Ananda Charan Swain vs State of Orissa and Others

S.N. Shankar, C.J.—Challenge in this petition under Articles 226 and 227 of the Constitution it; to the order Annexure-3 reverting the Petitioner as he was not found to be suitable for the post, to which he had been promoted on officiating basis, due to 30% deficiency in his eye sight.

The Petitioner was appointed as a Machine Tool Operator, Grade II in Sub-Division No. 15 of Balimela Stores and Mechanical Division, Balimela Dam Project. In January 1964 he was promoted to the post of Grade I Chargeman on temporary basis. During the course of his employment he developed some eye trouble. On 28-5-1969 he was reverted to the post of Machine Tool Operator, Grade 11 due to 30% deficient eye sight. He thereupon raised a labour dispute. On 20-5-1970 his services were terminated. Against this termination he filed a writ in this Court (O.J.C. 144 of 1971). During the course of hearing of the writ it transpired that the dispute was in fact an industrial dispute. The Petitioner thereupon withdrew the writ and applied to the State Government to refer the dispute to the Industrial Tribunal for adjudication. On 6-3-1972 he was informed by the State Government, Labour Department that the Balimela Dam Project was not an "industry" and therefore no industrial dispute could be raised. The Petitioner again filed a writ petition (O.J.C. No. 228 of 1972) in this Court for quashing this order and for issuance of a writ of mandamus directing the State Government to refer the dispute for adjudication by the Tribunal. On 26-9-1972 the petition was accepted and the direction prayed for was issued. In compliance with this direction on 1-2-1973 the State Government referred the dispute of termination of the Petitioner''s services to the Tribunal. It was registered as I.D. Case No. 1 of 1973. The reference was confined only to the termination of the Petitioner''s services and not to his revision which had been made earlier. The Petitioner therefore applied for a second reference in regard to his revision. On 13-2-1974 the State Government referred this dispute also to the Tribunal. On the first reference the Tribunal held that the order of termination of the Petitioner''s services was not justified and that he was entitled to reinstatement. The Petitioner was accordingly reinstated but to the post to which he had been reverted and which he held at the time of his dismissal. On the second reference the Tribunal by its Older dated 29-4-1975 found that the provisions of Section 2-A of the Industrial disputes Act covered cases of "dismissal", "discharge" and "termination" only, but did not include reversion and therefore the dispute as to reversion of the Petitioner could not be entertained by it. It however also held that on facts the reversion was legal and justified and that the Petitioner was not entitled to any relief. In the prayer clause the Petitioner has prayed for the quashing of this award also, but at the time of hearing it was conceded that the Tribunal could not have entertained this dispute and hence this prayer in the relief clause was not pressed.

In support of the claim that the reversion of the Petitioner was illegal, the following contentions were raised which are being repeated hereunder in the words used by the learned Counsel in his written arguments:

(1) That the Petitioner was a State Government employee and held a civil post and therefore could not be reverted without complying with the provisions of Article 311 of the Constitution";

(2) That the order of revision on the ground that the Petitioner was not found suitable due to 30% deficient eye sight was by way of punishment casting a stigma on the Petitioner and attracting the provisions of Article 311 of the Constitution;

(3) That the revision was contrary to the material on record and arbitrary, without jurisdiction and without notice;

(4) That the loss of earning capacity suffered by the Petitioner was partial and the temporary disability suffered by him had nothing to do with his physical fitness and efficiency to perform the job of the post which he held before reversion.

The first two contentions can be dealt with together.

