{"id":100045,"date":"1971-01-19T00:00:00","date_gmt":"1971-01-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-kishan-dass-on-19-january-1971-2"},"modified":"2016-12-07T16:58:25","modified_gmt":"2016-12-07T11:28:25","slug":"state-of-punjab-vs-kishan-dass-on-19-january-1971-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-kishan-dass-on-19-january-1971-2","title":{"rendered":"State Of Punjab vs Kishan Dass on 19 January, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Punjab vs Kishan Dass on 19 January, 1971<\/div>\n
Equivalent citations: 1971 AIR 766, \t\t 1971 SCR (3) 389<\/div>\n
Author: Shelat<\/div>\n
Bench: Shelat, J.M.<\/div>\n
           PETITIONER:\nSTATE OF PUNJAB\n\n\tVs.\n\nRESPONDENT:\nKISHAN DASS\n\nDATE OF JUDGMENT19\/01\/1971\n\nBENCH:\nSHELAT, J.M.\nBENCH:\nSHELAT, J.M.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1971 AIR  766\t\t  1971 SCR  (3) 389\n 1971 SCC  (1) 319\n CITATOR INFO :\n E\t    1984 SC 885\t (23)\n\n\nACT:\nConstitution of India.\tArt. 311-Forfeiture of past service-\nIf amounts to reduction in rank.\n\n\n\nHEADNOTE:\nPursuant to certain charges against the respondent, a police\nconstable,  his\t entire service with permanent\teffect\twere\nforfeited,  which meant reducing his salary to the  starting\npoint  in the time scale for constables.  An appeal  by\t him\nbefore the Deputy Inspector General having failed, be  filed\na  suit.  The trial court decreed the suit holding that\t the\norder amounted to reduction in rank, therefore, Art.  311(2)\nof  the\t Constitution  was attracted and as  no\t show  cause\nnotice was served before the order was passed, the order was\nvitiated and was bad.  The decree was affirmed by the  first\nappellate court and thereafter in second appeal by the\tHigh\nCourt.\tAllowing the appeal by the State, this Court,\nHELD : The expression \"reduction in rank\" in Art. 311(2) has\nto be construed according to the well-established meaning it\nhas acquired, as in 'the case of the other two\texpressions,\nnamely, 'dismissal' and 'removal' in that Article, under the\nvarious\t service  rules\t and under the\tprovisions  in\tthat\nregard\tin  the\t Constitution Acts of 1915  and\t 1935.\t The\nexpression  \"reduction in rank\" in the\tArticle,  therefore,\nmeans  reduction from a higher to a lower rank or post\twhen\nimposed\t as a penalty.\tTherefore, an order  forfeiting\t the\npast   service\twhich  has  earned  a\tGovernment   servant\nincrements  in the post or rank he holds, howsoever  adverse\nit  is to him, affecting his seniority within the rank\tto\nwhich  he belongs or his future chances or  promotion,\tdoes\nnot  attract  the  Article.   His  remedy,  therefore,\t .is\nconfined to the rules of service governing his post. [397 E]\nHigh Court, Calcutta v. Amal Kumar Roy,<\/a> [1963] 1 S.C.R.\t 437\nand  Shitla  S. Shrivastava v. North Eastern Rly.  [1963]  3\nS.C.R. 61, followed.\nParshotam Lal Dhingra v. Union of India,<\/a> [1958] S.C.R.\t828.\ndisapproved.\nRupnarain  Singh, State of Orissa, A.I.R. 1959, Orissa\t167,\nP.  C.\tWadhwa v. Union of India,<\/a> [1964] 4  S.C.R.  598\t and\nDubesh Chandra Das v.\t Union\tof India, A.I.R.  1970\tS.C.\n77, distinguished.\nShri Madhav Laxman Vaikunthe v. State of Mysore'<\/a>  [1962]  1\nS.C.R.\t886 and Afzalur Rahman v. Emperor, A.I.R. 1943\tF.C.\n18, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 359 of 1967.
\nAppeal\tby special leave from the judgment and\torder  dated
\nJuly  29, 1966 of the Punjab High Court in Civil Misc.\t No.
\n1144-C\tof 1966 in Regular Second Appeal No. 340 of 1966.
