Conduct & Disciplinary Rules - 69 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

 Conduct & Disciplinary Rules - 69 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

Conduct & Disciplinary Rules – 69

CCS Rules & Principles of Natural justice 

7. Reduction in Rank - Reduction in rank means the degradation in rank or status of the officer directed by way of penalty. As regards the penal nature of the reduction the Supreme Court in Union of India v. Purshottam AIR 1956 Punj. 207, affirmed by Purshottam v. Union of India, AIR 1958 SC 3 applied the test of right to the rank in question in the same manner as the right to the post test in the case of dismissal or removal. Reduction in rank for administrative reasons does not attract Art. 311 (2)

A reduction in rank for administrative reasons will not amount to punishment and in this case the principle of reasonable opportunity to defend is not applicable. The order of reversion simpliciter will not amount to reduction in rank or a punishment.

A servant who is officiating on a higher rank in a leave vacancy and is reverted on the return of the permanent incumbent, cannot say that he has been reduced in rank within the meaning of Art. 311.

[Sangamlal Dubey v. Director of Education, AIR 1957 All 70]

8. When termination of service or reduction in rank amounts to punishment

As the provision of reasonable opportunity to defend can be invoked only when the removal, dismissal or reduction in rank is by way of penalty, the task before the court is to determine as to when an order for termination of service or reduction in rank is made as and by way of punishment.

The Supreme Court has laid down two tests for determining whether the dismissal etc., is by way of punishment :

(i)      Whether the servant had a right to the post or rank, or,

(ii)     Whether he had been visited with evil consequences.

[P.L. Dhingra v. Union of India, AIR 1958 SC 36; State of Punjab V. Balbir Singh, AIR 1977 SC 629]

ii. One test for determining if the termination of a servant is by way of punishment is to ascertain whether he had a right to the post because every termination brought about otherwise than according to his terms of contract of employment or any rule governing the service will per se be as and by way of punishment.

Such a termination will operate as a forfeiture of his right to the post and evil consequences of loss of pay and allowances. Similarly, if the Government servant has a right to a particular rank, then the very reduction from the rank will operate as a penalty for he will then lose the emoluments and privileges of that rank.

iii. With regard to the termination of a service of a permanent employee of the Government the case of P. L Dhingra has been modified by the majority judgement in Moti Ram Deka v. N.E. Frontier Railway.

Gajendragadkar (J): A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal. In other words termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must per se amount to his removal and so if by r. 148 (3) or r. 149 (3) such a termination is brought about, the rule clearly contravenes Art. 311 (2) and must be held to be invalid.

[Moti Ram Deka v. N.E. Frontier Railway, AIR 1969 SC 600]

iv. These principles have been reiterated in Central Inland Water Transport Corporation v. Brajanath Ganguly, (1986) 3 SCC 156; West Bengal State Electricity Board v. Desh Bandhu Ghosh (1985) 3 SCC 166; Uptron India Ltd. v. Shammi Bhan JT 1998 (3) SC 47