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PETITIONER: DEVENDRA PRATAP NARAIN RAI SHARMA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 03/11/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1962 AIR 1334            1962 SCR  Supl. (1) 315  CITATOR INFO :  RF         1963 SC 687  (17)  R          1965 SC1153  (26)  E&R        1974 SC 130  (20)  RF         1980 SC1773  (13)

ACT:      Public    Servant-Dismissal-Re-instated    by decree  of   Civil  Court-Merits   of  charge  not considered-Whether  fresh   enquiry  on  the  same charges competent-Salary-Effect  of order of Civil Court declaring  dismissal  invalid-Uttar  Pradesh Government Fundamental Rules as amended in 1953 r. 54,-Code of Civil Procedure, 1908 (Act V of 1908), O. 2.  r. 2-Constitution  of India, Arts. 226, 310 and 311.

HEADNOTE:      The order  of dismissal against the appellant was set  aside by  the High  Court, holding  inter alia, that reasonable opportunity was set afforded to  the  appellant  before  imposing  the  penalty dismissed and  the appellant  must  be  deemed  to continue in  service. Thereafter the appellant was reinstated, but  he was awarded salary at the rate of Rs. 76-11-0 till the order of dismissal, and at a token rate of Rs. 1/- for the period between the order  of   dismissal   and   reinstatement.   The appellant was  again  suspended  and  enquiry  was directed against  him in respect of dereliction of duty for  which he had already been once dismissed and re-instated.      The appellant moved the High Court for a writ to quash  the order directing the said enquiry. He claimed that  Government had  no power  to re-open the enquiry  concluded by the decision of the High Court and  that the  State was  bound to  pay  him salary  with   increments  for   the   period   of suspension as  if  he  was  on  duty  during  that period. The  High Court, inter alia, held that the second  enquiry  against  the  appellant  was  not

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barred by virtue of the previous decision, but the fixation of  token salary  amounted to  punishment which could  not be  imposed without following the procedure  laid   down  in   Art.   311   of   the Constitution, and  there was  no justification for not granting  him full  salary. The appellant came up in appeal to the Supreme Court by certificate. ^      Held, that the State Government was competent in the  circumstances, to  direct a  fresh enquiry against the  public  servant  for  dereliction  of duty, and to suspend him.      Where the  order of  dismissal  of  a  public servant was  declared invalid  by the  decree of a Civil Court the effect was that the public servant was never  to be  deemed  to  have  been  lawfully dismissed  from   service,  and   the   order   of reinstatement was  superfluous. It was not open to the authority 316 to deprive  the public servant of the remuneration which he  would have  earned has he been permitted to work.      Held, further,  that r. 54 of the Fundamental Rules of  the Uttar Pradesh Government enables the State Government  of  fix  the  pay  of  a  public servant,  when   dismissed  is   set  aside  in  a departmental  appeal,   but  that   rule  has   no application to  cases in  which the dismissal of a public servant  is declared  invalid by the decree of a  Civil  Court  and  he  is  consequently  re- instated.      Dwarkachand v.  State  of  Rajasthan,  I.L.R. (1957) Raj  1049, Nanak  Chandra Bairagi v. Supdt. of Police,  Sibsagar, I.L.R.  (1955) Assam 191 and Mohan  Singh   Choudhri  v.  Divisional  Personnel Officer,  Northern   Railway,  Ferozepore   Cantt. I.L.R. (1957) Publ. 1883, not applicable.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal      No. 622 of 1960.      Appeal from  the  judgment  and  order  dated February 12,  1960, of  the Allahabad  High  Court (Lucknow Bench)  at Lucknow  in Writ  Petition No. 228 of 1959.      1. M.  Lall, E. Udyarathnam and S. S. Shukla, for the appellant.      C. B.  Agrawalla  and  C.  P.  Lal,  for  the respondents.      1961. November  3. The  Judgment of the Court was delivered by      SHAH,  J.-In   1951  the  appellant  Devendra Pratap  Narain   Rai  Sharma   held  the  post  of "Inspector Qanungo"  in the  Revenue Department of the State  of Uttar  Pradesh and  was selected for the post of Tehsildar on probation. By order dated April 21,  1952, the Collector of Jhansi suspended the appellant and commenced an enquiry against him on certain charges of misdemeanour. In June, 1952, the Collector  recommended  to  the  Land  Reforms Commission that  the appellant  be reverted to the post of  "Naib Tehsildar",  but  the  Commissioner

