Full Judgment Text
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PETITIONER:
H. L. MEHRA
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT23/04/1974
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
GOSWAMI, P.K.
CITATION:
1974 AIR 1281 1975 SCR (1) 138
1974 SCC (3) 396
CITATOR INFO :
RF 1977 SC1884 (26)
ACT:
Central Civil Services (Classification, Control and Appeal)
Rules 1965--Sub rule 5(b) of Rule 10--Whether valid.
HEADNOTE:
The appellant was in the service of the Government of India
in the P.& T. department and he was posted as an officer on
special duty in Goa after its liberation on 20th December,
1961. The appellant was working in that capacity from 25th
December, 1961 to 11th August, 1962 when he was transferred
to Allahabad.
While he was in Allahabad. he was suspended from service by
an order dated 11th April, 1963 made by the President under
sub-r. (1) of r. 12 of the Central Civil Services
(Classification, Control and Appeal) Rules 1957 on the
ground that a case against the appellant in respect of
criminal offence was under investigation. On the completion
of the investigation by the Special Police Establishment the
Government of India sanctioned the Prosecution of the
appellant and accordingly, the appellant was prosecuted in
the Court of Special Judge, Greater Bombay along with
another. The principal charge was that while the appellant
was on special duty in Goa, he had sent 4 consignments
specifically described in the charge, in trucks and railway
wagons. and concealed in postal bags from Goa to Bombay and
thereby committed an offence punishable under S. 5(2) read
with s. (1) (d) of the Prevention of Corruption Act 1947.
Whilst the criminal case was pending the Government of India
issued a Memorandum dated 8th March. 1965 to the appellant
intimating that the President proposed to hold an enquiry
against the appellant under r. 15 of the Rules. The
allegations were set out in the statement of allegations
enclosed with the memorandum and the charges framed on the
basis of the allegations were enumerated in the statement of
charges. These charges were based on wholly different
allegations and had nothing to do with the charges on which
the appellant was being prosecuted in the criminal case.
The learned Special Judge held the appellant guilty on the
second charge so far as it related to the first, second and
fourth consignments referred to in that charge and convicted
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him. On appeal the High Court confirmed the conviction of
the appellant and maintained the sentence; but a certificate
to appeal to the Supreme Court was granted by the High
Court. During the pendency of the appeal, the President,
passed an order dated 26th October, 1967, dismissing the
appellant from service with immediate effect under R. 19(1)
of the Rules, 1965.
The appeal against the conviction was, thereafter, heard by
this Court and this Court allowed the appeal and set aside
the conviction on the ground that no custom duty was
leviable on dispatch of goods from Goa to other parts of
India and therefore, the appellant could not be held guilty
of evading payment of customs duty etc.
The President, thereafter, passed an order setting aside the
dismissal order; but since an enquiry was pending against
the appellant under the Rules, the President ordered
continuance of the enquiry and directed continuance of the
suspension until further orders.
The appellant, thereafter, filed a writ petition before the
Delhi High Court challenging the validity of the order.
While the writ petition was pending, the Government issued
another memorandum by which it directed enquiry only in
relation to charge 11 of the earlier memorandum; but added 3
more charges set out in the statement of charges enclosed
with the second memorandum. No progress, was, however, made
because of the writ petition before the High Court. The
Delhi High Court. dismissed the writ petition of the
appellant and hence the appeal to this Court.
139
The impugned order dated 9th June, 1971 consisted of 3
parts-the first part set aside the dismissal order, the
second part directed continuance of the enquiry and the
third part continued the suspension of the appellant under
sub-rule 5(b) of Rule 10 of the Rules. 1965.
The only question debated before this Court was whether the
third part of the impugned order was valid and whether
President was competent to continue the suspension of the
appellant under sub rule 5(b) of Rule 10 of the Rules. It
was agreed that the validity of the order of suspension was
to be judged by reference to 1965 Rules and the only
provision in the Rules of 1965 which deals with suspension
is Rule 10 and 5(b) of Rule 10 provided, inter alia, that :-
Where a Government servant is suspended etc. in connection
with any disciplinary proceedings etc. and any other
disciplinary proceedings is commenced against him during the
continuance of such suspension, the authority may direct
that the Government servant shall continue to be under
suspension until the termination of all or any of such
proceedings."
Partly allowing the appeal.
