The State of Punjab vs Inder Sain Sharma

Mehar Singh, C.J.—In this appeal under clause 10 of the Letters Patent by the State of Punjab from the order, dated February 16, 19''-b, of a learned Single Judge, the facts are not really in dispute.

The respondent, Indar Sain Sharma, having been recruited as a Prosecuting Sub Inspector in the former Patiala State was promoted as an officiating Prosecuting Inspector on December 31, 1947, in that State. On August 20, 1948, was formed the Patiala and East Punjab States Union (Pepsu for brief) and the former Patiala State was one of the Covenanting States. On August 7, 1949, a provisional seniority and integration list of the Police Department in Pepsu was published in the Official Gazette. In the beginning of the notification it was stated The ad hoc committee appointed for the integration of non-gazetted officers of the Police Department has approved the following police officers as non gazetted officers of the Patiala and East Punjab States Union. This list should be considered to be in accordance with the seniority but will be provisional. Any Government servant aggrieved with this list should appeal to the Chief Secretary to Government. The final list of seniority shall be published later on decision of appeals by the Chief Secretary." In the list those shown up to serial No. 21 were described as Inspectors of Police and those from Nos. 22 to 31 as officiating Inspectors the respondent''s name appeared at serial No. 2a and thus he was shown in that list as an officiating Inspector. Subsequently on a reference by the Education and Health Department to the Home Department of the Pepsu Government with regard to the position of temporary and officiating Government servants, on January 15, 1951, the Home Department of the Pepsu Government conveyed this decision of the Government on the subject "Kindly refer to your endorsement No. H/310/07/77, dated 3rd January 1951, regarding position of temporary and officiating Government servants of the Covenanting States who were working against permanent posts and have been integrated in Union Service. I am directed to inform you that integration means absorption in permanent service of the Union and as such no specific orders for their confirmation are required." If at. the end of this communication these words-"as such no specific orders for their confirmation are required"-were not there, an argument might have been open that this communication did not amount to an order of the Pepsu Government confirming the temporary and officiating Government servants integrated in the service of Pepsu Government, but those words leave no manner of doubt that on integration in the service of the Pepsu Government temporary and officiating Government servants of the Covenanting Stales became confirmed and no specific and separate orders were required in the Departments concerned for confirmation of such Government servants. This order of the Pepsu Government was not confined to the Education and Health Department only but was sent to all the Departments in the Secretariat. It, therefore, also applied to the Police Department of the Pepsu Government. It has not been denied that the respondent was officiating against a permanent vacancy in the former Patiala State and continued to do so in Pepsu also.

The Pepsu Government by a resolution, Exhibit D.W./21 A. 1, of December 21, 1950, formulated a new formula for integration which was to apply to all cases of integration of the services in Pepsu. On the basis of that formula a provisional seniority list in the Police Department was prepared as appears from Exhibit D.W. 2/B of March 13. 1953, and in that the respondent was shown as confirmed Sub Inspector at serial No. 65. This was finalised under Government latter, Exhibit DW1/C, of 2nd January, I934 There was another list published in Gazette II of 11th February, 1953, in regard to the integration an J seniority of eleven Inspectors of police and the name of the respondent did not appear in that list. He made a representation in regard to the omission of his name from that list, which representation was not accepted.

On 29th April, 1954, the respondent was reverted to his substantive position as prosecuting Sub Inspector with effect from 1st May, 1954. He was then sent to Phillaur Police Training school to under go training in the course for Prosecuting Sub Inspectors. In an examination he was found copying. On that followed an enquiry and as a result of that the Inspector General of Police, Pepsu, on 2nd June, 1955, ordered forfeiture of his three years'' approved service towards increments on a permanent basis. The order further said that the respondent was to remain reverted to the rank of Prosecuting Sub-Inspector till such time as he established his claim to promotion by patting in good work.

