughar Singh s case supra the last case of this Court available at the time
Special leave to appeal was sought in the case before us on the ground that Sughar Singh s case supra had been misunderstood by the High Court and required some elucidation by this Court
Special leave was granted on condition that in any event the costs of the respondent will be borne by the appellants
The question to be determined was assumed to be one of law only
The appeal was therefore to be heard on the special leave paper Book with such additional documents from the record of the case as the parties may choose to file
We find that although a number of documents were filed neither side has chosen to file a copy of the order impugned which has been interpreted by the single Judge as well as by the Division Bench of the Allahabad High Court as one amounting to award of a punishment not merely in the light of the circumstances preceding the order but also from the terms of the order itself and its effect upon the respondent s future
The question therefore arises whether we really have before us any point of law of such a nature as to justify interference in exercise of the exceptional powers of this Court under article 136 of the Constitution
Even though we have come to the conclusion that the question before us is substantially one of fact we would like to explain a little the law applicable to such cases in view of the submission that Sughar Singh s case supra had led to some misunderstanding of it
Not much clarification seems necessary so far as conditions for the application of Article 3112 are concerned as this question has been considered and decided by this Court in a number of cases including the recent decision by a bench of seven Judges of this Court in Shamsher Singh  Anr
vs State of Punjab 5
It was pointed out in that case at p 937 No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment on the facts and circumstances of the case
If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 3112 of the Constitution 1  2 19645 SCR 190
3  4  5 543 Shamsher Singh s case supra related to an order of termination of services of a probationer which on the face of it appeared to be innocuous
Nevertheless this Court after examining the facts and circumstances constituting the background of the order and its consequences held it to be substantially one of punishment and set it aside for a violation of Article 3112 of the Constitution
It was explained there at p 837 Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post
In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other reason not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged
No punishment is involved in this
The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry
But in these cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation
If on the other hand the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the perversions of Article 3112 he can claim protection
In Gopi Kishore Prasad vs Union of India AIR 1960 SC 689 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence his discharge would not have the effect of removal by may of punishment
Instead of taking the easy course the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer
It was also observed in Shamsher Singh s case supra at p 838 The fact of holding an inquiry is not always conclusive
What is decisive is whether the order is really by way of punishment
See State of Orissa vs Ramnarain Das  If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance see Modan Gopal vs State of Punjab 1963 3 SCR 716
In R C Lacy vs State of Bihar  ors
 Civil Appeal No 590 of 1962 decided on 23 October 1963 it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of the case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken
A probationer whose terms of service provided that it could be terminated without any notice and without any 544 cause being assigned could not claim the protection of Article 3112
See R C Banerjee vs Union of India  A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 see
Champaklal C Shah vs Union of India On the other hand a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment See Jagdish Mitter vs Union of India AIR 1964 SC 449
We think that the principles involved in applying Article 3112 having been sufficiently explained in Shamsher Singh s case supra it should no longer be possible to urge that Sughar Singh s case supra could give rise to some misapprehension of the law
Indeed we do not think that the principles of law declared and applied so of have really changed
But the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court
Even where there appears to be some conflict it would we think vanish when the ratio decidendi of each case is correctly understood
It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar
One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts
We have examined the record of the case of Sughar Singh supra
our judgment in the case perhaps does not fully bring out the factual background on which the decision of that case was based
In that case the Government servant concerned had been suspected of making an alteration in his own service record
It was not shown how he could possibly have had access to his service record as he was not in charge of the record
One of the alterations made meant an increase in his age so that he would according to the altered state of the record have had to retire earlier
Sughar Singh complained when asked to show cause against the alleged tampering that it must have been manipulated by his enemies interested in injuring him
It could not be determined who was responsible for the alterations
Nevertheless the following adverse entry was made on Sughar Singh s record 1966 Is suspected to have got entries of date of birth and educational qualifications altered on the authority of a fictitious certificate which had to be corrected later on
Severely warned
Two years later as a result of this entry based expressly on bare suspicion without further inquiry into the question whether Sughar Singh could be responsible for tampering with the record a reversion order innocuous on the face of it had been made on 12th August 1968
The effect of the reversion order was that Sughar Singh who 545 apart from this entry had an excellent record was reverted from a post in which he had been officiating from 16th March 1961 until the reversion order dated 12th August 1968
It was shown that about 200 officers junior to him were still officiating in the cadre from which Sughar Singh had been reverted to his substantive post of Head Constable