HELD : (i) Before action can be taken under sub-rule 5(b) of
Rule 10 of the Rules, 1965, two conditions must co-exist;
one is that the Government servant must be under continuing
suspension and the other is that during the continuance of
such suspension "any other disciplinary proceeding" should
be commenced against him. [146D]
(ii) When an order of suspension is made against a
Government servant, pending an enquiry, the relationship of
master and servant does not come to art end. The Government
issues a direction forbidding the Government servant from
doing the work which he was required to do under the terms
of the Contract of Service, at the same time keeping in
force the relationship of master and servant
V. P. Gindronlya v. State of Madhya Pradesh & ors. [1970]
3 S.C.R. 448 referred to;
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but when an order of dismissal is passed the Vinculum Juris
between the Government and the servant is dissolved; the
relationship of master and servant between them is
extinguished and the order of suspension, a fortiorari comes
to an end. It follows, therefore. that once the suspension
comes to an end by an order of dismissal, it cannot be
revived by mere subsequent setting aside of the order of
dismissal in the absence of a statutory provision or rule to
that effect. [147B-D]
Om Prakash Gupta v. The State of U.P. [1955] 2 S.C.R. 391,
referred to.
Under the circumstances, the third part of the impugned
order could not be justified under sub-rule 5(b) of Rule 10.
[149B-C]
(iii) The third part of the impugned order continuing the
suspension of the appellant cannot also be justified under
any of the sub rules of Rule 10. For example, sub rule 4 is
not attracted in the present case. This sub-rule requires 2
conditions (i) the order of dismissal must be set aside in
consequence of a decision of a court of law and (ii) the
disciplinary authority must decide to hold a fresh enquiry
on the allegations on which the order of dismissal was
originally passed. In the present case, the second
condition is not fulfilled because the enquiry revived and
continued under the second part of the impugned order was
not an enquiry on the allegations on which the penalty of
dismissal was originally imposed on the appellant.
Similarly sub Rule 5(a) is also not attracted because this
sub-rule only operates within the framework of the
relationship of master and servant. Once that relationship
comes to an end, sub-rule 5(a) cannot be sustained. [149F-
15OF; 151C-D]
(iv) Therefore, in the present circumstances, the third part
of the impugned order continuing the suspension of the
appellant must be held to be void and inoperative: but this
does not mean that the President cannot pass a fresh order
of suspension under sub-rule (1) of Rule 10. if he so thinks
fit. But until such action is taken, the appellant would be
entitled to his salary under the conditions; of service
applicable to him. [152C-D]
140
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366 of
1972.
From the Judgment and Order dated the 25th February, 1972 of
the Delhi High Court in Civil Writ No. 1270 of 1971.
B. R. L. Iyengar, Bishamber Lal, P. V. Kapoor and S. C.
Patel for the appellant.
Govind Das and S. P. Nayar, for the respondent
The Judgment of the Court was delivered by
BHAGWATI J. This appeal is directed against the judgment of
the Delhi High Court dismissing a writ petition filed by the
appellant against the respondents challenging the validity
of an order dated 9th June, 1971 passed by the President
directing that a disciplinary inquiry pending against the
appellant shall be continued until its finalization and the
appellant shall continue under suspension under sub-rule
5(b) ,of rule 10 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965,
hereinafter referred to as CCS (CCA) Rules, 1965, until
further orders. The facts giving rise to the appeal may be
briefly stated as follows.
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The territory of Goa, which was under Portuguese domination,
was liberated by the Indian Army on 20th December, 1961.
The appellant was at that time in the service of the
Government of India in the Post and Telegraph Department and
was working as Senior Superintendent of Post Offices at
Jaipur. Since senior and experienced officers were required
for recognising the administration in the liberated
territory of Goa, the appellant was transferred and posted
as officer on Special Duty, Post and Telegraph Department,
Punjab, Goa. The appellant took charge of his new office on
25th December, 1961 and held that officer till 11th August,
1962 when he was transferred as Senior ’Superintendent,
R.M.S., ’A’ Division, Allahabad. Whilst the appellant was
functioning as Senior Superintendent, R.MS., ’A’ Division
Allahabad he was suspended from service by an order dated
11th April, 1963 made by the President in exercise of the
power conferred under sub-r. (1) of r. 12 of the Central
Civil Services (Classification, Control and Appeal) Rules,
1957, hereinafter referred to as the CCS (CCA) Rules, 1957
can the ground that a case against the appellant in respect
of criminal offence was under investigation. On the
completion of the investigation by the Special Police
Establishment, the Government of India sanctioned the
prosecution of the appellant and pursuant to the sanction so
granted, the appellant was prosecuted in the, court of
Special Judge, Greater Bombay along with one Raj Bahadur
Mathur on four charges. The first and the fourth charges
are not material as the appellant was acquitted of those
charges by the learned Special Judge and nothing now turns
upon them. The third charge is also not material as it was
directed only against Raj Bahadur Mathur and the appellant
had nothing to do with it. The principal, charge was the
second charge which alleged that the appellant had, while
functioning as Officer on Special Duty, Post and Telegraph
Department, Panjim,
141
Goa, by abuse of his. official position or by illegal and
corrupt means, obtained pecuniary advantage for himself
and/or for others, inasmuch as he had sent or caused to be
sent from Panjim to Bombay four consignments specially,
described in the charge, in trucks and/or railway wagons
hired by Post and Telegraph Department for transportation of
foreign parcels from Goa to Daman via Margo, Poona and
Bombay, without payment of freight charges, customs duty
etc.. and thereby, committed an offence punishable under s.