\nV.   C. Mahajan, for the appellant.\n<\/p>\n
A.   N. Nag, for the respondent.\n<\/p>\n
390<\/span><\/p>\n
The Judgment of the Court was delivered by
\nShelat,\t J.  The  respondent was at  all  material  times  a
\nconstable  in  the Punjab Police Service and was  posted  at
\nAmbala.\t In November 1960, he was served with a charge sheet
\nattributing  to him arrogance towards his superior  officers
\nand  indiscipline.   A departmental enquiry  was  admittedly
\nheld in accordance with the procedure laid down therefor  in
\nthe Punjab Police Rules, 1934.\tThe said charges having been
\nheld  to have been proved, an order followed forfeiting\t his
\nentire\tservice with permanent effect.\tThis meant  bringing
\ndown  his salary to Rs. 45\/- per month, which would  be\t the
\nsalary\tpayable to a constable at the staring point  of\t his
\nservice.  An appeal by him before the Deputy Inspector-Gene-
\nral  having  failed, he tiled a suit in the  Court  of\tSub-
\nJudge,, Ambala.\n<\/p>\n
The  suit was on the basis that- the said order amounted  to
\nreduction  in  rank,  that therefore,  Art.  311(2)  of\t the
\nConstitution  was  attracted and that no show  cause  notice
\nagainst\t the action proposed against him having been  served
\nupon  him  before the said order was passed, the  order\t was
\nvitiated  and  was  bad.   The\tTrial  Court  accepted\tthis
\ncontention   and  decreed  the\tsuit.\tAn  Appeal  by\t the
\nappellant-State\t failed\t as the District Judge,\t relying  on
\nRupnarain  Singh  v. State of Orissa(1) held that  the\tsaid
\norder  amounted to reduction in rank and the respondent\t was
\ntherefore entitled to the procedural safeguards laid down in
\nArt.  311(2).  A second appeal by the State before the\tHigh
\nCourt was summarily rejected.  Hence this appeal founded  on
\nspecial leave granted by this Court.\n<\/p>\n
The  only  question arising in this appeal,  the  facts\t not
\nbeing\tin   dispute, is whether  the  order  forfeiting-the
\nrespondent’s service, which meant reducing his salary to the
\nstarting point in the time scale for constables, amounted to
\nreduction  in rank within the, meaning of Art. 311(2).\t The
\nrespondent being a constable., there was no question of\t his
\nbeing reduced from a higher post or rank to a lower post  or
\nrank.\tThe  order,  nonetheless,  reduced  the\t  emoluments
\nreceived by him as it deprived him of the increments  earned
\nby  him as a result of the approved service, he had put\t in,
\nhaving been forfeited.\tIt also affected his seniority,\t and
\ntherefore,  chances of promotion.  The question is,  whether
\nfor that reason the order is tantamount to reduction in rank
\nattracting, Art. 311(2).\n<\/p>\n
Rule 1.13 of he Punjab Police Service Rules (hereinafter re-
\nferred\tto  as the Rules) provides that\t a  gazetted  police
\nofficer’, means a police officer appointed under s. 4 of Act
\nV of 1861.\n<\/p>\n
(1)  A.T.R. 1959 Orissa 107.\n<\/p>\n
391<\/span><\/p>\n
and  includes  the  Inspector  General,\t Deputy\t Inspectors-
\nGeneral,   Assistant  Inspectors-General,   Superintendents,
\nAssistant  Superintendents and Deputy Superintendents.\t The
\nexpression  “enrolled police officer” means police  officers
\nappointed   under  s.  7  of  the  said\t Act  and   includes
\ninspectors,   sergeants,   sub-inspectors,   asistant\tsub-
\ninspectors, head constables and constables.  The  expression
\n“upper subordinate” includes all enrolled police officer  of
\nand  above  the\t rank of assistant  sub-inspector,  and\t the
\nexpression  “lower subordinate” includes all other  enrolled
\npolice\tofficers.  There is thus a hierarchy in\t the  Police
\nService of the State comprised of several posts, the post of
\na  constable being the last rung in the ladder.\t Rule  13.1,
\nwhich deals with promotion of police officers from one\trank
\nto another, provides that- such promotions from one rank  to
\nanother and from one grade to another in the same rank shall
\nbe  made by selection tampered by seniority. Cl. 3  of\tthat
\nrule  lays down that for purposes of  regulating  promotion.