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recommended  to  the  State  Government  that  the applicant be dismissed from service. 317 The State  Government accepted  the recommendation of the  Commissioner and  dismissed the  appellant from service,  by order  dated September 16, 1953. The appellant  then commenced  an action (Suit No. 163 of  1954) in  the Court  of the  Civil  Judge, Lucknow, challenging  the legality of the order of dismissal principally  on the  ground that  he was not afforded  the opportunity of defending himself and of  showing cause  against the action proposed to be taken against him. The Civil Judge dismissed the suit  but the decree of the Judge was reversed by  the   High  Court   of  Civil   Judicature  at Allahabad. The  High Court  held  that  reasonable opportunity was  not  afforded  to  the  appellant either before  the  recommendation  was  made  for imposing penalty or before imposing punishment and therefore  the   appellant  was  deprived  of  the protection of  Art. 311  of the  Constitution. The High Court,  accordingly, allowed  the appeal, set aside the  decree of the Civil Judge and granted a declaration  that   the  order   passed   by   the Government of  Uttar Pradesh  dated September  16, 1953, purporting  to  dismiss  the  appellant  was void, inoperative  and illegal  and the  appellant must be deemed to continue in service.      The appellant  was then  by the Government of Uttar Pradesh  Notification dated  March 30, 1959, reinstated to  his original  post of Tehsildar. He was posted at Tehsil Puranpur in District Pilibhit and took  charge of  his office on April 28, 1959. The  appellant  then  applied  to  the  Accountant General of Uttar Pradesh for payment of arrears of salary and  allowances due  to him. The Accountant General, by  letter dated  May 18.  1959, informed the appellant  that he  was "entitled  to draw pay and allowances  with effect  from April  28, 1959" and  that  as  regards  the  arrears  of  pay  and allowances for  the period between April 21, 1952, and April 28, 1959, reference had been made to the State Government about the terms and 318 conditions of  the appellant’s  reinstatement  and that  action   would  be   taken  on   receipt  of instructions in that behalf.      The appellant  was again  suspended by  order dated July  11,  1959,  issued  by  the  Board  of Revenue and  was directed  to hand  over charge to the Naib Tehsildar of Tehsil Puranpur. On July 24, 1959, the Board of Revenue ordered that the salary of the  appellant for the period between April 21, 1952, and  the date  of taking  over charge of his duties as Tehsildar on reinstatement will be fixed as follows:-           (1) The pay from April 21, 1952 till the      date of  orders  of  his  dismissal  will  be      limited to  the subsistence  allowance of Rs.      76/11/-p.m. already drawn by him.           (2) The pay for the period from the date      following  the  date  of  the  order  of  his      dismissal till  the date  of his  taking over      charge  of   his  duties   as  Tahsildar   on      reinstatement will be fixed at Rs. 1/-p.m. as

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    token pay. The appellant was also informed that the period of his dismissal, i.e. April 21, 1952, to the date of his taking  over charge of his office as Tehsildar on reinstatement will be treated as "on duty", and will count towards pension.      The appellant  applied on August 25, 1959, to the High  Court at  Allahabad by  a petition under Art. 226  of the  constitution praying  for a writ quashing the  order  directing  enquiry  into  the allegations regarding  his  work  and  conduct  as Tehsildar at  Garautha, District  Jhansi and for a direction setting  aside the  order of  suspension dated  July   11,  1959,   and  for   a  direction permitting the  appellant to  draw his full salary and allowances  with all  increments amounting  to Rs. 27,238/10/- and for an order to the Accountant General to  issue pay  slips at  the rate  of  Rs. 325/-p.m. from the date 319 of taking  over charge  with  dearness  and  house allowances  with   further  increments,   if  any, falling due in the scale of Rs. 200-10-250-15-400, and for  directions to  the respondents  to  issue orders for  confirmation  of  the  appellant  with effect from  April 19, 1953. The appellant claimed that the  Government of Uttar Pradesh had no power to reopen the enquiry concluded by the decision of the High Court of Allahabad and that the State was bound  to  pay  him  salary  with  increments  and allowances for  the period  of suspension as if he was on  duty during  that period.  He also claimed that he  must be  deemed to have been confirmed in the post  of a  Tehsildar and, therefore, entitled to salary in the grade of Tehsildar.      The High  Court held  that the second enquiry against the  appellant directed  by the  Board  of Revenue was  not barred  by virtue of the previous decision and  that  the  appellant  could  not  be deemed to  have been  confirmed with  effect  from April, 1953.  The High  Court  further  held  that because the  appellant had  not claimed the salary for the  period April  21, 1959,  to November  24, 1954, in  the Civil Suit filed by him he should be deemed to  have  relinquished  that  part  of  his claim.  Regarding   the  salary   for  the  period November 24,  1954, to  April 28,  1959, the  High Court held  that fixation  of Rs. 1/- by the Board of  Revenue  as  token  salary  of  the  appellant amounted to  punishment which the Government could not impose  without following  the procedure  laid down by  Art. 311 of the Constitution. In the view of  the  High  Court  the  appellant  having  been reinstated, there  was no  justification  for  not granting him  full salary  till July 14, 1959, the date  till  which  he  continued  to  function  as Tehsildar after  reinstatement. But the High Court observed, "A  writ of  mandamus can, however, only direct  the   opposite  parties   to  proceed   in accordance with  law. We,  therefore, direct  that the order  contained in annexure 11 be quashed and the State Government 320 directed to  reconsider the matter in the light of the relevant  rule  after  giving  notice  to  and