5 (2) read with s. 5 (1) (d) of the Prevention of Corruption
Act, 1947. of the four consignments referred in
this,charge, the first related to eight cases concealed in
five postal bags sent on or about 29th June, 1962, the
second related to twelve wooden boxes and a steel trunk
concealed in eight postal bags sent on or about 26th July,
1962, the third related to nine cases sent on or about 31st
July, 1962 concealed in postal bags and the fourth related
to some trunks and leather suitcases sent on or about 31st
March, 1962. Whilst the criminal case was pending in the
Court of Special Judge, Greater Bombay, the Government of
India issued a, memorandum dated 8th March, 1965 to the
appellant intimating that the President proposed to hold an
inquiry against the appellant under r. 15 of the CCS (CCA)
Rules, 1957. The allegations on which the inquiry was
proposed to be held were set out in the statement of
allegations enclosed with the memorandum and the charges
framed on the basis of these allegations were enumerated in
the statement of charges accompanying the memorandum. There
were four charges set out in the statement of charges. The
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first, the third and the fourth: charges are not material
and we need not refer to them in detail. It would be.
sufficient to state that they were based on wholly different
allegations and had nothing to do with the charges on which
the appellant was being prosecuted in the criminal case.
The second charge, however, stood on a different footing and
in order to appreciate one of the contentions that has been
raised before us, it would be desirable to set it out in
extenso :
"Shri H. L. Mehra, while functioning as
Officer on Special Duty, P. & T. Department,
Panjim, Goa between the 24th December, 1961
and the 31st August, 1962, failed to maintain
absolute integrity and devotion to duty as
required by Rule 3 of the CCS (Conduct) Rules,
1955 and committed misconduct in the discharge
of his duties as a public servant inasmuch as
he, by abusing his official position, managed
to send 9 cases packed with his luxury goods
from his residence at Panjim to Margoa Post
Office on or about the 31st July, 1962 in the
truck of Vasant Shiva Amoncar, hired by the P.
& T. Department, Panjim Goa for carrying mails
from Margoa to Panjim Post Office, without
paying any truck hire I charges and also
unauthorizable utilised the services of the,
postal carpenters on working days during the
office hours for packing the aforesaid cases
and thereby secured to himself’ wrongful gain
and pecuniary advantage."
The disciplinary inquiry into these charges proceeded rather
desultorily and not much progress was made. The reason
obviously was that them
142
criminal case was pending At the trial of the criminal case,
a large mass of evidence, was led on behalf of the
prosecution and the appellant also led evidence in support
of the defence. On the evidence, the learned Special Judge
came to the conclusion that the first and the fourth charges
were not established against the appellant and acquitted him
of those charges. The learned Special, Judge also acquitted
Raj Bahadur Mathur of the first and the third charges framed
against him. However, so far as the second charge against
the appellant was concerned, the learned Special Judge found
that the appellant was guilty of that charge in so far as it
related to the first, the second and the fourth consignments
referred to in that charge though not in respect of the
third consignment of nine cases sent on or about 31st July,
1962. The learned Special Judge accordingly- convicted the
appellant only in respect of the second charge and that too
in so far as it related to the first, the second ,and the
fourth consignments and acquitted him of all the other
charges including the second charge in so far as it was
based on the third consignment of nine cases sent on or
about 31st July, 1962. The appellant preferred an appeal
against the order passed by the learned Special Judge in so
far as it related to his conviction and the appeal was heard
by a Division Bench of the High Court of Bombay. The Divi-
sion Bench by a judgment dated 17th April, 1967 confirmed
the conviction of the appellant and also maintained the
sentence passed against him by the learned Special Judge.
The appellant immediately applied for a certificate for
leave to appeal to this Court and the certificate was
,granted by the High Court of Bombay on 18th April, 1967.
Since an appeal against the conviction was preferred to this
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Court, the President could have waited for the disposal of
the appeal before taking any action against the appellant on
the basis of the, conviction. But, instead, the President
passed an order dated 26 th October, 1967 ,dismissing the
appellant from service with immediate effect under Rule
19(1) of CCS (CCA) Rules, 1955 on the ground that the
conduct of the, appellant, which had led to the conviction,
was. such as to render his further retention in the public
service undesirable. The appeal against the conviction was,
thereafter, heard by this Court and by a judgment dated 19th
March, 1971 this Court allowed the appeal and set aside the
conviction of the appellant. It is necessary for the pur-
pose of the present appeal to make a detailed reference to
this judgment but it would be enough to state that the main
ground on which this Court exonerated the appellant was that
no customs duty was leviable on dispatch of goods from Goa
other parts of India and the appellant could not, therefore,
be said to be guilty of having obtained pecuniary advantage
in the shape of evasion of payment of customs duty by
abusing his official position and/or by illegal or corrupt
means. The conviction of the appellant having been set
aside, the order of dismissal based on the conviction
obviously could not be sustained and the President,
therefore, decided that the order of dismissal should be set
aside and passed an order to the following effect on 9th
June, 1971:
WHEREAS Shri H. L. Mehra, the then Senior
Supdt. of RMS was dismissed from service with
effect from 26th Octo-
143
ber, 1967 on the ground of conduct which led
to his conviction on a criminal charge vide
order No. 7/6/63-Disc. dated the 26th October,
1967.
