Khem Chand Vs. Union of India [1962] INSC
264 (25 September 1962)
25/09/1962 GUPTA, K.C. DAS GUPTA, K.C. DAS
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
SHAH, J.C.
CITATION: 1963 AIR 687 1963 SCR Supl. (1) 229
CITATOR INFO :
R 1964 SC 72 (46) R 1977 SC1466 (35) R 1983
SC 803 (19) RF 1986 SC1168 (9,10) 1992 SC1981 (7,11)
ACT:
Public Servants-Dismissal-Order set aside by
Supreme CourtFresh enquiry on same charges-Suspension-Rule providing that
public servant shall be deemed to be under suspension from date of original
order of suspension-Validity of Central Civil Services (Classification, Control
and Appeal) Rules, 1957, r. 12(4)-Constitution of India, Arts. 14, 19(1)(f), 31
(1), 142, 144.
HEADNOTE:
The appellant a public servant was served
with a charge sheet and after enquiry was dismissed. The filed a suit for a
declaration that the order of dismissal was invalid and for a further
declaration that he still continued to be in service. The suit was ultimately
decreed by the Supreme Court by making the declarations sought. In the meantime
the appellant filed another suit for recovery of arrears of salary and
allowances. The suit was stayed pending the disposal of the appeal before the
Supreme Court. After the judgment of the Supreme Court, the authorities decided
to hold a further enquiry against the appellant on the original allegations. In
view of r. 12(4) Central Civil Services (Classification, Control and Appeal)
Rules, 1957, the trial court ordered that the proceedings shall remain stayed
till the order of suspension was revoked or set aside. Rule 12(4) provides that
where a penalty of dismissal, removal or compulsory retirement is set aside by
a court of law and the authorities decide to hold a further enquiry on the same
allegations, the public servant shall be deemed to have been placed under
suspension from the date of the original order of dismissal, removal or
compulsory retirement. The appellant contended that r. 12 (4) offended Arts.
14, 19 (1) (f), 31, 142 and 144 of the Constitution and was void.
Held, that r. 12(4) did not offend any of the
Articles of the Constitution and 'was valid.
Article 142 provides that decrees passed by
the Supreme Court shall be enforceable throughout the territory of India, and
Art. 144 provides that all authorities, civil and judicial shall act in aid of
the Supreme Court. Rule 12 (4) did not go against the decree of the Supreme
Court. and accordingly it did not contravene Arts. 142 and 144. The declaration
by the 230 Supreme Court that the appellant was a member of the service at the
date of the institution of the suit was not affected by the appellant being
placed under suspension. The only things affected by r. 12(4) were the salary
and allowances of the appellant as to which the Supreme Court decree contained
no directions.
Rule 12(4) did not contravene Art.. 19(1)
(f). Conceding that the right to receive arrears of salary constituted the
appellant's property and that r. 12(4) placed substantial restrictions on the
exercise of that right, the restrictions were in the interest of the general
public.
The taking of disciplinary action against
public servants for inefficiency, dishonesty etc. was absolutely necessary in
the interests of the general public. Suspension of the public servant pending
enquiry was a necessary and reasonable part of the procedure.
Devendra Pratap v. State of U. P., [1962]
Sapp. 1. S. C. R.
315.1334, distinguished.
The argument that there was discrimination
between a public servant the penalty of dismissal etc. on whom was set aside by
a court and another public servant a similar penalty on whom was set aside on
appeal by the departmental disciplinary authority was incorrect. Rule 12(3)
provided that in the latter case also the suspension of the public servant shall
be deemed to have continued in force from the date of the original order of
dismissal etc. Only in the case of a public servant who had not been placed
under suspension pending enquiry, would r. 12 (3) not be operative. But such
cases were rare. Rule 12(4) did n;t' offend Art. 31 (1) and whatever
deprivation of property resulted from r. 12 (4) was by authority of law.
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 124 of 1962.
Appeal by special leave from the judgment and
order dated November 14, 1960, of the Punjab High Court (Circuit Bench), Delhi
in Civil Revision Case No. 224-D of 1959.
Janardan Sharma, for the appellant.
R.Ganapathy Iyer and P. D. Menon, for the
respondents.