No administrative need or exigency could be shown to justify the reversion order
All officers including Sughar Singh who had been officiating had been selected after special training for the higher cadre
The question naturally arose Why was Sughar Singh selected for this discriminatory treatment  A single Judge of the Allahabad High Court held acting on the Principle that a mere reversion from a post to which the incumbent had no right did not amount to punishment within the meaning of Article 3112 so that Sughar Singh had no remedy
He only took the for of the action into account
No further probe was considered necessary by the learned Judge
When the case came before a Division Bench in special appeal one of the learned Judges agreed with the learned single Judge who had dismissed Sughar Singh s position merely on the ground that Sughar Singh had no right to the post without considering the impact of the surrounding facts or the background of the order
The other learned Judge however carefully examined the background of Sughar Singh and the reversion order as revealed by facts on record
He pointed out that the averments of Sughar Singh that he had a splendid record apart from the adverse entry in question and that there was no inefficiency on his part were not controverted in the counter affidavit filed
This learned Judge found the reversion order against Sughar Singh to be punitive
He however added that even if the order could not be held to be punitive it was certainly violative of the guarantee contained in Article 161 of the Constitution
When the matter was heard by Verma CJ on a reference occasioned by the difference of opinion between the two learned Judges on the Division Bench it was again argued that both Articles 161 and 3112 had been infringed
The learned Chief Justice did not find sufficient material to uphold a violation of Article 16
But after taking into account the admission of the Counsel appearing for the State that the sudden reversion of Sughar Singh could not at all be explained or accounted for unless it could be linked with the adverse entry the learned Chief Justice held the action against Sughar Singh to be punitive and violative of Article 3112 of the Constitution
Sughar Singh had been held to have been punished for nothing beyond what had taken place two years before the reversion order so that it could not have been justly or reasonably connected with the delayed action based upon it
This Court could have dismissed the appeal by special leave solely on the ground that no question of law arose on the finding of fact also upheld by this Court that Sughar Singh was punished in substance so that Article 311 2 was attracted
This Court s judgment in Sughar Singh s case supra shows that it was only following the law on Article 3112 of the Constitution as laid down repeatedly earlier by this Court
It specifically referred to 546 the following cases Purshotam Lal Dhingra vs The Union of India1 State of Punjab  Anr
vs Sukh Rai Bahadur2 State of Orissa vs Ram Narayan Das3 B C Lacy vs State of Bihar4 Jagdish Mitter vs Union of India5 A G Benjamin vs Union of India6 Ram Gopal Chaturvedi vs State of Madhya Pradesh7 Union of India vs Gajendra Singh8 Divisional Personnel Officer vs Raghavendrachar supra Union of India vs Jaswan Ram 9 Madhav vs State of Mysore10 State of Bombay vs Abraham supra
In Sughar Singh s case this Court summarised the propositions of law deducible from the cases mentioned above and while considering the applicability of some of the propositions of law to the facts of the case it did observe that on the face of it the action against Sughar Singh did not appear to be punitive
Nevertheless on a total consideration of all the facts including the admission in the High Court before Verma CJ by the Standing Counsel appearing on behalf of the State that the reversion order could not be explained except as a result of the adverse entry made two years earlier it had finally applied the ratio decidendi of the State of Bihar  Ors
vs Shiva Shukshuk Mishra11 where this Court had affirmed the opinion of the High Court on facts that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the plaintiff and by way of punishment to him
On this view of the case it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary to the provisions of Article 16 also
Nevertheless this Court held there alternatively after referring to State of Mysore vs P P Kulkarni 19 that the action taken against Sughar singh also resulted in a violation of the provisions of Articles 14 and 16 of the Constitution
It seems to us to be clear after examining the record of Sughar Singh s case supra that what weighed with this Court was not only that there was a sufficient element of punishment in reverting Sughar Singh for a supposed wrong done from which the order of reversion could not be divorced so that Article 3112 had to be complied with but there was also enough of an impropriety and unreasonableness in the action taken against Sughar Singh solely for a very stale reason which had become logically quite disconnected to make out a case of malice in law even if it was not a case of malice in fact
If an authority acts on what are justly and logically viewed extraneous sounds it would be such a case
All these aspects of the case were kept in view
by this Court when it recorded the conclusion In this view of the matter we have no doubt that the order was passed by way of punishment though all outward indicia show the order to be a mere order of reversion
Even if it were not so we have no doubt that the order would be 1  2 3 19611 SCR 606
4 CA No 590 of 1962 decided on 23 10 63
5 AIR 1964 SC 449
6 CA No 1341 of 1966 decided on 13 12 66
7 19701 SCR 472
8 19723 SCR 660
9 AIR 1958 SC 905
10 AIR 1962 SC 811
11 19712 SCR191 12 AIR 1972 section C 2170
547 liable to be quashed on the ground of contravention of Articles 14 and 16 of the Constitution
We do not think that Sughar Singh s case in any way conflicts with what has been laid down by this Court previously on Article 3112 of the Constitution or Article 16 of the Constitution
We would however like to emphasize that before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one Government servant  and another similarly placed which cannot be reasonably explained except on an assumption or demonstration of malice in law or malice in fact
As we have explained acting on a legally extraneous or obviously misconceived ground of action would be a case of malice in law
Orders of reversion passed as a result of administrative exigencies without any suggestion of malice in law or in fact are unaffected by Sughar Singh s case supra