AND WHEREAS the said conviction has been set
aside by the Supreme Court and the said Shri
H. L. Mehra has been acquitted of the said
charge, ;
AND WHEREAS in consequence of such acquittal
the President has decided that the said order
of dismissal should be set aside.
AND WHEREAS Shri H. L. Mehra, the then Senior
Supdt. of RMS, was under suspension vide order
No. 10/10 9/63-Vig. dated the 11th April,
1963, at the time of dismissal, and an enquiry
under the provisions of CCS (CCA) Rules, 1957
as ordered vide memo No. 7/6/63Disc. dated the
8th March, 1965 was pending against him;
AND WHEREAS the President has decided that the
said enquiry pending against Shri H. L. Mehra,
may be continued and under sub-rule 5(b) of
Rule 10 of CCS (CCA) Rules, 1965, Shri H. L.
Mehra should continue under suspension until
the termination of such proceedings
NOW, therefore, the President hereby-
(i) sets aside the said order of dismissal;
(ii) directs that the enquiry pending against
Shri H. L. Mehra, shall be continued until its
finalisation;
(iii) directs that the said Shri H. L. Mehra,
shall under sub-rule 5 (b) of Rule IO of CCS,
(CCA) Rules, 1965 continue to rema
in under
suspension until further orders."
The appellant being aggrieved by this order in so far as it
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directed continuance of the inquiry instituted against him
by the Memorandum dated 8th March, 1965 and also continued
his suspension under sub-r’ 5(b) of r. 10 of CCS (CCA)
Rules, 1965, filed a writ petition in the Del-hi High Court
challenging the validity of this order on various grounds
set out in the writ petition. Whilst the writ petition was
pending, the President issued another Memorandum dated 9th
December, 1971 dropping charges Nos. 1, III and IV set out
in the Memorandum dated 8th March, 1965 and directing that
the inquiry be continued only in respect of Charge 11 and
stating that an inquiry should also be held in respect of
three further charges set out in the statement of charges
enclosed with the Memorandum. The inquiry which was thus
continued against the appellant was an inquiry into Charge
II set out in the Memorandum dated 8th March, 1965 and the
three further charges set out in the Memorandum dated 9th
December, 1971. No progress was, however, made in the
inquiry in view of the writ petition filed by the appellant.
The writ petition was heard by a Division
144
Bench of the Delhi High Court and by a judgment dated 25th
February, 1972 the Division Bench rejected the various
grounds urged on behalf of the appellant against the
validity of the order dated 9th June, 1971 and dismissed the
writ petition. Hence the present appeal by the appellant
with certificate obtained from the Delhi High Court.
The order dated 9th June, 1971, impugned in this appeal,
consisted of three, parts. One part set aside the order of
dismissal passed against the appellant on 26th October,
1967, the other part directed continuance of the inquiry
instituted against the. appellant by the Memorandum dated
8th March, 1965, while the third part continued the
suspension of the appellant under sub-rule 5(b) of rule 10
of the CCS (CCA) Rules, 1965. So far as the second part of
the impugned order is concerned, it was no doubt challenged
as outside the authority of the President in the writ
petition as also in the arguments before the Delhi High
Court, but at the’ hearing of the appeal before us, it was
frankly conceded by the learned counsel for the appellant
that it was not possible for him to assail its validity.
That part of the impugned order must therefore, be held to
be valid. The only question debated before-us was-and this
raised a rather serious controversy-whether the third part
of the impugned order was valid : was it competent to the
President, in the circumstances of the case, to continue the
suspension of the appellant under sub-rule 5(b) of rule 10
of the CCS (CCA) Rules,- 1965 ? Even if it was not, could
this part of the impinged order be sustained under any other
provision of rule 10 of the CCS (CCA) Rules, 1965 ?
The suspension of the appellant was originally made under an
order dated 11th April, 1963 in exercise of the power
conferred under sub-rule (1) of rule 12 of the CCS (CCA)
Rules, 1957 and it was this suspension which was purported
to be continued by the impugned order under sub-rule 5(b) of
rule 10 of the CCS (CCA) Rules, 1965. There was some
controversy before tile Delhi High Court as to which set of
Rules would be applicable for continuing the suspension of
the, appellant at the date when the impugned order was
passed. The appellant contended that the Rules- applicable
would be the CCS (CCA) Rules, 1957 and the impugned order
made under the CCS (CCA) Rules, 1965 was, therefore, bad.
