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PETITIONER: KHEM CHAND

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 25/09/1962

BENCH: GUPTA, K.C. DAS BENCH: 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  Court- Fresh 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Appeal) Rules, 1957, the  trial court ordered that the proceedings shall remain stayed  till the  order  of suspension was revoked or  set  aside.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.

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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  reaso- nable 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.

JUDGMENT: 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

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             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.

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The  defendants in this suit are: 1. The Union of India;  2. The State of Delhi; and 3. The Collector and Registrar,  Co- operative  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,  1958- stating   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  (Classi- fication, 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.

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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

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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.  No  body  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.

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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 com- pulsory  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

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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

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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, we make no order against him to pay the  court- fee  which  would have been paid by him if he had  not  been permitted to appeal as a pauper. Appeal dismissed.