On behalf of the opposite parties it was half-heartedly contended that the post held by the Petitioner in the Balimela Dam Project was not a civil post under the State Government and Article 311 was not attracted. It was, however, admitted that this project was a joint venture of the Government of Orissa and the Government of Andhra Pradesh and that all policy decisions in regard to the said project were taken by a joint control board consisting of Ministers and concerned Secretaries of both the Governments, It was further admitted that the project is under the administrative control of the Irrigation and Power Department of the Government of Orissa and is under the direct control of the Additional Chief Engineer (Irrigation), Balimela Dam Project. With these admissions it cannot for a moment be doubted that the post held by the Petitioner is a civil post within the meaning of Article 311 of the Constitution. In State of Assam v. Kanak Chandra 1967 S.C.D. 521, the question as to what shall be a civil post within the meaning of this Article came up for consideration and it was held that "Mauzadar" in Assam Valley was the holder of a civil post under the State and was entitled to the protection of Article 311 (2). Dealing with the aspect of civil post Mr. Justice Bachawat speaking for the Court said,

... In Article 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State, see the marginal notes to Articles 309, 310, and 311. The heading and the subheading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person said to be holding a pest under it. The existence of this relationship is indicated by the State''s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.

It was not seriously disputed that the Petitioner worked under the supervision and control of the officers of the State who had the right to control the manner and method of his doing the work as also the payment of wages or remuneration to him. The State through its officers had also the right to appoint persons considered by it to be suitable for the posts in the project. In the case of the Petitioner we find that Annexure-I is the order dated 11-12-1964 promoting him from his post of Grade II Machine Tool Operator to the post of Grade I Chargeman. This order is signed by the Superintending Engineer (Mech), Balimela Dam Project. Likewise Annexure-3. the impugned order of reversion, is signed by the Sub-Divisional Officer, Workshop Dam Project. Annexure-5, the order of termination of his services was also issued by the Executive Engineer, Stores and Mechanical Division, P.O. Chitrakonda, District Koraput. They are all Government officials working as such in discharge of their official duties. No effort was made to controvert this position. We accordingly hold that the Petitioner held a civil post within the meaning of Article 311 of the Constitution.

The next question is whether the Petitioner was entitled to the protection of Clause (2) of Article 311. To decide this is necessary to state certain facts which are admitted between the parties. During the course of his employment the Petitioner suffered multiple small opacities of the cornea of both eyes due to recurrent incident of foreign bodies in the eyes resulting in loss of vision of about 35% of both eyes. This was found by the Specialist in Opthalmology, Headquarters Hospital, Koraput where the Petitioner got himself examined. A copy of the certificate issued by the doctor has been filed by the Petitioner as Annexure-2. Due to this injury he made a complaint to the Assistant Labour Commissioner that the injury was directly attributable to the work at the grinding machine where he was engaged and that he was entitled to compensation for it. His claim was accepted and sum of Rs. 3430/- was assessed as the compensation payable to him. The Petitioner duly received this compensation for about 35% loss of his vision of both the eyes. These uncontroverted facts are stated in para 3 of the counter affidavit dated 30-6-1976 sworn by the Assistant Engineer (Mechanical).

It was because of this partial impairment in vision that the Petitioner was reverted as Machine Tool Operator, Grade II. The order of reversion dated 27-5-1969 (Annexure-3) read as under:

Sri A.C. Swain, Chargeman, working in Workshop Sub-Division is hereby reverted as Machine Tool Operator Grade II as he is found not suitable due to the 30% deficient eye sight.

It is an admitted case that the promotion of the Petitioner to the post of Grade 11 Chargeman was on a temporary or officiating basis. His reversion to his original post, as would be seen from the order (Annexure-31 extracted above, was dues to a physical incapacity that he suffered. By this reversion no stigma was cast on him nor was he punished. In our view therefore Article 311(2) was not attracted.

Reference in this connection may be made to State of West Bengal v. Somendra Nath 1976 (2) S.L.R. 302, where on page 306 of the Report after noticing the position the Court said,

It is clear, therefore, that unless there is an aspersion against character or integrity an order of discharge cannot be considered to be an order by way of punishment. In fact, the word ''stigma'' means imputation attaching to a person''s reputation; stain on one''s good name (vide Concise Oxford Dictionary, 5th Edition, page 1262). ''Character'' in the context of circumstances we are concerned with means moral strength, backbone, reputation, good reputation (vide Concise Oxford Dictionary, 5th Edition, page 200).