They are not vitiated merely because some other Government servants juniors in the substantive rank have not been reverted
This Court has held in section C Anand vs Union of India1 that no question of applying Articles 14 or 16 could arise where a termination of service takes place in terms of a contract of service
Again in Champaklal Chiman Lal Shah supra this Court held that the motive behind an order of termination of service in accordance with the terms of a contract would not be really relevant even if an enquiry had been held to decide whether proceedings under Article 3112 should be instituted or the services of a Government servant terminated in terms of his contract
Champaklal Chimanlal Shah s case supra was not one in which any question of mala fides arose
Protection of Article 16 was claimed there on the ground that Rule 5 providing for termination of services of temporary servants was itself hit by Article 16
Such a contention was repelled
On the other hand Kulkarni s case supra relied upon in Sughar Singh s case supra was one in which misuse of power or detournement de puvoir as it is called in French Administrative law had been proved
Another term for such use of power for an improper object is malice in law
We repeat that before any such case of malice in law can be accepted the person who alleges it must satisfactorily establish it on proved or admitted facts as it was in Kulkarni s case supra
Where the allegations are of malice in fact which are generally seriously disputed and the case cannot be satisfactorily decided without a detailed adduction of evidence of cross examination of witnesses Courts will leave the party aggrieved to an ordinary civil suit
This rule relating to exercise of discretionary powers under Article 226 is also well settled
We have tried to gather from such materials on the record of the case before us as have been made available to us by the parties the spirit and substance to use the expressions employed by this Court in Champaklal s case e supra of the action taken against the contest 1  548 ing respondent
We have examined the background of the order of reversion
We find that on the one hand there is fulsome praise ill testimonials given to the respondent by his superior officers for meritorious work done by him
On the other hand we find that preceding the order of reversion passed on 20th February 1973 against the respondent there is a spurt of warnings and very vague complaints and adverse remarks of 30th September 1972 and 4th October 1972 21st October 1972 and 25th January 1973 presumably all by a particular superior officer alleging disrespect shown disobedience to orders given and aspersions said to have been cast by the respondent against the conduct of the superior officer
The respondent was warned by this superior officer an Assistant General Manager by a letter dated the 4th October 1972
There is also a copy of an order on a complaint against the respondent that the respondent had misused the services of a Chowkidar
The detailed order of 2nd June 1970 shows that although the complaint was dismissed by the General Manager yet he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be sweet tempered
There were some old adverse entries also against the respondent
But they must be deemed to have been washed off by orders of his promotion on an ad hoc or officiation basis by an order of 7th March 1972 which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March 1972 as required by the rules
It appears that the respondent had asked for particulars to meet the vague allegations of insubordination and disobedience which had found their way into his service record for 1972 to 1973
It has not been shown that the respondent was supplied with these particulars
He professed ignorance of occasions on which he had been disrespectful or of existence of any orders which had been disobeyed by him
These particulars could have been easily supplied to him if the allegations against him were justified The respondent s representation against the last adverse entry of the kind indicated above made on 25th January 1973 was pending when the reversion order of 20th February 1973 was passed
His allegations that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted
In these respects the facts of the case are similar to those of Sughar Sungh s case supra
In addition as the High Court points out the express condemnation of the respondent as not fit for the higher post in which his juniors were allowed to officiate categories him as inferior to his juniors even if it was qualified by the addition of the word yet
The only possible justification which could be offered for this discriminatory treatment were the sudden adverse entries of 1972 73 against the respondent which were quite vague
If there had been anything really serious against the respondent proceedings under Article 311 2 of the Constitution should have been instituted
Indeed they can still be taken if there are substantial grounds against the respondent
On the other hand if the action against him is due merely to a feeling of pique or anger with him on the part of his superior officers to which the respondent s tactlessness 549 may have contributed it did not deserve anything more than the warnings and the adverse entry
Indeed even the bona fides of the last adverse entry becomes doubtful when we find that the respondent was not despite his requests given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based
To allege such misconduct against him and then to stigmatise the respondent as not fit for working in the higher post could appear on the facts and circumstances of the particular case to be more vindictive than just and fair
It may mar or delay his chances of promotion in future
We however refrain from commenting further on what may or may not have been the real cause of the respondent s reversion
If the respondent is really unfit or inefficient as compared with his juniors there is no reason why on a comparative assessment of merits at a time when such assessment may be called for under the rules there should be rules on the subject if there are none so far his juniors in service should not be preferred over him
A decision given after fair comparisons with records of others officiating in the same cadre would have ensured that no violation of Article 16 took place
The sudden reversion of the petitioner for the reason given in tile reversion order could be held to amount to an unjustified stigma which could not be said to be devoid of an element of punishment
