Judgment

SINHA, C.J.I. : The main question for decision in this appeal, on a certificate of fitness granted by the High Court of Judicature at Bombay, is whether a public servant, who has been officiating in a higher post but has been reverted to his substantive rank as a result of an adverse finding against him in a departmental enquiry for misconduct, can be said to have been reduced in rink within the meaning of S. 240(3) of the Government of India Act, 1935. The learned Civil Judge, Senior Division, by his Judgment and Decree dated October 31, 1955, held that it was so. The High Court of Bombay on a first appeal from that decision by its Judgment and Decree dated July 26, 1956, has held to the contrary.

2. In so far as it is necessary for the determination of this appeal, the facts of this case may shortly be stated as follows. The appellant was holding the rank of a Mamlatdar in the First Grade and was officiating as a District Deputy Collector. In the latter capacity he was functioning as a District Supplies Officer. He had to undertake tours in the discharge of his official duties for which he maintained a motor car. In respect of one of his travelling allowance bills. it was found that he had charged travelling allowance in respect of 59 miles whereas the correct distance was only 51 miles. A departmental enquiry was held against him as a result of which he was reverted to his original rank as Mamlatdar, by virtue of the order of the Government dated August 11, 1948, (Ex. 35) which was to the following effect:

"After careful consideration Government have decided to revert you to Mamlatdar for a period of three years and have further directed that you should refund the excess mileage drawn by you in respect of the three journeys."

The appellant made a number of representations to the Government challenging the correctness of the findings against him and praying for re-consideration of the Order of Reversion passed against him but to no effect, in spite of the fact that ultimately the Accountant General gave his opinion that the appellant had not overcharged and that there was no fraud involved in the travelling allowance bill which was the subject matter of the charge against him. But ultimately, by a Notification dated March 26, 1951 (Ex. 61), the appellant was promoted to the Selection Grade with effect from August 1, 1950, but even so the Order of Reversion passed against the appellant remained effective and appears to have affected his place in the Selection Grade. Eventually, the appellant retired from service on superannuation with effect from November 28, 1953. He filed his suit against the State of Bombay on August 2, 1954, for a declaration that the Order of the Government dated August 11 1948, was void, inoperative, wrongful, illegal and ultra vires, and for recovery of Rs. 12,866 odd on account of his arrears of salary, allowances, etc., with interest and future interest. The learned Civil Judge. Senior Division, at Belgaum came to the conclusion that the first part of the departmental enquiry held against the plaintiff leading up to the findings against him was free from any defect but that he had not been given the opportunity of showing cause against the punishment proposed to he inflicted upon him as a result of these findings, in so far as no show-cause notice was given to him nor a copy of the enquiry report showing the grounds on which the findings had been based. There was thus, according to the finding of the Trial Court, no full compliance with the requirements of S. 240(3) of the Government of India Act, 1935. The Court also held that the Order of Reversion amounted to a penalty imposed upon the plaintiff as a result of the enquiry. The Court, therefore, came to the conclusion that the Order aforesaid passed by the Government reverting him to the substantive rank was void and. granted him that declaration, but dismissed his suit, with costs, in respect of the arrears claimed by him as aforesaid on the