But this contention was rejected by the Delhi High Court and
rightly because rule 34 of the CCS (CCA) Rules, 1965, which
repeals the CCS (CCA) Rules, 1957 provides in Proviso (b)
for the application of the CCS (CCA) Rules, 1965 to pending
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proceedings. This being the, clear position, the learned
counsel for the appellant conceded that the validity of the
impugned order continuing the suspension of the appellant
would have to be judged by reference to the CCS (CCA) Rules,
1965.
Now the only provision in the CCS (CCA) Rules, 1965 which
deals with suspension is rule 10. It would be, convenient
at this stage to refer to the relevant provisions of that
rule’
145
"10.(1) The appointing authority or any authority to which
it is subordinate or the disciplinary authority or any other
authority empowered in that behalf by the President by
general or special order, may place a Government servant
under suspension-
(a) where a disciplinary proceeding against
him is contmplated or is pending, or-
(3) Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon a Government servant under suspension is
set aside in appeal or on review under these
rules and the case is remitted for further
inquiry or action or with any other
directions, the order of his suspension shall
be deemed to have continued in force on and
from the date of the original order of
dismissal, removal or compulsory retirement
and shall remain in force until further
orders.
(4) Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon a Government, servant is set aside or
declared or rendered void in consequence of or
by a decision of a court of law and the
disciplinary authority, on a consideration of
the circumstances of the case, decide to hold
a further inquiry against him on the
allegations on which the penalty of dismissal,
removal or compulsory retirement was
originally imposed the Government servant
shall be deemed to have been placed under
suspension by the Appointing Authority from
the date of the original order of dismissal,
removal or compulsory retirement and shall
continue to remain under suspension until
further orders.
(5) (a) An order of suspension made or
deemed to have been made under this rule shall
continue to remain in force until it is
modified or revoked by the authority competent
to do so.
(b) Where a Government servant is suspended
or is deemed to have been suspended, (whether
in connection with any disciplinary proceeding
or otherwise), and any other disciplinary
proceeding is commenced against him during the
continuance of that suspension the authority
competent to place him under suspension may’
for reasons to be recorded by him in writing,
direct that the Government servant shall
continue to be under suspension until the
termination of all or any of such
proceedings."
Since the impugned order continuing the suspension of the
appellant is purported to be made under sub-rule 5(b) of
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rule 10, we may first
146
examine whether it is justified on the terms of that sub-
rule. Sub-rule 5(b) postulates that a Government servant is
suspended or deemed to have been suspended-this latter
contingency would arise where a case falls within sub-rule
(2)-and during the continuance of his suspension "any other
disciplinary preceding" is commenced against him and
provides that ’M. such a case, a direction may be given that
he shall continue under suspension until the termination of
such disciplinary proceeding. The words "Government servant
shall continue to be under suspension" in the juxtaposition
of the opening clause clearly suggest that the basic
condition for the applicability of subrule 5 (b) is that the
Government servant should be under continuing suspension at
the date when "any other disciplinary proceeding" is
commenced against him and direction is given for continuance
of the suspension. It is indeed difficult to see how a
Government servant can be directed to continue to be under
suspension unless he is under suspension at the time when
such direction is given. There can be fresh suspension of a
Government servant but we fail to see how there can be
continuance of a suspension which does not exist. Two con-
ditions, must, therefore, co-exist before action can be
taken under subrule 5 (b) : one is that the Government
servant must be under continuing, suspension and the other
is that during the continuance of such suspension "any other
disciplinary proceeding" should be commenced against him.
Now in the present case, we will assume with the respondents
that under the second part of the impugned order, a
disciplinary proceeding was commenced against the appellant,
though it was really a revival of the old inquiry instituted
under the Memorandum dated 8th March, 1965 and not the
commencement of a new disciplinary proceeding. But even so,
the question would still remain whether the, appellant was
under suspension at the date when the impugned order was
made. It is only, if he was, that he could be continued
under suspension under sub-rule 5(b) of rule 10. The
appellant was originally suspended under the order dated
11th April, 1963 because a case against him in respect of a
criminal offence was under investigation. This was followed
by the institution of a criminal case against him and in
this criminal case he was convicted by the Special Judge and
his conviction was confirmed by the Bombay High Court. On
the basis of the judgment of the Bombay High Court
confirming his conviction, he was dismissed by the President
by an order dated 26th October, 1967. The argument of the
appellant was that on the passing of the order of dismissal,
his suspension came to an end and even though the order of
dismissal was subsequently set aside by the President by
the. first part of the impugned order, that did not have the
effect of reviving the suspension and the appellant was
accordingly not under suspension at the date when the
impugned order was made. The respondents, on the other
hand, contended that by reason of sub-rule, 5(b) of rule 10
the order of suspension passed on 11th April, 1963 continued
to remain in force despite the making of the order of
dismissal and in any event, even if the suspension came to
an end as a result of the passing of the order of dismissal,
it was revived with retrospective effect when the order of
dismissal was set aside by the President by the first part
of the impugned, order
147
and, therefore, at the instant of time when the third part
of the impugned order was made under sub-rule 5(b) of rule
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10, the appellant was under suspension. We find there is
great force in the argument of the appellant and the
contention of the respondents to the contrary must be
rejected. Both principle as well as precedent compel us to
this conclusion.
