LexREGIONAL MANAGER & ANR. versus PAWAN KUMAR DUBEY
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A B c D E F G H 54 0 REGIONAL MANAGER & ANR. v. PAWAN KUMAR DUBEY March 8, 1976 [A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J c..:onstituri0n of India, 1950, Art. 16 and 311(2), when applicable. Civil ~cri,ant-Reversion of-Order apparently innocuous when realty p1111i- ti: c attracting Art. 16 and 311(2). The respondent was reverted fro1n the higher post in which he was officiating, to his substantive post, by an order which stated that he was 'not fit yet' tor tfc higher post. His juniors continued to officiate in the higher post. Till some time before the order of reversion, the respondent ¢.'as praised by his superior officers, but, during a period of about six months before the reversion, there was a spurt of warnings, complaints, and adverse remarks, alleging dis- respect, disobedience to orders, and that he cast aspersions on h\s superior -I officer. The respondent asked for particulars to meet the allegation"I, but they \ v•cre not given to him. His representation against the last adverse entry \Vas p-~nding when the reversion order was passed. He challenged the order and the High Court, following State of U.P. v. Sugliar Singh [1974] 2 S.C.R. 335, quashed the order, holding that the reversion ¥/as a punishment in the light of the circumstances preceding the order, from the terms of the order, and it5 e:ffect on the respondent's future--'"-and that there \\l·as a \'iolation of 1-ules of " natural justice. Jn appeal to this Court by special leave, the appellant contended that the I-[igh C'ourt misunderstood Sughar Sinr:ll's case. •• Dismissing the appeal, HELD : ( 1) As the reversion order v,ras punitive and passed contrary to the rules of natural justice embodied in Art. 311(2), it must be quashed. The authorities are, however, free to take action, either in accordance with applicable """" ruies for a comparative assessment of the merits of the respondent and others ( \vho n1ay be eligible, or to take disciplinary proceedings. [550A-B] (a) In Stighar Singh's case, th.is Court was only following the law on Art. 311 (2) as laid down repeatedly. In that case also the reversion of Sughar Singh was apparently not punitive, but, since it could not be explained except as a result of an adverse entry made two years earlier, it Wa5 held to be by v.'ay of punishment. On this view it was not necessary to con5ider \Vhether there was a violation of Art. 16, but this Court held that th~rc was. What \.\.'eighed with this Court was not only that there was a sufficient element of punishment in reverting him so that Art. 311 (2) had to be complied \vith, but that there was also enough of imprOpriety and unreasonableness in the action taken solely for a very stale reason which had beco1ne logically disconnected aEd extraneous, to make out a case of 'malice in law' if J1ot 'n1alice in fact'~ [545H-546F] (h) Whether an apparently innocuous order is punitive or aniount• to un- justifiable discriminatory action, violating either Art. 311 or Art. 16 depends - on the facts of the case. [549E] (c) This Court has. in Sltan1sher Singh v. State of Punjab [19751 1 S.C.R. 814 laid down authoritatively the conditions necessary in such cases for the- <ippiicability of Art. 311 (2) after considering all the previous cases and there is no scope for any misapprehensim1 of the law. [544C1 (d) As regards Art. 16, before it is held to have been viola~cd,, there must he discrimination between one Government servant and another, sun1larly placed. \Vhich cannot be reasonably explained· except on the basis of 'malice in law~ or 'malice in fact'. But, the person wlicr alleges such rrialice in law must REGIONAL MANAGER V. P. K. DUBEY (Beg, J.) 54 ! 5<~tisfactl?rily _establish it on proved or admitted facts as in State of My.\orc v. R.ulkarn1 (A.IR 1972 SC 2170). When the alle 0ations are of '1nalice in facf 'vhich are disputed and require a detailed adducti~n of evidence or exarni•ation of wit~esses, the ~our.t \Vi~l leaye the party aggrieved to an ordinary civil ~uit J and \Vill not exercise its d1scret1onary power under Art. 226. Reversion of an ?fficer as a _result of. administrative exigencies, without any suggestion of malice t. in la"". or 1n fact, is unaffected by Sughar Singh's case, and is not vitiated even if some Government servants, junior to hin1 have not been reverted. ·"' I • [547B-D, F-G] ' ( e) The facts of the present case are similar to those
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