STATE OF BIHAR & ORS. versus SHIVA BHIKSHUK MISHRA

Citation: [1971] 2 S.C.R. 191 · Decided: 14-09-1970 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Cited by 10 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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STATE OF BIHAR & ORS. 
v. 
SHIVA BHIKSHUK MISHRA 
September 14, 1970 
(J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] 
191 
Constitution of India, 1950, Art. 311-Reversion und •dismissal of 
civil servant--Order of reversion not containing express words 
casting 
stigma-Entirety of circumstances must be seen to detertnine whether 
order was one by way of punishment though not expressly so-Dismissal 
by officer subordinate to appointing authority invalid. 
The respondent was holding the substantive post of Sergeant in the 
Bihar Police Force till July 31, 1946. 
On August I, 1946 he was pro-
moted to officiate in the higher post of Subedar. In January 1948, while 
still holding the substantivo post of Sergeant he was promoted to offi-
ciate temporarilY. as Subedar Major. 
In October 1950 the Commandant 
of the Bihar Military Police. Muzaffarpur wrote to the Deputy Inspector 
General of Police Armed Forces suggesting that the respondent should 
be censured for having assaulted an orderly. 
The 
Deputy 
Inspector 
General recommended to the Inspector General that in view of the afore-
said incident the respondent be reverted to his substantive post of Ser-
geant pending the result of the departmental enquiry for 
misconduct 
which was already going on against him. 
In November 1950 the Ins-· 
pector General reverted the respondent to the post of Sergeant. 
After 
the conclusion of the department'. enquiry the respondent was dismissed 
from service in April 1953 by an order of the Deputy Inspector General. 
-In February 1954 thcr respondent filed a suit for declaration that his 
demotion to the post of Sergeant and subsequent dismissal from service 
were wrongful, illegal . and inoperative. 
The trial .court dismissed the 
suit. The High Court on appeal reversed the decision of the trial court 
on the finding that the 'reversion was not in ·the usual course or for admi-
nistrative reasons but it was after the finding on an inquiry about some 
complaint against the plaintiff and by way of punishment to him." The 
order of dismissal was set aside on the ground that it had been made by 
the Deputy Inspector General 
while the appointing authority 
in the 
case of the post ·of Subcdar-Major was the Inspector General so that 
there was a violation of Art. 311 (I). In appeal to this Court against 
the judgment of the Hi~h Court the question that fell for consideration was 
was v.·hether the reversion of the respondent from the post of officiating 
Subedar-Major was made in circumstances which would attract the appli-
cability of .Art. 311 (2) of the Constitution. 
HELD : Dlwba's case is not an authority for the proposition that so 
long as there are no express words cif stigma attributed to the conduct 
of a Government officer in the impugned order it cannot be held to have 
been made by way of punishment. The form of the order is not con-
clusive of its true nature and it mi~ht merely he a cloak and camou-
flage for an order founded on misronduct. It may be that an order which 
is innocuous on the face and does not contain any imputation of miscon- · 
duct is a circumstance or a piece of evidence for finding whether it was 
made by way of punishment or administrative routine. 
But the entirety 
of circumstances preceding or attendant on the impugned order must 
SUPREME COURT REPORTS 
[1971] 2 S.C.R. 
be e.,amined and the overriding test will aways be whether the miscon· A 
duct is a mere motive or is the very foundation of the order. 1196 C-E] 
In the present case the High Court found that the o~der of reversi.on 
was made owing to the ·note of the Deputy Inspector General of Police 
folloWing the rCport of the Commandant. The order of reversion was 
directly and proximately founded on what the 
Commandant and 
the 
Deputy Jnspcctor General of Police said relating to the respondent's B 
conduct generally and ir. particular with reference to the . incident .of 
assault hy him on ttie orderly. 
There ,:vas no rea.son to d1sagr~c ~1th 
the, High ('nurt that the order of reversion was void. ·In that s1tuat1on 
it was not disputed that the order of dismissal which was passed by the 
Deputy Inspector General of Police violated Art. 311(1) of the Consti-
tution and had hccn rightly set aside hy the High Court. 1196 F-GJ 
State of Punjab & Anr, v. Shri SuRI' Raj Bahadur, [t968] 3 S.C.R. C 
134 and S. R. Tiimri v. District Board A11m & Anr. 11964] J S.C.R. 55,. 
applied. 
Union nf India v. R. S. Dhaha, l.T.0. H

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