\namongst enrolled police officers, six promotion lists, A, B,
\nC, D, E and F should be maintained.  Lists A, B, C and D are
\nmeant  to  regulate  promotion to  the\tselection  grade  of
\nconstables and to the ranks of head constables and assistant
\nsub-inspectors.\t  List E regulates promotion to the rank  of
\nsub-inspector and List F regulates promotion to the rank  of
\nInspector.  Rule 13.5 deals with promotion of constables  to
\nselection  grade  and r. 13.6 provides that a  list,  called
\nList A, shall be maintained by each Superintendent of Police
\nof  constables eligible under r. 13.5 for promotion  to\t the
\nselection  grade  of constables.  Rule 13.7 provides  for  a
\nlist,  called  List  B,\t divided  into\ttwo  parts,  namely,
\nselection grade constables considered suitable as candidates
\nfor  the Lower School course at the Police Training  School,
\nand constables, selection or time-scale, considered suitable
\nfor  drill and other special courses at the Police  Training
\nSchool.\t  Rule 13.8 lays down that promotion to the post  of
\nhead  constable has to be made in accordance with  principle
\ndescribed  in sub-rules (1) and (2) of r. 13.1. Rule  13.8-A
\nprovides that infliction of any major punishment would be  a
\nbar  to admission to or retention in lists A, B or  C.\tRule
\n16.1  lays down diverse punishments which can be awarded  to
\nmembers\t of  the service in accordance with  the  provisions
\ncontained  in  these Rules.  These punishments\tare  :\t(1)
\ndismissal,  (2)\t reduction,  (3) stoppage  of  increment  or
\nforfeiture  of approved service for increment, (4) entry  of
\ncensure,  (5)  confinement  to, quarters for  a\t period\t not
\nexceeding 15 days, (6) extra guards. fatigue or other  duty,
\nand punishment drill for certain days.\tUnder r. 16.1(3),  a
\nmajor\tpunishment  means  any\tauthorized   punishment\t  of
\nreduction, withholding of increments, forfeiture of approved
\nservice,  dismissal  and  every\t judicial  conviction  on  a
\ncriminal charge.  Rule 16.4 defines ‘reduction’ and provides
\nthat  a\t police officer may be reduced (a) to a\t lower\trank
\n(except in the case-\n<\/p>\n
392<\/span><\/p>\n
of  sergents and of constables on the time-scale), (b)\tfrom
\nthe selection grade of a rank to the time scale of the\tsame
\nrank,  (c)  if in a graded rank to a lower position  in\t the
\nseniority list of his grade or to a lower grade in his rank.
\nRule 16.5 provides that the increment of a police officer on
\na  time scale may be withheld as a punishment.\tCl.  (2)  of
\nthat  rule provides that approved service for increment\t may
\nbe  forfeited, either temporarily or permanently,  and\tsuch
\nforfeiture  may entail either the deferment of an  increment
\nor  increments or a reduction in pay.  It  further  provides
\nthat the order must state whether the forfeiture of approved
\nservice is to be permanent, or, if not, the period for which
\nit has been forfeited.\tThus, under rules 16.4 and 16.5\t the
\ntwo punishments of reduction and forfeiture of service\tare
\ntwo   distinct\tpunishments.   Rule  16.24  lays  down\t the
\nprocedure  to  be followed in departmental  enquiries.\t Cl.\n<\/p>\n
(ix)  of that rule clearly provides that it is only  in\t the
\ncase  of an order of dismissal or reduction in rank  that  a
\nsecond\tshow  cause  notice  against  the,  proposed  action
\nagainst a police officer has to be served before an order is
\npassed\tagainst\t him.  Such a second show cause\t notice\t is,
\ntherefore,  not required to be served in the case  of  other
\nmajor or minor punishments.  There is no dispute that in the
\npresent\t case  the procedure laid down in  these  Rules\t and
\napplicable to the respondent was followed.
\nThe   contention,  however,  was  that\tthough\t the   Rules
\ndistinguish the two punishments of reduction and  forfeiture
\nof  service and treat them as distinct, there  were  certain
\ndecisions of this Court which have held that for an order to
\namount\tto  reduction  in rank within the  meaning  of\tArt.
\n311(2)\tit  was\t necessary that it must\t actually  reduce  a
\ngovernment  servant from a higher to a lower post  or  rank,
\nand that even if the order affected adversely his  seniority
\nor chances of promotion within the rank or cadre to which he
\nbelongs, it would still constitute reduction in rank.