1962. September 25. The judgment of the Court
was delivered by 231 DAS GUPTA J.---This appeal by special leave raises the
question of validity of r. 12(4) of the Central Civil Services (Classification,
Control and Appeal) Rules, 1957, that were framed by the President and
published by a notification dated February 28, 1957. Rule 12(4) is in these
words :"12(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, decides 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." The question arises in this way. On July
1, 1949, the appellant, who was a permanent Sub-Inspector of Co-operative
Societies, Delhi, was suspended by the Deputy Commissioner, Delhi,. On July 9
he was served with a charge-sheet under r. 6(1) of the Rules which had been
framed by the Chief Commissioner, Delhi. On a consideration of the report made
by the officers, who had held an enquiry into the several charges against him
the Deputy Commissioner, Delhi, made an order on December 17, 1951, dismissing
this appellant.
The appellant filed a suit on May 20, 1953,
praying for a declaration that the order of dismissal made against him was
invalid in law being in violation of Art. 311 of the Constitution of India and
for a further declaration that, he still continued to be in service of the Government.
232 The Trial Court decreed the suit on May 3
1, 1954, declaring that the plaintiff's dismissal was void and inoperative and
that the plaintiff continued to be in service of the State of Delhi at the date
of the institution of the suit.
The appeal by the Government of India was
dismissed by the Senior Subordinate judge, Delhi on December 31, 1954.
The decree was however set aside by the
Punjab High Court on November 1, 1955, in Second Appeal by the State and the
suit was dismissed.
Against this decision of the High Court, the
appellant preferred an appeal by special leave to this Court. This Court held
that the provisions of Art. 311(2) had not been fully complied with and the
appellant had not had the benefit of all the constitutional protections and
accordingly, his dismissal could not be supported. The Court then passed the
following order :"We, therefore, accept this appeal and set aside the
order of the Single judge and decree the appellant's suit by making a
declaration that the order of dismissal passed by the Deputy Commissioner on
December 17, 1951 purporting to dismiss the appellant from service was
inoperative that the appellant was a member the service at the date of the
institution of the suit out of which, this appeal has arisen. The appellant
will get costs throughout in all courts. Under Order XIV Rule 7 of the Supreme
Court Rules, we direct that the appellant should be paid his fees which we
assess at Rs. 250".
The judgment of this Court wag delivered on
December 13, 1957, and is reported in [1958] Supreme Court Reports at page
1080.
233 On April 20, 1955, i.e., shortly after
the Government appeal had been dismissed by the Senior Subordinate judge, the
appellant instituted a suit in the Court of the Senior Sub judge, Delhi, out of
which the present appeal has arisen.
The defendants in this suit are: 1. The Union
of India; 2.
The State of Delhi; and 3. The Collector and
Registrar, Cooperative Societies, Delhi. In this suit the plaintiff claims, on
the basis of the decree obtained by him in the earlier suit, a sum of Rs.
14,042/8/as arrears of salary 'and allowances. The hearing of the suit was
however stayed by the Trial Court on December 26, 1955, in view of the pendency
of the appellant's appeal in this Court against the decision of the Punjab High
Court dismissing the earlier suit. As already stated, this Court delivered the
judgment in that appeal on December 13, 1957. On December 26, 1957, the
appellant made an application to the Trial Court praying that the hearing of
the suit be taken up. Before, however, the suit could be disposed of, the
defendants made an application to the Subordinate judge, on August 7, 1958stating
that the disciplinary authority had on a consideration of the circumstances of
the case, decided to hold a further enquiries against this appellant on the
allegations on which he had been originally dismissed and that, consequently,
the appellant should be deemed to have been placed under suspension by the
appointing authority from December 17, 1951,-the date of the original order of
dismissal. Accordingly, it was contended by the defendants that the plaintiff's
claim in the present suit was untenable.
On February 14, 1959, the Trial Court made an
order in these terms "'It is hereby ordered that the proceedings in the
case shall remain stayed until the time the order of suspension is revoked
under Rule (5) of the Central Civil Service (Classification, Control and
Appeal) Rules, 1957 referred to above 234 or its being set aside by a competent
tribunal or authority whichever event occurs earlier.