It was after that, that the respondent filed a suit challenging the legality of the order of his reversion made on 29ih April, 19o4, as also the subsequent order of 2nd June, 1955, imposing the penalty on him as referred to above. The learned trial Judge on 17th April, 1961, came to the conclusion that the respondent was confirmed Prosecuting Inspector and that as no opportunity had been given to him to show cause against the penalty of reversion, so his reversion was contrary to law. He, therefore, decreed the suit of the respondent granting him the declaration claimed, leaving the parties to bear their own costs. On appeal, the learned Senior Subordinate Judge, on 2nd November, 1961 reversed the decree of the trial Court, dismissing the suit of the respondent obviously finding that be was an officiating Inspector and that therefore, the Government has the right to revert him to his substantive post of Prosecuting Sub-Inspector. In so far as the penalty imposed upon the respondent by the order of the Inspector-General of Police made on June 2, 1950, is concerned, the learned Senior Subordinate Judge remarked that there was no claim in the plaint that the penalty inflicted was illegal and the respondent was not bound by the order. Against the appellate decree of the Senior Subordinate Judge there was a second appeal in this Court which was accepted by a learned Single Judge on 16th February, 1965, reversing the decree of the first appellate Court and restoring that of the trial Court, and also granting relief to the respondent that the penalty imposed on him by the Inspector-General of police under his order of 2nd June, 1955 was no; according to law. The respondent was allowed costs throughout It is against the decree in the second appeal that this appeal under clause 10 of the Letters Patent has been preferred by the Punjab State.

It is an admitted fact at this stage that the respondent was integrated in the former Pepsu State as officiating Prosecuting Inspector of Police. As much was stated by the appellant-State in its written statement aid this has been its case throughout But what is used on behalf of the appellant-State is that the respondent was integrated as Prosecuting Sub Inspector of Police substantively though he continued as officiating prosecuting Inspector. This, however, makes no difference, the fact remaining that on integration the respondent continued as an officiating Prosecuting Inspector. It has never been the case of the appellant State that he was not officiating against a permanent post. Now: on this the Pepsu Governments order of 15th January 1961, is operative and its effect was to absorb the respondent in permanent service of Pepsu and in the terms of that order that ''no specific orders for their confirmation are required'', it means that having been integrated as art officiating Prosecuting Inspector, by the operation of this order he be came permanent without the need of any separate confirmation order in the Police Department. This is the approach that has been made to the case by the learned Single Judge. What is urged on the side of the appellant State is that the order of 15th January 1951 has no application to the cape of the respondent But, apart from making a bare statement in this manner, the Learned Counsel for the appellant-State has not been able to show now that older is not attracted to the case of the respondent. So in this respect there is no room for interference with the conclusion reached by the learned Single judge. In view of the Pepsu Government''s order of 15th, January, 1951, the respondent having been integrated as an officiating Prosecuting Inspector, he became permanent and thus no further order of confirmation in regard to him was necessary. He having thus become permanent could not be reverted from that position without compliance with the provisions of Article 311 of the Constitution. It is not denied that there was no compliance with that Article. So the harried Single Judge has lightly held that the reversion of the respondent is unconstitutional and illegal and cannot be sustained.

It is true that in the plaint the respondent''s prayer was not in regard to the Inspector General''s order of June 2, 1955, imposing the penalty of forfeiture of three years'' approved service towards increments on a permanent basis, but that penalty was imposed u/s 7 of the Pepsu Police Act which did not contain the penalty of ''stoppage of increments as has been the case in the former State of Punjab where this penalty was added to section 7 of the Police Act, 1861, by virtue of the Police (Fast Punjab Amendment) Act 1948 (East Punjab Act 30 of 1948). Obviously the Inspector-General of Police in Pepsu could not impose this penalty on the respondent u/s 7 of the Pepsu Police Act, which penalty did not exist in that section. The imposition of such penalty was, therefore, contrary to section 7 of the Pepsu Police Act and thus not legal. The Learned Counsel for the appellant State has referred in this respect to Dayanidhi Rath v. B. S. Mohanty AIR 1955 Ori 32, to contend that where an authority can impose the penalty of removal from service, it can impose a lesser penalty But that may be a case where both the severer and the lesser penalties are provided by law as happened in Dayatidki Roth''s ease. In the case of section 7 of the Pepsu Police Act, the lesser penalty imposed on the respondent did not exist, and so the case cited above has no application to the facts of the present case. Although the respondent did not specifically seek relief in relation to this particular order of the Inspector General of Police, but once his order of reversion has been found unconstitutional and illegal, what, followed subsequently adverse to him must also go, and, in any case this is covered by his general prayer in the plaint.

The consequence is that this appeal by the Punjab State fails and is dismissed, but the parties are left to their own costs in this appeal.

Shamsher Bahadur, J.

I agree.