\nParshotam Lal Dhingra v. Union of India<\/a>(1) was one such case
\non which counsel leaned heavily.  But the question there was
\nwhether\t the  reversion of the the appellant from  Class  11
\nservice, wherein he was at the relevant time officiating, to
\nClass III service to which he permanently belonged, amounted
\nto  punishment, and therefore, attracted Art.  311(2).\t The
\ndecision  laid\tdown the principle that\t reduction  in\trank
\nwould be punishment if it carried with it penal consequences
\nand  that the two tests to be applied were (1)\twhether\t the
\nservant\t had the right to the post or Tank, and (2)  whether
\nevil consequences, such as forfeiture of pay or\t allowances,
\nloss of seniority in his substantive rank, stoppage
\n(1)  (1958) S.C.R. 828.\n<\/p>\n
393<\/span><\/p>\n
or post-ponement of future chances of promotion followed  as
\na  result of reduction in rank.\t The appellant in that\tcase
\nwas  holding an officiating post and had therefore no  right
\nunder  the Railway Code to continue in it.  The\t Court\theld
\nthat  since  under  the general\t law  such  appointment\t was
\nterminable  at any time on reasonable notice, the  reduction
\ncould  not operate as a forfeiture of any right, and  there-
\nfore,  the order could not be said to have visited him\twith
\nany  evil consequences.\t Consequently, it did not amount  to
\nreduction  in rank by way of punishment.  The decision\talso
\nlaid down that the words “dismissal”, “removal” and  “reduc-
\ntion in rank” used in Art. 311(2) were words of art,  having
\ntechnical  meanings, they having been adopted  from  service
\nrules  prevailing earlier, such as Classification  Rules  of
\n1920  and  1930, and having  therefore\tacquired  well-known
\nmeanings.    Under  those  rules,  dismissal,  removal\t and
\nreduction  in rank were major punishments providing  special
\nprocedural protection.\tOn examination of the history of the
\nservice\t rules,\t s. 96B(i) of the Government of\t India\tAct,
\n1915, and s. 240 of the 1935 Act, the Court held that  “both
\nat  the date of the commencement of the 1935 Act and of\t our
\nConstitution  the words “dismissed”, “removed” and  “reduced
\nin  rank”, as used in the service rules, were–\t well-under-
\nstood as signifying or denoting the three major\t punishments
\nwhich  could  be  inflicted on\tGovernment  servants”.\t The
\ndecision  concluded  that  “the principle  is  that  when  a
\nservant\t has right to a post or to a rank either  under\t the
\nterms of the contract of employment, express or implied,  or
\nunder the rules governing the conditions of his service, the
\ntermination  of\t the  service  of  such\t a  servant  or\t the
\nreduction  to  a lower post is by itself and prima  facie  a
\npunishment, for if operates as a forfeiture of his right  to
\nhold  post or that rank and to get the emoluments and  other
\nbenefits  attached  thereto”.  The passage in  the  judgment
\nemphasised before us was :\n<\/p>\n
\t      “A reduction in rank likewise may be by way of
\n\t      punishment  or it may be an  innocuous  thing.
\n\t      If  the  Government servant has a right  to  a
\n\t      particular rank, than the very reduction\tfrom
\n\t      that  rank will operate as a penalty,  for  he
\n\t      will  then lose the emoluments and  privileges
\n\t      of that rank.  If, however, he has no right to
\n\t      the  particular  rank, his reduction  from  an
\n\t      officiating  higher  rank to  his\t substantive
\n\t      lower   rank   will  not\t ordinarily   be   a
\n\t      punishment.   But\t the  mere  fact  that\t the
\n\t      servant  has no title to the post or the\trank
\n\t      and  the Government has, by contract,  express
\n\t      or  implied, or under the rules, the right  to
\n\t      reduce him to a lower post does not mean\tthat
\n\t      an order of reduction of a servant to a  lower
\n\t      post or rank cannot in any circumstances be  a
\n\t      punishment.   The\t real test  for\t determining
\n\t      whether the reduction in such cases is
\n\t      394<\/span>
\n\t      or is not by way of punishment is to find\t out
\n\t      if the order for the reduction also visits the
\n\t      servant with any penal consequences.”\n<\/p><\/blockquote>\n
According  to  this decision, reduction in rank\t within\t the
\nmeaning\t of Art. 311(2) means reduction from a higher  to  a
\nlower rank or post in the hierarchy of the service to  which
\na  government  servant seeking protection  of  that  article
\nbelongs\t and’ not reduction in the same rank,  e.g.,  losing
\nplaces in seniority in the rank to which he belongs.