The hearing of the suit is adjourned sine die
and the proceedings shall be revived on the application of the plaintiff after
the occurrence of any of the two events referred to above." Against this
order the appellant filed a revisional application in the Punjab High Court
challenging the validity of r. 12(4) of the Central Civil Service (Classification,
Control and Appeal) Rules, 1957. A Division Bench of the High Court dismissed
the revision petition rejecting the appellant's contention against the validity
of r. 12(4).
Against that decision of the High Court the
appellant has filed the present appeal after obtaining special leave from this
Court.
It is clear that if r. 12(4) of the Central
Civil Service (Classification, Control and Appeal) Rules, 1957,is valid the
appellant must be deemed to have been placed under suspension from December 17,
1951. For, it is not disputed that after the penalty, of dismissal imposed on
him had been rendered void by the decision of this Court, the disciplinary
authority did in fact decide to hold a further enquiry against him on the
allegations on which this penalty of dismissal had originally been imposed. It
is equally clear that if the appellant be deemed to have been placed under
suspension from December 17, 1951, the order made by the Trial Court staying
the hearing of the suit and the order of the High Court rejecting the
revisional application are not open to challenge. The sole question therefore
is whether r. 12(4) is valid in law.
This rule forms part of the rules made by the
President in exercise of the powers conferred on him by the proviso to Art. 309
and cl. 5 of Art. 148; of the Constitution. The main provisions of Art. 309 is
that subject to the provisions of the Constitution, Acts of the appropriate
Legislature may regulate the recruitment, and conditions of service of per-sons
appointed, to public services and posts in connection 235 with the affairs of
the Union or of any State. The proviso to this Article makes it competent for
the President or such other person as he may direct, in the case of services
and posts in connection with the affairs of the Union, to make rules regulating
the recruitment and the conditions of service of persons appointed to such services
and posts until provision in that behalf is made by or under an Act of the
appropriate Legislature under this Article. Clause 5 of Art. 148 makes a
similar provision in respect of' the conditions of service in the Indian Audit
and Accounts Department and provides inter alia that subject to the provisions
of the Constitution and of any law made by Parliament, the conditions of
service of persons serving in the Indian Audit and Accounts Department shall be
such as may be prescribed by rules made by the President after consultation
with the Comptroller and Auditor-General.
Mr. janardan Sharma rightly contends that
this lower of the President to make rules is subject to all the provisions of
the Constitution and consequently if in making the rule the rule-making
authority has contravened any of the provisions of the Constitution the rule is
invalid to the extent of such contravention. According to Mr. Sharma r. 12(4)
contravenes the provisions of Art. 142, Art. 144, Art. 19(1) (f), Art. 31 and
also Art. 14 of the Constitution.
The argument that the impugned Rule
contravenes Art. 142 and Art. 144 is practically the same. Article 142 provides
inter alia that any decree passed by the Supreme Court in the exercise of its
jurisdiction shall be enforceable throughout the, territory of India in such
manner as may be prescribed by or under any law made by Parliament and until
provision in that behalf is so made, in such manner as the President may by
order prescribe. Article 144 provides that all authorities, civil and judicial,
in the territory of India shall act in aid of the Supreme Court. Mr. Sharma's
argument as far as we could 236 understand it is that under these provisions of
Arts. 142 and 144 a duty lay on the President to do all that was necessary to
give effect to the decree made by this Court in the earlier appeal and that by
framing r. 12(4) the President has, in effect, gone against the directions of
this Court as contained in that decree. In our judgment, there is no substance
in this contention. If the decree of this Court had directed payment of arrears
of appellant's salary and allowances and the effect of the rule made by the
President was to deprive him of that right there might perhaps have been scope
for an argument that the rule contravened the provisions of Art. 144. The
decree made by this Court did not however contain any direction as regards
payment of salary and allowances. It did contain a direction that the appellant
will get his costs throughout in all courts. Quite clearly, however, the
impugned rule does not in any way affect that right of the appellant. The only
other relief granted by the decree was the making of a declaration that the
order of dismissal passed by the Deputy Commissioner, Delhi, on December 17,
1951, purporting to dismiss the appellant from service was inoperative and that
the appellant was a member of the service at the date of the institution of the
suit out of which the appeal had arisen.