Let us first examine the, question on principle. When an
order of suspension is made against a Government servant
pending an enquiry into his conduct, the relationship of
master and servant does not come to an end. What the
Government, as master, does in such a case is merely to
suspend the Government servant from performing the duties of
his office. The Government issues a direction forbidding
the Government servant from doing the work which he was
required to do under the terms of the contract of service or
the statute or rules governing his conditions of service, at
the same time keeping in force the relationship of master
and servant. In other words, to quote Hegde, J., from V. P.
Gindroniya v. State of Madhya Pradesh & Ors.,(1), "the
employer is regarded as issuing an order to the employee,
which because the contract is subsisting, the employee must
obey". This being the true nature of an order of
suspension, it follows that the Government servant would be
entitled to his remuneration for the period of suspension
unless there is some provision in the statute or rules
governing his conditions of service which provides for
withholding of such remuneration. Now, when an order of
dismissal is passed, the vinculum juris between the
Government and the servant is dissolved : the relationship
of master and servant between them is extinguished. Then
the order of suspension must a fortiorari come to an end.
But what happens when the order of dismissal is subsequently
set aside ? Does that revive the order of suspension ? We do
not think so. Once the suspension has come to an end by an
order of dismissal, which was effective when made, it cannot
be revived by mere subsequent setting aside of the order of
dismissal in the absence of a statutory provision or rule to
that effect. That is precisely the reason why sub-rules (3)
and (4) had to be introduced in rule 10 providing for
retrospective revival and continuance of the suspension in
cases falling within those sub-rules. This position which
emerge clearly on principle is supported also by authority.
There is a decision of a Bench of six judges of this Court
which endorses the same view. That is the decision in Om
Prakash Gupta v. The State of Uttar Pradesh.(2) The
appellant in that case was suspended from service with
effect from 24th August, 1944 pending an enquiry into his
conduct. The Commissioner completed the enquiry and made a
report to the Government and on the basis of the report the
Government passed an order dated 25th November, 1944
dismissing the appellant from service. The appellant
claimed that the order of dismissal passed against him was
illegal and void and he continued to be in service and was
entitled to recover affairs of salary. The claim that the
order of dismissal was illegal and void and the appellant
continued to be in service was upheld by
(1) [1970] 3 S.C.R. 448.
(2) [1955] 2 S.C.R. 391.
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the High Court but relief by way of recovery of arrears of
salary was refused and the appellant, therefore, preferred
an appeal to this Court. The claim of the appellant for
affairs of salary which was debated before this Court
related to two distinct periods : one from the date of the
order of suspension up to the date of the order of
dismissal, and the other from the date of the order of
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dismissal up to the date when the order of dismissal was set
aside by the Court. So far as the claim for the first
period was concerned, the appellant gave it up before this
Court, as it would have necessitated a remand which would
have involved the appellant in heavy expenditure and
harassment. The claim for the second period was, however,
seriously pressed on behalf of the appellant and this Court
decreed it for reasons which may best be stated in the words
of Imam, J., speaking on behalf of the Court :
"He, i.e., the appellant, however, contended
that the order of suspension continued to be
in force only until the 25th November, 1944,
the date of the order of dismissal. on that
date the order of suspension ceased to exist
and the appellant was entitled to recover
arrears of salary from the 25th November,
1944, to the 31st December, 1947, inclusive.
The Attorney-General strongly contended that
it continued to be in force and that it was
not at all affected by the declaration of the
Civil Judge that the order of dismissal was
illegal. In view of that decision the order
of dismissal must be regarded as a nullity and
non-existent in the eye of law. The inquiry,
the outcome of which was the order of
dismissal, had not therefore ended. It could
only end with a valid order which would replace
the order of suspension. Until that happened
the accusation against the appellant remained
and the inquiry had not ended. He referred to
the case of. M. Gopal Krishna Naidu v. State
of Madhya Pradesh(,’). On behalf of the
appellant reliance was placed on the case of
Provincial Government, Central Provinces and
Berar through Collector, Amraoti V. Shamshul
Hossain Siral Hussain (2) . The order of
suspension made against the appellant was
clearly one made pending an inquiry. It
certainly was not a penalty imposed after an
enquiry. As the result of the inquiry an
order of dismissal by way of penalty had been
passed against the appellant. With that
order, the order of suspension lapsed. The
order of dismissal replaced the order of
suspension which then ceased to. exist. That
clearly was the position between the
Government of the United Provinces and the
appellant. The subsequent declaration by a
Civil Court that the order of dismissal was
illegal could not revive an order of
suspension which did not exist. The case,
referred to by the Attomey-General is not
directly in point and that decision does not
conflict with the case relied upon by the
appellant. The appellant is, therefore,
entitled to recover
(1) A.I.R. 1952 Nag. 170. (2) I.L.R. 1948 Nag.