\nShri  Madhav  Laxman  Vaikunthe v. The\tState  of  Mysore<\/a>(1)
\nanother\t decision  relied  on by counsel, was a\t case  of  a
\nMamlatdar, officiating as a District Deputy Collector.\t His
\nreversion  from the officiating post to his  permanent\tpost
\nwas held to be punishment attracting Art. 311 (2).  This was
\na  clear case of reduction in rank as the reversion  brought
\ndown  the appellant from a higher to a lower post.   It\t did
\nnot merely affect his seniority or the stage at which he was
\nin  the time-scale to which he belonged in the hierarchy  of
\nservice.\n<\/p>\n
The  decision in point really is The High Court Calcutta  v.
\nAmal  Kumar Roy<\/a>(2) where the respondent, a Munsif,  was\t ex-
\ncluded by the High Court from consideration for the post  of
\na  Subordinate Judge for a year thereby depriving him  eight
\nplaces\tin  the\t cadre of Subordinate  Judges  when  he\t was
\nappointed an Additional Subordinate Judge.  The respondent’s
\ncontention   was  ,that\t such  an  exclusion   amounted\t  to
\nwithholding  of promotion or reduction in rank.\t  The  first
\npart  of the contention was rejected on the ground  that  he
\nhad no right to promotion and the second on the ground\tthat
\ndeprivation,  of eight places in seniority in the same\trank
\ndid  not  constitute reduction in rank.\t This  decision\t was
\nfollowed in Shitla S. Srivastava v. North Eastern Railway<\/a>(1)
\nwhere  it was held that the removal of the appellant’s\tname
\nfrom  a provisional panel of persons for  consideration\t for
\nhigher\tposts  did not attract Art. 311 (2) as\tit  did\t not
\namount\tto  reduction  in rank.\t The  Court  held  that\t the
\nexpression “rank” in Art. 311(2) had reference to a person’s
\nclassification\tand  not his particular place  in  the\tsame
\ncadre in the heirarchy of the service to which he belongs.
\nIt  is thus clear that reduction in rank within the  meaning
\nof  Art.  311(2), as the expression itself  suggests,  means
\nreduction  from\t a higher to a lower rank or  post  and\t not
\nmerely\tlosing\tplaces\tin the rank or cadre  to  which\t the
\nGovernment servant belongs, and consequently, his  seniority
\nwithin such cadre or rank.\n<\/p>\n
(1)  [1962] 1 S.C.R. 886.\n<\/p>\n
(3) [1966]3 S..C.R. 61.\n<\/p>\n
(2) [1963]1 S.C.R.437.\n<\/p>\n
395<\/span><\/p>\n
This  would be so, even if as a result of  the\tGovernment’s
\naction. he loses a higher salary or his chances of promotion
\nto  a higher post are reduced.\tFor such action, the  remedy
\nwould  be  under the rules governing, the  service  and\t not
\nunder  Art.  311(2)  as\t such  action  does  not  amount  to
\nreduction in rank as understood for the purposes of Art. 311
\n(2).\n<\/p>\n
Counsel for the respondent, however, argued that there\twere
\nother decisions which have held otherwise and assisted\thim.
\nP.  C.\tWadhwa v. Union of India<\/a>(1) was\t one  such  decision
\nwhich,\the  thought,  assisted\thim.   In  that\t case,\t the
\nappellant  was officiating in the senior time-scale and\t was
\nposted\tat  Ferozepore as an  Additional  Superintendent  of
\nPolice.\t  In July 1958, he was reverted to  his\t substantive
\npost.  The reason for the reversion was that he was tried as
\na  Superintendent  of Police and was found to  be  immature.