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hearing the  petitioner." The  High Court  further held that  the appellant  was not  entitled to any higher salary  nor was there anything to show that he had  earned any annual increment or had crossed the efficiency bar.      Against the  order passed  by the  High Court partially allowing  the petition and directing the State  Government   to   reconsider   the   matter regarding  the  pay  and  allowances  due  to  the appellant for  the period  November 24,  1954,  to April 28,  1959, this  appeal has  been  preferred with certificate of fitness granted under Articles 132 (1) and 133 (1)(b) of the Constitution.      In  our   view,  the   State  Government  was competent to  direct a  fresh enquiry  against the appellant for  dereliction of  duty even  if  such dereliction was  in the  period relating  to which proceedings  were   previously  started   and  the appellant had  been dismissed  from  service.  The appellant  was  not  in  the  earlier  proceedings exonerated by  the High  Court in  respect of  the alleged misconduct  charged against  him, and,  in any  event,  charge  against  him  in  the  second enquiry was different from the charge in the first enquiry.  The   High  Court   had  in   the   suit challenging the  order passed in the first enquiry expressly observed  that on  the  question  as  to misconduct and  the  punishment,  no  opinion  was expressed. The  suit filed  by the  appellant  was decreed only  on the  ground that  he had not been afforded a reasonable opportunity of showing cause against  the  charge  against  him  and  also  the punishment decided to be imposed upon him.      Authorities on  which reliance  was placed by counsel for the appellants, namely, Dwarkachand v. State of Rajasthan, Nanak Chandra Bairagi v. 321 Supdt.  of   police,  Sibsagar   and  Mohan  Singh Chaudhari v. Divisional Personal officer, Northern Railway, Ferozepore Cantt, do not support the plea that the  second enquiry  is, in the circumstances of the case, barred. An adjudication on the merits by a  quasi-Judicial body  may or  may  not  debar commencement of  another enquiry in respect of the same subject  matter. But  in  this  case  we  are concerned with  the scope of the High court order. The binding  effect of a judgment depends not upon any  technical   consideration  of  form,  but  of substance. The  High Court  in the appeal filed by the appellant  in suit  No. 163  of 1954  did  not exonerate the appellant from the charges. The High Court decreed  the suit  on the  ground  that  the procedure for  imposing the penalty was irregular, and such  a decision cannot prevent the State from commencing another  enquiry in respect of the same subject matter consistently with the provisions of Arts. 310  and 311.  In Dwarkachand’s  case, in  a previous enquiry  the public servant concerned had been exonerated;  and in  Mohan Singh  Chaudhari’s case a  decision by  the,  civil  court  declaring illegal an order dismissing a public servant by an officer not  authorised in  that behalf  was  held binding on  all the  parties in  proceedings under Art        226 till such decision was set aside in accordance with  law. In  Kanak Chandra’s  case it