In Mohd. Sagiruddin v. Dist. M.E., N.E.F. Rly. AIR 1973 S.C. 1366, a railway servant holding a post carrying higher pay scale was found medically unit for such post and was absorbed in another employment carrying a lower pay scale for which he was declared fit according to the relevant rules. The Court held that in these circumstances it could not be said that he was punished or any stigma was passed on his character inasmuch as the action taken was not a disciplinary measure and so provisions of Article 311 were not attracted. In Hari Singh Mann Vs. State of Punjab and Others, , the services of the Appellant, a Probationer, Deputy Superintendent of Police, on the expiry of his extended period of probation were dispensed with on the ground of the President "having considered him unfit for appointment to the State Police Service". The Supreme Court held that this did not involve any stigma to attract Article 311 of the Constitution. On page 2264 of the Report in paragraph 12 the Court said,

The order terminating the services is unfitness for appointment at the time of confirmation, it is not passed on the ground of any turpitude like misconduct or inefficiency . To bold that the words ''unfit to be appointed'' are a stigma would rob the authorities of the power to Judge fitness for work or suitability to the post at the time of confirmation. Termination of services on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment.

The latest authoriry of the Supreme Court in State of Mysore and Others Vs. M.K. Gadgoli and Others, , settles the matter finally. The Respondent in this case was reverted to his substantive post from his officiating post as "Aval Karkun" for the reason mentioned 10 the order dated 2-9-1956. The relevant part of the order read as under:

Your work was recently reviewed and your confidential sheet was examined. It was found that your work as an Aval Karkun is unsatisfactory.

Sd/- For the Collector, Dharwar.

The reversion was challenged on the ground that it was in violation of Clause (2) of Article 311 of the Constitution. The Court following the decision in Parshotam Lal Dhingra Vs. Union of India (UOI), , observed that while a person occupying an officiating post might come within the scope of Article 311 if disciplinary action and punishment were imposed on him entailing penal consequences, there were categories of reversions of officiating promotees where Article 311(2) was not attracted. Referring to the decision of the Court in The State of Bombay Vs. F.A. Abraham, , it was held,

This Court has taken the view that a person officiating in a post has no right to hold it for an times. Indeed, such a person is given a higher officiating post to test his suitability to be made permanent later and holds it on the implied term that he would have to be reverted if he was found unsuitable. The reversion in such a case on the ground of unsuitability is an action in accordance with the term''s on which the officiating post was being held and is not a reduction in rank by way of punishment.

The promotion of the Petitioner thus being on an officiating basis his reversion to the post originally held by him on the ground that he was found unsuitable to hold that post is not a reduction in rank and he was not entitled to the protection of Clause (2) of Article 311 of the Constitution.

Heavy reliance was placed on behalf of the Petitioner on Union of India (UOI) Vs. Someswar Banerjee, , where it was held that dismissal on the ground of inefficiency due to physical incapacity was covered by the provisions of Section 240(3) of the Government of India Act. This finding was in a wholly different context. The Respondent in that case was a permanent Bridge

Inspector under Bengal and Assam Rail way. He had sustained a serious injury on his back and his services were terminated under Rules 1708 and 1709 in Volume I of the State Railway Establishment Code. The rule which was relied upon in particular read as under:

Where inefficiency is due to failure to conform to the requisite standard of physical fitness, it shall not be necessary to serve the Railway servant with a charge sheet, or to obtain his explanation.

The main question canvassed before the Court was that this rule was ultra vires of Sub-section (3) of Section 240 of the Government of India Act which in mandatory terms laid down that no such person as was referred to in the section shall be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The Court held that the rule was ultra vires of Sub-section (3) of Section 240 of the Government of India Act and in this situation set aside the dismissal of the employee.