576: A.I.R. (36) 1949 Nag. 118.
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arrears of salary from the 25th November,
1944, to 31st December, 1947."
This decision leaves no room for doubt as to the correct
legal position and the conclusion must, therefore,
inevitably follow that when the order of dismissal was
passed on 26th October, 1967, the order of suspension dated
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11th April, 1963 ceased to exist and it did not revive
thereafter by the subsequent setting aside of the order of
dismissal by the first part of the impugned Order. The
appellant was accordingly not under suspension at the point
of time when the third part of the impugned order was made
and in the circumstances, the third part of the impugned
order could not be justified under subrule 5(b) of rule 10.
But that does not conclude the question. It is now well
settled that when an authority passes an order which is
within its competence, it cannot fail merely because it
purports to be made under u wrong provision, if it can be
shown to be within its power under any other provision. If
the power is otherwise established, the fact that the source
of the power has been incorrectly described in the order
would not make it invalid. Vide P. Balakotaiah v. The Union
of India(1) and Afzal Ullah v. State of Uttar Pradesh(2).
We must, therefore, proceed to consider whether the third
part of the impugned order could be justified under any
other provision contained in rule 10. sub-rule (3) obviously
could not be invoked because the order of dismissal was not
"set aside in appeal or on review" under the CCS (CCA)
Rules, 1965. The only sub-rule which could be and was
relied upon by the respondents was sub-rule (4) and it was
urged that under that sub-rule, the order of dismissal
having been set aside by the President in consequence of the
decision of this Court acquitting the appellant, the
appellant must be deemed to have been placed under
suspension by the President from the date of the original
order of dismissal, and he would continue to remain under
suspension until further orders and it was in recognition of
this position that the third part of the impugned order was
made. This contention of the respondents is also without
force. There are two conditions which must be satisfied in
order to attract the operation of sub-rule (4). First, the
order of dismissal must be set aside in consequence of a
decision of a court of law-we are setting out here only the
material part of the first condition, and secondly, the
disciplinary authority must decide to hold a fresh enquiry
on the allegations on which the order of dismissal was
originally passed. The first condition was admittedly
satisfied in the present case because the order of dismissal
was set aside by the President in consequence of the
decision of this Court acquitting the appellant. The
question is whether the second condition was satisfied. Was
the inquiry continued under the impugned order an inquiry
against the Appellant on the allegations on which the
original order of dismissal was based? To answer this
question, we must once again turn to the facts which we have
already
(1) [1958] S.C.R. 1052.
(2) [1964] 4 S.C.R. 991.
150
narrated. The penalty of dismissal was imposed on the
appellant on the ground that his conduct, which had led-to
the conviction, was such as to render his further retention
in the public service undesirable. Now the conviction of
the appellant was in respect of the second charge in so far
as it related to the first, the second and the fourth
consignments, and therefore, the conduct of the appellant
which led to his conviction was that set out in the second
charge in reference to the first, the second and the fourth
consignments. So far as the second charge in relation to
the third consignment of nine cases alleged to have
dispatched on or about 31st July, 1962 is concerned, the
appellant was acquitted and his alleged conduct in
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dispatching these cases did not lead to his conviction. The
allegations on which the penalty of dismissal was originally
imposed on the appellant were, therefore, those set out in
the second charge in relation to the first, the second and
the fourth consignments. The enquiry instituted under the
memorandum dated 8th March, 1965, which was revived and
continued under the second part of the impugned order, was
obviously not an enquiry against the, appellant on any of
those allegations. The allegations on which this enquiry
was instituted were those stated in charges I to IV enclosed
with the memorandum dated 8th March, 1965 and they did not
include any allegations relating to dispatch of the first,
the second and the fourth consignments which formed the
basis of the making of the original order of dismissal. The
allegations contained in charges 1, II and III were in fact
wholly unrelated to any of the charges in the criminal case.
The allegations in charge 11 relating to dispatch of nine
cases on or about 31st July, 1962, no doubt, formed the
subject matter of the second charge in relation to the third
consignment, but in respect of this charge, as already
pointed out, the appellant was acquitted and the original
order of dismissal was obviously not based on these
allegations. The enquiry revived and continued under the
second part of the impugned order was, therefore, clearly
not an enquiry on the allegations on which the penalty of
dismissal was originally imposed on the appellant. Sub-rule
(4) of rule 10 had accordingly no application and it could
not be invoked to justify the third part of the impugned
order.