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was held  that an  order in  exercise of powers of revision  by  the  Governor  under  the  authority reserved to  him setting aside on order of censure passed by  a subordinate  authority and dismissing the public  servant concerned from service did not amount to  a second  departmental  enquiry.  These cases do  not lend support to the proposition that after an  order passed  in  a  enquiry  against  a public servant imposing a penalty is quashed, by a civil  court,   no  further   proceeding  can   be commenced against  him even  if in  the proceeding can be  commenced  against  him  even  if  in  the proceeding in which the order quashing 322 the enquiry  was passed,  the merits of the charge against the  public servant   concerned were never investigated.      If the  State  Government  was  competent  to order a  fresh enquiry,  we see  no reason  why it would be  incompetent to  direct suspension of the appellant during the pendency of the enquiry.      The  High   Court   in   dealing   with   the appellant’s claim  to salary  during the period of his  suspension   pending  the   earlier   enquiry observed that  there was no justification for "not granting the  appellant  his  full  pay"  for  the period after the date of the suit. But the counsel for the State of Uttar Pradesh asserted that it is open to  the State, notwithstanding the direction, to award  as remuneration to the appellant for the period for  which  he  was  under  suspension  any amount which on a reconsideration of the matter in the light  of the relevant rules and after hearing the appellant  the State Government considers just and proper.  This power,  counsel contends, arises by virtue  of Rule  54 of  the  Fundamental  Rules framed by  the State  of Uttar  Pradesh under  the authority  conferred   under  Art.   309  of   the Constitution. Counsel  says that it was because of this rule  that the  High Court directed the State Government to  reconsider the  matter in the light of the relevant rules.      In  our   view,  this  contention  is  wholly misconceived. Rule  54, as amended in 1953, stands as follows:-           "54. (1)  When a  Government servant who      has been  dismissed, removed  or suspended is      reinstated, the  authority competent to order      the reinstatement  shall consider  and make a      specific order-                (a)  regarding    the    pay    and           allowances to  be paid to the Government           servant for  the period  of his  absence           from duty and 323                (b) whether  or not the said period           shall be  treated as  a period  spent on           duty.           (2) Where such competent authority holds      that the  Government servant  has been  fully      exonerated or,  in the  case  of  suspension,      that   it   was   wholly   unjustified,   the      Government servant  shall be  given the  full      pay to which he would have been entitled, had      he not  been dismissed, removed or suspended,

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    as  the   case  may   be  together  with  any      allowances of  which he  was in receipt prior      to his dismissal, removal or suspension.           (3) In  other cases,  the Govt.  servant      shall be  given such  proportion of  such pay      and allowances  as such  competent  authority      may prescribe.           Provided that  the payment of allowances      under clauses (2) and (3) shall be subject to      all  other   conditions  under   which   such      allowances are admissible.           (4) In  a case  falling under clauses(2)      the period  of absence  from  duty  shall  be      treated as  the period  spent on duty for all      purposes.           (5) In  a case  falling under clause (3)      the period  of absence from duty shall not be      treated as  period spent  on duty unless such      competent authority specifically directs that      it shall  be so  treated  for  any  specified      purposes. This rule  has no  application to  cases like  the present in which the dismissal of a public servant is declared  invalid by  a civil  court and  he is reinstated. This  rule,  undoubtedly  enables  the State Government  to  fix  the  pay  of  a  public servant  whose   dismissal  is   set  aside  in  a departmental appeal. But in this case the order of dismissal was  declared invalid  in a  civil suit. The effect of the decree of the 324 civil suit  was that the appellant was never to be deemed  to   have  been  lawfully  dismissed  from service  and   the  order   of  reinstatement  was superfluous. The effect of the adjudication of the civil court  is to  declare that the appellant had been wrongfully  prevented from  attending to  his duties as a public servant. It would not in such a contingency be  open to  the authority  to deprive the public  servant of  the remuneration  which he would have earned had he been permitted to work.      The  High   Court  has   disallowed  to   the appellant his  salary prior  to the  date  of  the suit. The  bar of  O.2 r. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply  to a  petition for  a high  prerogative writ under  Art. 226  of the Constitution, but the High Court  having disallowed  the  claim  of  the appellant for  salary prior  to the  date  of  the suit, we  do not  think that we would be justified in interfering with the exercise of its discretion by the High Court.      The order  of the  High  Court  therefore  is confirmed.   The   State   has   made   a   wholly unjustifiable claim  to fix the salary of a public servant wrongfully  prevented from  performing his duties, even after he is reinstated in consequence of a  decision of  the civil  court declaring  his dismissal as  wrongful. As, however, the principal relief claimed by the appellant is not granted, we think that  the proper order is that there will be no order as to costs throughout. 325

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