Parshotam Lal Dhingra v. Union of India

Supreme Court of India, 1 November 1957, 5 judges, 1958 AIR 36, 1958 SCR 828

The Court held that Article 311 protects permanent, temporary and officiating Government servants alike, but applies only to dismissal, removal or reduction in rank by way of punishment; the appellant's reversion from an officiating post was not such a punishment.

Facts

The appellant joined railway service in 1924 and rose to Chief Controller, a Class III post. In 1951 he was selected and appointed to officiate in Class II service as Assistant Superintendent, Railway Telegraphs. After adverse remarks in his confidential report for the year ending March 31, 1953, the General Manager noted that he should revert as a subordinate till he made good his shortcomings. On August 19, 1953, an order appointed another officer in his place and reverted him to Class III. His appeals failed, though the Railway Board said the reversion would not bar future promotion. A single judge of the Punjab High Court allowed his writ petition under Article 226 for non compliance with Article 311(2); a Division Bench reversed. He appealed on a certificate.

Questions before the Court

Does Article 311 protect only permanent Government servants, or also those holding temporary posts or officiating?
What do "dismissed", "removed" and "reduced in rank" in Article 311 mean, and when is a termination or reversion by way of punishment?
Did the reversion of the appellant from his officiating Class II post to his substantive Class III post amount to reduction in rank under Article 311(2)?

What the Court held

Like Article 310, Article 311 makes no distinction between permanent and temporary members of the services or between permanent and temporary posts; its protections extend to both, and decisions holding the contrary view cannot be supported.
"Dismissed", "removed" and "reduced in rank" denote the three major punishments under the service rules. Article 311(2) applies only where the Government intends to inflict one of these punishments, not to every termination of service.
Where a servant has a right to the post or rank (substantive permanent appointment, fixed term temporary appointment, or quasi permanent service), termination or reduction is by itself a punishment. A probationer or officiating servant has no such right, and terminating or reverting him is not ordinarily a punishment, whatever the motive.
Even without a right to the post, an order is a punishment if it is founded on misconduct, negligence or inefficiency, or if it visits evil consequences such as forfeiture of pay or allowances, loss of seniority, or stoppage or postponement of future promotion. Words like "terminate" or "discharge" are not conclusive.
The appellant only officiated in the higher post, had no right to it, and the order did not forfeit his chances of promotion or affect his seniority. He was not reduced in rank by way of punishment, so Article 311(2) did not apply. The appeal was dismissed with costs.

Why it matters

The judgment settles that Article 311 covers temporary and officiating servants as well as permanent ones, and lays down two tests for when a termination or reversion is a punishment: whether the servant had a right to the post or rank, and whether the order visits him with evil consequences.

In the Court's words

Copied from the official judgment; each passage links to its page.

“In our judgment, just as Art. 310, in terms, makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Art. 311, in our view, make no distinction between the two classes, both of which are, therefore, within its protections”

S.R. Das, C.J.Page 13 of the judgment

“One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311.”

S.R. Das, C.J.Page 21 of the judgment

“But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with.”

S.R. Das, C.J.Page 23 of the judgment

“He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment.”

S.R. Das, C.J.Page 24 of the judgment

Provisions interpreted

Article 311, Constitution
Article 310, Constitution
Section 240, Government of India Act, 1935

Case and bench

Parties: Parshotam Lal Dhingra v. Union of India
Case: Civil Appeal No. 65 of 1957
Decided: 1 November 1957
Bench: Das, Sudhi Ranjan (CJ), Aiyyar, T.L. Venkatarama, Das, S.K., Sarkar, A.K., Bose, Vivian
Opinions: Majority 4:1. The judgment of S.R. Das C.J., Venkatarama Aiyar, S.K. Das and A.K. Sarkar JJ. was delivered by S.R. Das C.J.; Bose J. delivered a separate judgment dissenting and would have allowed the appeal.

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