Does the impugned rule go against this
declaration? The answer, in our opinion, must be in the negative. The provision
in the rule that the Government servant shall be deemed to have been placed
under suspension from the date of the original order of dismissal does not seek
to affect the position that the order of dismissal previously passed was
inoperative and that the appellant was a member of the service on May 25, 1953,
when the first, suit was instituted by the appellant. An order of suspension of
a government servant does not put an end to his service under the Government. He
continues to be a member of the service inspite of the order of suspension.
There was a termination of the appellant'$ service when the order of dismissal
was I 'made on 237 December 17, 1951. When that order of dismissal was act
aside: the appellant's service revived; and so long as another order of
dismissal is not made or the service of the appellant is not terminated by some
other means, the appellant continues to be a member of the service and the
order of suspension in no way affects this position. The real effect of the
order of suspension is that though he continued to be a member of the
Government service he was not permitted to work, and further, during the period
of his suspension he was paid only some allowance generally called,
""subsistence allowance"-which is normally less than his
salary-instead of the pay and allowances he would have been entitled to if he
had not been suspended. There is no doubt that the order of suspension affects
a government servant injuriously. There is no basis for thinking however that
because of the order of suspension he ceases to be a member of the service. The
provision in r. 12(4) that in certain circumstances the Government servant
shall be deemed to have been placed under suspension from the date of the
original order of dismissal and shall continue to remain under suspension until
further orders, does not in any way go against the declaration made by this
Court. The contention that the impugned Rule contravenes Arts. 142 or 144 is
therefore untenable.
Equally untenable is the appellant's next
contention that the impugned rule contravenes the provisions of Art.
19(1)(f) of the Constitution. The argument is
that as a result of this Court's decree the appellant had a right to his
arrears of pay and allowances. This right constituted his property; and as the
effect of the impugned Rule is that he would not, for some time at least, get
those arrears it restricts his right. It may be conceded that the right to
arrears of pay and allowances constituted property within the meaning of Art.
19(1)(f) of the Constitution and further, that the effect of r. 12(4) is a 238
substantial restriction of his right in respect of that property under Art.
19(1)(f). The question remains whether this restriction is a reasonable restriction
in the interests of the general public. Nobody can seriously doubt the
importance and necessity of proper disciplinary action being taken against
government servants for inefficiency, dishonesty or other suitable reasons.
Such action is certainly against the immediate interests of the Government
servant concerned; but is absolutely necessary in the interests. of the general
public for serving whose interests the government machinery exists and
functions.
Suspension of a government servant pending an
enquiry is a necessary part of the procedure for taking disciplinary action
against him. It follows, therefore, that when the penalty of dismissal has been
set aside but the disciplinary authority decides to hold a further enquiry on
the same facts against him a fresh order of suspension till the enquiry can be
completed, in accordance with law, is a reasonable step of the, procedure. We
have no hesitation in holding, therefore, that in so far as r.12(4) restricts
the appellant's right under Art. 19(1)(f) of the Constitution, it is a
reasonable restriction in the interests of the general public. Rule 12(4) is
therefore within the saving provisions of Art. 19(6), so that there is no
contravention of the constitutional provisions.
Mr. Sharma drew our attention to the decision
of this Court in Devendra Pratap v. State of Uttar Pradesh(1) where the effect
of r. 54 of the Fundamental Rules framed by the State of U. P. under Art. 309
was considered. It was held that while r. 54 undoubtedly enabled the State
Government to fix the pay of a public servant where dismissal is set aside in a
departmental appeal, the rule has no application to cases in which the
dismissal of a public servant is declared invalid by a civil court and he is
reinstated and that it would not in such a contingency be open to the authority
to deprive the (1) [1962] Supp. 1 S. C. R. 315.
239 public servant of the remuneration which
he would have earned had he been permitted to work. This decision has however
no application to a case like the present, where because of the operation of r.
12 (4) of ,the Central Civil Service (Classification, Control & Appeal)
Rules, 1957, the public servant is deemed to be placed under suspension from
the date of the original order of dismissal.