\nThe  record  showed that the reversion was not\tdue  to\t the
\nreturn\tof the permanent incumbent from leave or  deputation
\nor  for any other administrative reason and  other  officers
\njunior\tto him continued in the senior time-scale  while  he
\nwas reverted.  The record also revealed that an enquiry\t was
\nnot  resorted  to only for the reason that it would  take  a
\nlong  time.  His contention in these circumstances was\tthat
\nhis  reversion\tamounted  to reduction in  rank.   That\t was
\naccepted  because  it  would seem from the  facts  that\t the
\nreversion was from senior time-scale to junior time-scale of
\nthe service.  Though both the posts were cadre posts in\t the
\nPolice\tService,  the  reversion was from the  post  of\t the
\nAdditional  Superintendent  of Police to  one  of  Assistant
\nSuperintendent of Police, the former obviously being a\tpost
\nhigher than the latter.\t Although both the posts were in the
\nsame  cadre, promotion from the junior to the  senior  time-
\nscale  was  by\tseniority.  It\tis  clear,  therefore,\tthat
\nappointment of one in the junior time-scale to a post in the
\nsenior time-scale was promotion, and therefore,\t appointment
\nto  a higher post.  Such is not, however, the  position,  in
\nthe instant case.\n<\/p>\n
Dubesh\tChandra Das v. Union of India (2) was another  deci-
\nsion  relied upon by Mr. Nag.  The appellant there  was\t the
\nChief  Secretary of Assam and a member of the  Indian  Civil
\nService.   He  was  appointed  a  Secretary  in\t the   Union
\nGovernment, a tenurepost, the tenure period of which was  to
\nexpire\tin  July 1969.\tIn September 1966, he was  asked  to
\nchoose between reversion to the service of his parent  State
\nor compulsory retirement.  He, complained against the  order
\nby  a writ petition contending that the order was  a  stigma
\nand  amounted to reduction in rank, which, therefore,  could
\nnot be passed without undergoing the procedure laid down  in
\nArt. 311(2).  His appointment as the Secre-
\n(1) [1964]4S.C.R.598.\n<\/p>\n
(2) A.I.R. 1070 S.C. 77.\n<\/p>\n
396<\/span><\/p>\n
tary  at the Centre was not by way of deputation but was  by
\nway of appointment to a tenure post.  This Court held, on an
\nexamination  of\t the  rules,  that  cadres  for\t the  Indian
\nAdministrative Services were to be found in the States only,
\nthat there were no cadres in the Government of India, that a
\nfew  of them were, however, intended to serve at the  Centre
\nand  when  they did so, they enjoyed better  emoluments\t and
\nbetter\tstatus.\t Such an appointment, the Court held,  meant
\npromotion  to  a  higher post.\tIn  the\t circumstances,\t the\n<\/p>\n
-order\tamounted to the appellant’s reduction from a  higher
\nto  a  lesser  rank.   This, again, was\t a  case  where\t the
\ngovernment servant was reverted from a post higher than\t the
\npost  of the Chief Secretary, Assam, and not a reduction  in
\nthe  same  time-scale post or deprivation of places  in\t the
\nsame   time-scale  post\t thereby  adversely  affecting\t his
\nseniority therein or chances of\t   promotion.
\nThe decision of the High Court of Orissa in Rupnarain Singh
\nv.   Orissa(1) would apparently assist the respondent,\tfor,
\nthe  impugned  order  there was similar to the\tone  in\t the
\ninstant case.  That order directed that the petitioner,\t who
\nwas  then  serving as a forester, be reduced to\t the  lowest
\nscale of Rs. 50,1- in the, scale of pay of Rs. 50-2-70 fixed
\nfor  the foresters.  The High Court upheld’ the\t contentions
\nof the petitioner, viz., (1) that the order was\t punishment,
\nand  (2)  that it amounted to reduction in rank\t within\t the
\nmeaning of S. 240(3) of the 1935 Act and Art. 311(2).  These
\nconclusions  were reached on two premises.  ‘The  first\t was
\nthat  r.  2  of the Bihar and  Orissa  Subordinate  Services
\nDiscipline  and Appeal Rules in cl. (iii) provided,  amongst
\nothers, the punishment of “reduction to a lower post or time
\nscale or to a lower stage in the time-scale”.  Following the
\ndecision in Afzalur Rahman v. Emperor(2) where the Court had
\nobserved that in construing s. 240 of the 1935 Act, the long
\nstanding service practice based on statutory rules in  force
\nlong  before  the passing of the 1935 Act,  and\t which\twere
\ncontinued  in force by that Act. should be  considered,\t the
\nHigh  Court held that the expression “reduction in rank”  in
\ns.  240(3) must also include reduction to a lower  stage  in
\nthe  time-:scale  as r. 2 (iii) had treated reduction  to  a
\nlower  post  and “reduction to a lower stage  in  the  time-
\nscale” as one kind of punishment.  Such a reasoning does not
\napply  to  the present case because r. 16.1  of\t the  Punjab
\nPolice Rules makes a ‘clear distinction between\t “reduction”
\nand stoppage of increment ,or forfeiture of approved service
\nfor   increment,  the  two  being  distinct   and   separate
\npunishments permissible under that rule.  The second premise
\nupon  which  the  High Court reached  the  said\t conclusions
\nrested\ton  the observations in Dhingra’s  case(1),  wherein
\nthis Court laid down the criterion to judge whether an order
\nis a
\n(1)  A.I.R.  1959 orissa 167 P.C.\t   (2)\tA.I.R.\t1943
\nF.C. 18.\n<\/p>\n
(3)  [1958] S.C.R. 828.\n<\/p>\n
397<\/span><\/p>\n
punishment  or not by observing that it would be  punishment
\nif the: order entailed or provided for forfeiture of pay  or
\nallowances  or loss of seniority in his substantive rank  or
\nstoppage or postponement of his future chances of promotion.