As we have indicated there is no magic formula or uniform set of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action
It is however well established that even an apparently inoffensive order may fail to pass tested imposed by Articles 16 and 311 of the Constitution
Dealings of superior officers with their subordinates in Government service in a Welfare State must be shown to be based on fair play and reason when facts are actually proved which indicate that these requirements may be lacking
Even if the case before us could be one in which the High Court could have refrained from interfering we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution
The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice
It did not give the respondent any other or consequential relief
And as we have already indicated it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitive action
As we are leaving the authorities free to take action in accordance with either applicable rules for a comparative assessment of merits of 550 the respondent and others who may be eligible to officiate in the post of a Senior Station Incharge or to take disciplinary proceedings it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary to rules of natural justice embodied in Article 3112
It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a finding
This we think was also the position in Sughar Singh s case supra 
This appeal is dismissed with costs
VPS Appeal dismissed


Summary:
The respondent was reverted from the higher post in which he was officiating to his substantive post by an order which stated that he was not fit yet  for the higher post
His juniors continued to officiate in the higher post
Till some time before the order of reversion the respondent was praised by his superior officers but during a period of about six months before the reversion there was a spurt of warnings complaints and adverse remarks alleging disrespect disobedience to orders and that he cast aspersions on his superior officer
the respondent asked for particulars to meet the allegations but they were not given to him
His representation against the last adverse entry was pending when the reversion order was passed
He challenged the order and the High Court following State of UP vs Sughar Singh  quashed the order holding that the reversion was a punishment in the light of the circumstances preceding the order from the terms of the order and its effect on the respondent s future and that there was a violation of rules of natural justice
In appeal to this Court by special leave the appellant contented that the High Court misunderstood Sughar Singh s case
Dismissing the appeal  HELL 1 As the reversion order was punitive and passed contrary to the rules of natural justice embodied in article 3112 it must be quashed
The authorities are however free to take action either in accordance with applicable rules for a comparative assessment of the merits of the respondent and others who may be eligible or to take disciplinary proceedings
550A B a In Sughar Singh s case this Court was only following the law on article 3112 as laid down repeatedly
In that case also the reversion of Sughar Singh was apparently not punitive but since it could not be explained except as a result of an adverse entry made two years earlier it was held to be by way of punishment
On this view it was not necessary to consider whether there was a violation of article 16 but this Court held that there was
What weighed with this Court was not only that there was a sufficient element of punishment in reverting him so that article 3112 had to be complied with but that there was also enough of impropriety and unreasonableness in the action taken solely for a very stale reason which had become logically disconnected and extraneous to make out a case of malice in law  if not malice in fact 
545H 546F b Whether an apparently innocuous order is punitive or amounts to unjustifiable discriminatory action violating either article 311 or article 16 depends on the facts of the case
549E c This Court has in Shamsher Singh vs State of Punjab   laid down authoritatively the conditions necessary in such cases for the applicability of article 3112 after considering all the previous cases and there is no scope for any misapprehension of the law
544C d As regards article 16 before it is held to have been violated there must be discrimination between one Government servant and another similarly placed
which cannot be reasonably explained except on the basis of malice in law  or malice in fact 
But the person who alleges such malice in law must 541 satisfactorily establish it on proved or admitted facts as in State of Mysore vs A Kulkarni AIR When the allegations are of malice in fact  which are disputed and require a detailed adduction of evidence or examination of witnesses the Court will leave the party aggrieved to an ordinary civil suit and will not exercise its discretionary power under article 226
Reversion of an officer as a result of administrative exigencies without any suggestion of malice in law or in fact is unaffected by Sughar Singh s case and is not vitiated even if some Government servants junior to him have not been reverted
547B D F G e The facts of the present case are similar to those of Sughar Singh s case and the High Court was right in holding that there was a violation of the principles of natural justice embodied in article 3112
548F G There were no administrative reasons for the respondent s reversion
If there had been anything really serious against him proceedings under article 3112 should have been instituted
The sudden reversion for the reason given in the order amounts to unjustified stigma which could not be said to be devoid of the element of punishment
548G H 549D L f If he was really unfit as compared with his juniors there could have been a fair comparison with them at a time when such assessment is called for under the rules rules should be made if there are none and on such a comparative assessment of merits the juniors could have been preferred ensuring that there was no violation of Act
Dealings of superior officers with their subordinates in Government must be shown to be based on fair play and reason
But it is not necessary to invoke the aid of article 16 to quash the order
549 C D E  550B 2 Even if the High Court should not have interfered it is not a fit ease for interference by this Court under article 136 as it is still open to the authorities to proceed in a just and legal way against the respondent if necessary
549F H