STATE OF BIHAR Vs. SHIVA BHIKSHUK MISHRA

JUDGEMENT

(1.) This is an appeal by certificate from a judgment of the Patna High Court. The respondent was holding the substantive post of a Sergeant in the police force till July 31, 1946 in the State of Bihar. On August 1, 1946 he was promoted to officiate in the higher post of Subedar. On January 9, 1948 while he was still holding the substantive post of a Sergeant he was promoted to officiate temporarily as a Subedar-Major. It appears that on October 3, 1950 the Commandant of the Bihar Military police, Muzaffarpur wrote to the Deputy Inspector General of Police, Armed Forces, mentioning an incident between the respondent and his orderly on the night of September 22, 1950. The incident involved a physical assault by the respondent on the orderly. The Commandant made an inquiry in the matter and expressed the opinion that the respondent had actually assaulted his orderly by taking the law into his own hand instead of brining any complaint which existed against the orderly to the notice of the higher authorities for proper action. In the penultimate paragraph of his letter the Commandant wrote, "to drop the above Incident without taking action, in order to prevent any re-occurrence of the Subedar Major's gross misconduct, I suggest he be censured for his unsatisfactory behaviour where he failed to maintain the required discipline." The Deputy Inspector General wrote a note to the Inspector General as follows:

(2.) In February 1954 the respondent filed a suit for a declaration that his demotion from the rank of a Subedar Major to that of Sergeant and dismissal from service were wrongful, illegal and inoperative and that he had all along remained a Subedar -Major. He further claimed a decree for a sum of Rs. 3118/- on account of arrears of pay as detailed in Sch. I attached to the plaint with future Interest. The trial Court dismissed the suit on the view that the order of reversion did not contain any stigma on the competence and character of the respondent and that it had not been made by way of punishment. The High Court on appeal reversed the decision of the trial court on the finding that the "reversion was not in the usual course or for administrative reasons but it was after a finding on an inquiry about some complaint against the plaintiff and by way of punishment to him". The order of dismissal was set aside on the short ground that if the respondent continued to remain in the post of Subedar-Major even in an officiating capacity on the date with effect from which the order of dismissal was passed the provisions of Art. 311 (1) had not been complied with. The Deputy Inspector General who had passed the order of dismissal was subordinate to the authority by which he had been appointed to officiate in the post of Subedar Major, that authority being the Inspector General of Police. The dismissal order was, therefore, invalid and not binding on the respondent. He was granted the declaration asked for by him together with a decree for Rs. 3118/- with future interest at the rate of 6% per annum.

(3.) The sole point which falls for determination is whether the reversion of the respondent from the post of officiating Subedar Major was made in circumstances which would attract the applicability of Article 311 (2) of the Constitution. Mitter J., delivering the judgment of this court in State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234 = (AIR 1968 SC 1089) stated the following propositions on a consideration of the numerous decisions on the point :