\nThe passage relied on the High Court laid down\tdeterminents
\nfor  treating an order as. one of punishment and not a\ttest
\nfor  reduction\tin rank.  As already  stated,  in  Dhingra’s
\ncase(1)\t the impugned order was held to be one of  reduction
\nin  rank because the appellant there was reduced from  Class
\n11  to\tClass III service, i.e., from a higher\tto  a  lower
\npost, the time-scales of the two posts being different.\t The
\nreduction  of rank was held not to be a\t punishment  because
\nthe appellant was not entitled to the better post wherein he
\nwas merely officiating and therefore did not visit him\twith
\nany  evil consequences.\t The observations relied on  by\t the
\nHigh Court thus related to the question whether the impugned
\norder was one of punishment and not for deciding whether  it
\namounted  to  a reduction in rank and were,  therefore,\t not
\napposite.   The\t basis for the, second premise of  the\tHigh
\nCourt, therefore, was not correct and therefore cannot\thelp
\nthe respondent.\n<\/p>\n
The  aforesaid\tanalysis of the decisions leads\t us  to\t the
\nconclusion  that the expression “reduction in rank” in\tArt.
\n311  (2)  has  to  be  construed  according  to\t the   well-
\nestablished  meaning it has acquired, as in the case of\t the
\nother  two expressions, namely, dismissal’ and ‘removal’  in
\nthat  article,\tunder  the various service  rules,  and\t the
\nprovisions  in that regard in the Constitution Acts of\t1915
\nand  1935.   The  expression  “reduction  in  rank”  in\t the
\narticle, therefore, means reduction from a higher to a lower
\nrank or post when imposed as a penalty.\t Therefore, an order
\nforfeiting  the past service which has earned  a  government
\nservant\t increments  in the post or rank he  holds,  however
\nadverse\t it  is to him, affecting his seniority\t within\t the
\nrank to which he belongs or his future chances of  promotion
\ndoes  not  attract the article.\t His remedy,  therefore,  is
\nconfined to the rules of service governing his post.  In our
\nview, neither Parshotam Lal Dhingra’s case(1) nor  Rupnarain
\nSingh’s\t case(2) assisted the respondent, as the first\tdoes
\nnot  lay  down\twhat he contended and  the  second  was\t not
\ncorrectly decided.\n<\/p>\n
The  result is that the State’s appeal succeeds and must  be
\nallowed.   Consequently,  the respondent’s suit\t has  to  be
\ndismissed.  In the circumstances of the case, however, there
\nwill be no order as to costs.\n<\/p>\n
Y.P.\t\t\t\t\t\t      Appeal\nallowed.\n(1) [1958]  S.C.R. 828\t   (2) [1958]  S.C.R. 828\n(3)  A.I.R. 1959 Orissa 167 P.C.\n398<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Punjab vs Kishan Dass on 19 January, 1971 Equivalent citations: 1971 AIR 766, 1971 SCR (3) 389 Author: Shelat Bench: Shelat, J.M. PETITIONER: STATE OF PUNJAB Vs. RESPONDENT: KISHAN DASS DATE OF JUDGMENT19\/01\/1971 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. VAIDYIALINGAM, C.A. CITATION: 1971 AIR 766 1971 SCR (3) 389 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-100045","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Punjab vs Kishan Dass on 19 January, 1971 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-punjab-vs-kishan-dass-on-19-january-1971-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Punjab vs Kishan Dass on 19 January, 1971 - 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