Reference was also made to State of U.P. and Others Vs. Sughar Singh, , and Uchab Chandra Das Vs. Khirod Ch. Das and Others, . In the former case the Petitioner alone was reverted from his officiating post to his substantive post allowing others who were junior to him to retain their officiating posts and the basis for the reversion of the Petitioner, it was admitted, as an adverse entry in his character roll. The order of reversion in these circumstances, the Court held, was by way of punishment and amounted to reduction in rank as also violative of Articles 14 and 16 of the Constitution. The latter was not a case of temporary or officiating appointment or promotion. Rather reference to paragraph 4 of the Report indicates that the decision proceeded on the basis of the Petitioner being a permanent employee. Both these authorities therefore are of no assistance to the Petitioner.

The plea in the third contention of the Petitioner that the reversion was contrary to the material on record or that it was arbitrary or without jurisdiction is wholly devoid of merit. Without repeating the facts that have already been et out above suffice to say that the very fact of the Petitioner having lodged a claim for compensation on the basis of the certificate (Annexure-2) on the plea that he had lost his vision by about 35% and this having been found to be a fact and the Petitioner having obtained compensation for this injury was by itself enough material on the record before the competent authority to take the decision whether the Petitioner with his impaired eye sight could work in the post of Grade I Chargeman. We are unable in these circumstances to accept the submission that the decision was either arbitrary or without material on record. Not a word was said during arguments to show that it was without any jurisdiction except on the ground of non-compliance with Article 311. It was not pleaded nor urged before us that the authority passing the order of reversion was not competent to do so.

As for the last plea in the third contention that the order was passed without notice we find that the Petitioner nowhere took the alternative plea in the petition that even if Article 311 did not apply he was entitled to a notice before the order of reversion was passed against him. This being a question of fact cannot be allowed to be raised at the time of arguments. But even otherwise we find that this plea has no merit. The fact that the Petitioner had suffered loss of vision and was deficient in the eye sight was fully known to him throughout. In para 4 of the counter it is stated that as the Executive Engineer. Balimela Stores Mechanical Division thought it fit to revert the Petitioner to his former post of Mechanical Tool Operator, Grade II, he issued a notice u/s 9(a) of the Industrial Disputes Act to him on the assumption that this was a partial change in his conditions of service calling for a prior notice. This notice, it is stated, was served on the Petitioner 21 days in advance and the Petitioner thereafter joined the post of Mechanical Tool Operator, Grade II to which he had been reverted on 16.6.1969. This was sufficient notice to the Petitioner if a notice at all was needed.

The fourth contention as put and set out above to our mind is the result of a confusion. What the Petitioner by this plea seeks to urge is that in spite of the impairment of his vision which was partial and temporary in nature he was physically fit and efficient to discharge the duties of the post to which he had been promoted and the order of reversion for this reason was bad. To show that the disability had nothing to do with the physical fitness for the job reliance was also placed on Sukhai Vs. Hukum Chand Jute Mills Ltd., , and Bengal Chamber of Commerce v. Md. Hossain AIR 1969 Cal. 373. Both these cases were under the Workmen''s compensation Act and it was in the context of assessment of Compensation that the question of earning capacity and the partial or temporary disability was considered. These considerations have no relevancy for the determination of the present controversy, the Petitioner never acquired a right to hold the post to which he had been promoted. His reversion was also not by way of punishment. No right of his was therefore infringed to entitle him to invoke Article 226 or to claim to be retained in the promoted post. Besides it was entirely for the appropriate authority to decide if after impairment of his eye sight he was fit to work in the promoted Post or not. We have no reasons to think that the decision to revert him because of deficient eye sight was not justly taken. This is because the Petitioner has not made even an oblique suggestion that he was reverted mala fide or for any ulterior motive of whatever nature. The fourth contention thus also fails.

For reasons aforesaid we see no substance in this petition. The same is dismissed, but with no order as to costs.

S. Acharya, J.

I agree.

Petition dismissed.