We must at this stage refer to one other contention advanced
on behalf of the respondents in support of the third part of
the impugned order. That contention was based on sub-rule
5(a) of rule 10, which provides that an order of suspension
made or deemed to have been made under that rule shall
continue to remain in force until it is modified or revoked
by the authority competent to do so. The argument of the
respondents was that the order of suspension dated 11th
April, 1963, though made under sub-rule (1) of rule 12 of
the CCS (CCA) Rules, 1957, must, by reason of proviso (b) to
rule 54, be deemed to have been made under sub-rule (1) of
rule 10, and consequently, it must, by virtue of sub-rule
5(a) of rule 10, continue to remain in force until modified
or revoked by a competent authority. It was said that the
President, who is the competent authority for this purpose,
had at no time revoked or modified this
151
order of suspension and it, therefore, continued in force
even after the making of the order of dismissal dated 26th
October, 1967 and the third part of the impugned order did
no more than merely recognise this position. This
contention is wholly without force : it has merely to be
stated in order to be rejected. We fail to see how an order
of suspension can continue to be in force after the
relationship of master and servant has come to an end by the
making of an order of dismissal. How can a Government
servant be forbidden from performing the duties of his
office when his office is no more and he has no duties to
perform because he is dismissed? The order of suspension
postulates the continuance of the relationship of master and
servant and this postulate is not destroyed by sub-rule 5(a)
of rule 10. This sub-rule operates only within the
framework of the relationship of master and servant. Once
the relationship of master and servant is dissolved, the
suspension necessarily comes to an end and sub-rule 5(a) of
rule 10 cannot possibly be construed to have the effect of
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continuing the suspension. The third part of the impugned
order cannot therefore be sustained by reference to sub-
rule 5(a) of rule 10.
We must, therefore, inevitably reach the conclusion that the
third part of the impugned order continuing the suspension
of the appellant was outside the authority of the President.
It could not be sustained under any of the three sub-rules
of rule 10, namely sub-rules 3, 5(a) and 5(b), on which
reliance was placed on behalf of the respondents. Sub-rule
(1) of rule 10 was rightly not invoked by the respondents
because, in making the third part of the impugned order,
what the President did was merely to continue what he
erroneously believed to be a subsisting suspension of the
appellant until the termination of the enquiry and he did
not claim or even profess to make a fresh order of
suspension. The third part of the impugned order continuing
the suspension of the appellant could not, therefore, be
justified under any sub-rule of rule 10. It is unfortunate
that though different sub-rules of rule 10 have been enacted
with great care and they are intended to be exhaustive so as
to provide for all possible situations where it may be found
necessary to revive and continue an order of suspension, a
lacunas has remained and there is no provision made for a
case such as the one we have before us, Perhaps a case of
this kind would be rare and that is why the rule making
authority has not thought about making any provision for it
in rule 10. But there can be no doubt that it is a lacuna
and it must be remedied in order that there may be no break
in the suspension of the Government servant when an order of
dismissal is set aside or declared or rendered void in a
situation of this kind. However, as rule 10 stands to-day,
the third part of the impugned order continuing the
suspension of the appellant must be held to be void and
inoperative That means that the suspension of the appellant
under the order dated 11th April, 1963 came to an end on
25th October, 1967 when the order of dismissal was passed
against him and since then the appellant is no longer under
suspension. The appellant must, therefore, be held to be
entitled to salary from 26th October, 1967 and an order for
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payment of arrears of salary must be passed in his favour.
This of course does not mean that the President cannot now,
in- exercise of the power under sub-rule (1) of rule 10,
pass a fresh order of suspension against the appellant
pending the enquiry which has been revived and continued
against him. It would always be open to the President to
take appropriate action by way of suspension against the
appellant under sub-rule (1) of rule 10, if he so thinks
fit. But until such action is taken, the appellant would be
entitled to his salary under the conditions of service
applicable to him. The claim of the appellant for the
period between 11th April, 1963 and 25th October, 1967
stands on a different footing. During this period the
appellant was validly under suspension and whilst under
suspension he received-subsistence allowance as provided in
the relevant rules. Whether for this period the appellant
is entitled to be paid full pay allowances or some
proportion of such pay and allowances or nothing more than
the subsistence allowance would be a matter for the appro-
priate authority to decide under the relevant rules. If the
decision of the appropriate authority on this question, when
made, is contrary to the rules governing the conditions of
service, the appellant would be free to challenge such
decision. But that question does not arise now and we do
not purpose to express any opinion upon it.
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We therefore, partly allow the appeal and issue a writ of
mandamus quashing and setting aside the third part of the
impugned order dated 9th June, 1971 continuing the
suspension of the appellant and direct the respondents to
pay to the appellant arrears of salary from 26th October,
1967 after deducting the amount of subsistence allowance
paid to him. Since the appellant has partly succeeded and
party failed, the fair order of costs would be that each
party should bear and pay its own costs throughout.
Appeal partly allowed.
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