Case: The State Of Bombay Vs. F.A.Abraham

Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a very transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In the case of an appointment to a permanent post of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. 7. The respondent had of course no right to the post of Deputy Superintendent of Police to which he had been given an officiating appointment and he does not contend to the contrary. He cannot, therefore, without more, complain if he is sent back to his original post. This is what happened in this case even if it be taken that the respondent had been reverted to his original rank because he was found unsuitable for the higher rank to which he had been given an officiating appointment. It is, however, true that even an officiating person may be reverted to his original rank by way of punishment. It was, therefore, observed in Parshotam Lal Dhingra case [1958 - I L.L.J. 544] (vide supra) (p. 562) : . . . Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that although in form the Government had purported to exercise its 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, the Government has terminated the employment as and by way of penalty. It is quite clear that the circumstances mentioned in this observation have not occurred in the present case. The reversion has not in any way affected the respondent so far as his condition and prospect of service are concerned. He, of course, lost the benefit of the appointment to the higher rank but that, by itself, cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. He had been reverted in exercise of a right which the Government had under the terms of the officiating employment. The High Court seems to us to have been in error in thinking that the Governments refusal to supply the respondent with the reasons why action was taken against him proved that the reversion was a reduction in rank by way of punishment; the refusal cannot prove that. It may give rose to a suspicion about the motive which led the Government to take the action, but it is now firmly established that if the action is justifiable under the terms of the employment, then the motive inducing the action is irrelevant in deciding the question whether the action had been taken by way of punishment - see Parshotam Lal Dhingra case [1958 - I L.L.J. 544 at p. 562] (vide supra). It does not require to be repeated now that, unless the reversion is by way of punishment, S. 240(3) is not attracted. 8. The High Court seems to have been in error also in drawing an inference from holding of the departmental inquiry that the respondent must have been reduced in rank by way of punishment. The departmental inquiry was held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make inquiries about his suitability. This is all that the Government did in this case. This inquiry cannot show, whatever the findings may have been, that the reversion earlier made was by way of punishment.Mr. Anthony for the respondent referred to State of Bihar v. Gopi Kishore Prasad [1960 - I L.L.L. 577] in which it was observed (pp. 579 - 580) : But, if instead of terminating such a persons service without any inquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of the service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. 9. That case dealt with discharge of a probationer officer on the ground that he was unsuitable. The observation there made was considered by this Court in the later case of State of Orissa v. Ram Narayan Das [1961 - I L.L.J. 552] where it was said : The third proposition in the later case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. 10. We would repeat that in the present case the enquiry was concerned with ascertaining the suitability of the respondent for the higher rank and was not a punishment. 11. At one stage, Mr. Anthony was inclined to argue that the enquiry was really a part of the original order of reversion and that it had been deliberately postponed so as to avoid the applicability of S.240(3) of the Government of India Act, 1935. No such case is made in the plaint. Neither was it made in the Courts below, nor can it be based on their findings. Such a case cannot now be made. 12.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The judgments of the High Court and the learned Additional District Judge seem to us to be clearly unsustainable. The Courts below held that the respondent had been reduced in rank in violation of the terms of S.240(3) of the Government of India Act, 1935, which corresponds to Art. 311 of the Constitution, inasmuch as he was not given an opportunity to show cause against the order proposed to be made. It is not in dispute that the opportunity had not been given. In our view, however, for reasons to be presently stated, the respondent was not entitled to that opportunityThe High Court seems to have been in error also in drawing an inference from holding of the departmental inquiry that the respondent must have been reduced in rank by way of punishment. The departmental inquiry was held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make inquiries about his suitability. This is all that the Government did in this case. This inquiry cannot show, whatever the findings may have been, that the reversion earlier made was by way of punishmentNo such case is made in the plaint. Neither was it made in the Courts below, nor can it be based on their findings. Such a case cannot now be made.