This brings us to the attack on the rule on
the basis of Art. 14. According to Mr. Sharma the result of the impugned rule
is that where a penalty of dismissal, removal or compulsory retirement from
service imposed on 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 decides to hold a further enquiry against 'him on the allegations on
which the penalty was originally imposed, the consequence will follow that the
government servant shall be deemed to have been placed under suspension from
the date of the original imposition of penalty, whereas no such consequence
will follow where a similar penalty is set aside not by a court of law but by
the departmental disciplinary authority. According to Mr. Sharma, therefore,
there is a discrimination between a government servant the penalty of
dismissal, removal or compulsory retirement on whom is set aside by a decision
of a court of law and another government servant a similar, penalty on whom is
set aside on appeal by the departmental disciplinary authority. The argument
however ignores the result of rule 30 (2) and rule 12 (3) of these rules. Rule
30 (2) provides inter alia that in the case of an appeal against an order
imposing any of the penalties specified in rule 13, i.e., the penalty of
dismissal, removal or compulsory retirement and certain other penalties, the
appellate authority shall pass orders:
"(1)setting aside, reducing, confirming
or enhancing the penalty; or (ii) remitting the case to. the authority which
imposed the penalty 240 or to any other authority with such direction as it may
deem fit in the circumstances of the case." Rule 12 (3) provides that
"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
enquiry 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." Where a penalty of dismissal, removal or compulsory
retirement imposed upon a government servant is set aside by the departmental
authority on appeal, it may or may not order further enquiry; just as where a
similar penalty is set aside by a decision of a court of law the disciplinary
authority may or may not direct a further enquiry. Where the appellate authority
after setting aside a penalty of dismissal, removal or compulsory retirement
makes an order under r. 30 (2) (ii) remitting the case to the authority which
imposed the penalty, for further enquiry, rule 12 (3) will come into operation
and so the order of suspension which in almost all cases is likely to be made
where a disciplinary proceeding is contemplated or is pending r. 12 (3) shall
be deemed to have continued in force on and from the date of the original order
of dismissal and shall remain in force until further orders.
There is therefore no difference worth the
name between the effect of rule 12 (4) on a government servant the penalty of
dismissal, removal or compulsory retirement on whom is set aside by a decision
of a court of law and a further enquiry is decided upon and the effect of r. 12
(4) on an-other government servant a similar penalty on whom is set aside in
appeal or on review by the departmental authority and a further enquiry is
decided upon. In both cases the government servant will be deemed to be under
suspension from the date of the. original order of dismissal, except 241 that
where in a departmental enquiry a government servant was not placed under
suspension prior to the date when the penalty was imposed, this result will not
follow, as r. 12 (3) would not then have any operation. It is entirely unlikely
however that ordinarily a government servant will not be placed under
suspension prior to the date of his dismissal. Rule 12 (1) provides that the
appointing authority or any authority to which it is subordinate or any other
authority empowered by the President in that behalf may place a government
servant under suspension :(a) where a disciplinary proceeding against him is
contemplated or is pending, or (b) where a case against him in respect of any
criminal offence is under investigation or trial. Mr. Sharma does not say that
ordinarily any cases occur where a government servant is visited with a penalty
of dismissal, removal or compulsory retirement, in a departmental proceeding,
without there being a previous order of suspension under the provisions of r.
12(1) and we do not think any such case ordinarily occurs. Consequently, the
effect of r. 12(3) will be the same on a government servant a penalty of
dismissal, removal or compulsory retirement on whom is set aside in appeal by
the departmental authority as the effect of r. 12(4) on a government servant a
similar penalty on whom is set aside by a decision of a court of law. The
contention that r. 12(4) contravenes Art. 14 of the Constitution must therefore
be rejected.
As we find that all the above attacks on the
validity of r. 12(4) fail, the further attack on the Rule on the basis of Art.
31(1) of the Constitution also necessarily fails. For, whatever deprivation of
property may result from r. 12(4) would be by authority of law-the law being r.
12(4).
We have therefore come to the conclusion that
the High Court. is right in holding that r. 12(4) is 242 valid and
consequently, in rejecting the appellant's revisional application.
The appeal is dismissed. But, in view of the
circumstances of the case we make no order as to costs. Though the appellant
has failed in this appeal which was brought by him as a pauper
Back
