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PETITIONER: MAHENDER SINGH

       Vs.

RESPONDENT: UNION OF INDIA AND ANR

DATE OF JUDGMENT02/08/1991

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAMASWAMI, V. (J) II YOGESHWAR DAYAL (J)

CITATION:  1991 SCR  (3) 330        1991 SCC  Supl.  (2) 127  JT 1991 (3)   462        1991 SCALE  (2)292

ACT:     Service  Law:  Central Civil  Services  (Classification, Control   and   Appeal)  Rules,  1965    Rule   10(4)--Scope of--Services of employee terminated by a simple  termination order under Rule 5(1) of the CCS (Temporary Service)  Rules, 1965---Termination  order set aside by  Tribunal--Retrospec- tive suspension from the date of original order of  termina- tion--Whether justified.

HEADNOTE:     The  appellant,  a cash clerk in  the  establishment  of Delhi  Milk Scheme, was placed under suspension  under  Rule 10(2) of the Central Civil Service (Classification,  Control and Appeal) Rules, 1965, pending investigation into a crimi- nal  case, connected with the forgery of a cheque, in  which he  was  arrayed as an accused. Subsequently,  his  services were  terminated under Rule 5(1) of the Central Civil  Serv- ices (Temporary Service) Rules, 1965. Though he was  acquit- ted  in the criminal case, he was not re-instated.  However, the  Central Administrative Tribunal set aside the  termina- tion order and directed that the appellant would continue to be under suspension from the original date of termination of service, and that it would be open to the competent authori- ty,  to revoke his suspension and re-instate him in  service or continue him under suspension, if it decided to  initiate disciplinary proceedings against him.     Pursuant to the decision of the Tribunal, the Management passed  an order under Rule 10(4) of the Rules  placing  the appellant  under suspension from the date of original  order of  termination and also directed that there should be  fur- ther enquiry against the appellant.     Allowing  the  appeal  preferred by  the  appellant  and modifying the Tribunal’s order,     HELD: 1.1 There are three requirements for the  applica- tion of Rule 10(4) of the Central Civil Services  (Classifi- cation,  Control and Appeal) Rules, 1965. These are (i)  the Government  servant  is dismissed, removed  or  compulsorily retired as a measure of penalty; (ii) the said  331 penalty  is  set  aside or declared or rendered  void  by  a decision  of  a  Court of Law; and  (iii)  the  disciplinary

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authority  decides  to hold a further  inquiry  against  the Government servant on the allegations on which the  original order of penalty was imposed. [334F-G]     1.2 In the instant case, the original order of  termina- tion  was not passed against the appellant as a  measure  of punishment.  It was a ’simpliciter termination’  under  Rule 5(1) of the CCS (Temporary Service) Rules, 1965. The  Tribu- nal  has set aside that order on the ground that it  amounts to  punishment  and the order of punishment could  not  have been  made without holding an inquiry. But that is  not  the same thing to state that the Management made an order termi- nating  the services by way of penalty. It treated the  said order  as a simpliciter discharge. Hence Rule 10(4)  has  no application.  Besides, there was no question of the  Manage- ment deciding to hold a further inquiry, since there was  no earlier inquiry against the appellant and it would be misno- mer to call it a further enquiry as contemplated under  Rule 10(4). [335B-C]     1.3 Thus, the power to place a delinquent officer  under suspension from the date of the original order of dismissal, removal  or  compulsory  retirement from  service  would  be available  provided  the original order was made by  way  of penalty and that order has been set aside by a Court of Law. Since  there  was no inquiry leading to the removal  of  the appellant in the first instance, the decision to hold  fresh inquiry  does  not  attract Rule  10(4).  The  retrospective suspension  of the appellant is, therefore, unjustified  and without  authority of law. However the order  of  suspension would  operate  prospectively  and the  appellant  would  be entitled to re-instatement with all back wages till that day since  the original order of termination has been set  aside by the Tribunal. The Tribunal’s order is modified according- ly. [335D-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1821  of 1991.     From  the  Judgment and Order dated 17 4.  1990  of  the Central Administrative Tribunal, Delhi in R.A. No. 117/88 in T.A. No. 351 of 1986.       O.P. Saxena and Mukul Gupta for the Appellant.      J.D.  Jain, Kailash Vasudev, Ms. Sushma Suri  and  S.N. Terdal for the Respondents. 332 The Judgment of the Court was delivered by     K. JAGANNATHA SHETTY, J. This appeal is from an order of the Central Administrative Tribunal, New Delhi and  concerns with  the scope of Rule 10(4) of the Central  Civil  Service (CCA) Rules, 1965 (’the Rules’)     The facts leading to the appeal are these: The appellant was a cash clerk in the establishment of Delhi Milk  Scheme, New  Delhi. There was some criminal case connected with  the forgery of a cheque in which the appellant was arrayed as an accused. Pending investigation of the criminal case, he  was placed under suspension. The order of suspension was made on March 27, 1976 under Rule 10(2) of the Rules. On January 10, 1976  his  services were terminated under Rule 5(1)  of  the Central  Civil Services (Temporary Service) Rules, 1965.  On March  7, 1980, the appellant was acquitted in the  criminal case. On January 5, 1981 the appellant filed a civil suit in the  District  Court, New Delhi, challenging  the  order  of termination of his services. The suit was transferred to the Central  Administrative Tribunal for disposal. The  Tribunal

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has,  by its judgment dated September 5, 1988 set aside  the termination order with the following conditions:               "(i)  The impugned order of termination  dated               10.1.1978 is quashed. Consequently, status quo               ante  as  in regard to applicant  being  under               suspension will continue from 10.1.1978.               (ii) It will be open to the competent authori-               ty to take a final decision on the continuance               or otherwise of the suspension in the light of               the  judgment  of  Chief  Judicial  Magistrate               dated 7.3.80 in case No. 57/2. It will be open               to the competent authority to revoke the order               of suspension and reinstate the plaintiff into               service as cash clerk. In that event, the  pay               and  allowances  of the plaintiff  during  the               period  of  his actual suspension  from  27.3.               1976 to 10.1.78 and deemed suspension thereaf-               ter shall be regulated in accordance with  the               provisions  of  F.R. 54-B.  Necessary  adjust-               ments, if any, should be made or in regard  to               the subsistence allowance already paid to him.               The defendants shall also consider and  decide               whether  the period of actual and deemed  sus-               pension shall be treated as a period spent  on               duty or not.                      333               (iii)  It will also be open to  the  competent               authority,  if  so advised,  to  continue  the               plaintiff  on suspension if it is  decided  to               initiate disciplinary proceedings against  him               based on his conduct which led to his prosecu-               tion before the criminal court. The  discipli-               nary  proceedings if initiated should be  com-               pleted within a period of six months from  the               date of communication of this order.               (iv) The competent authority shall take appro-               priate  decision  as regards  (ii)  and  (iii)               above  within a period of two months from  the               date of communication of this order."     Pursuant to the decision of the Tribunal management made an  order  dated November 10, 1988 under Rule 10(4)  of  the Rules placing the petitioner under suspension w.e.f. January 10,  1978. The appellant shall be deemed to have  been  sus- pended  from the date of the original order of  termination. The  management also directed that there should  be  further enquiry’ against the appellant. The relevant portion of  the order dated November 10, 1988 reads:                "AND whereas the undersigned on a  considera-               tion  of  the circumstances of the  case,  has               also decided that a further enquiry should  be               held  under the provision of  CCS(CCA)  Rules,               1965 against the said Shri Mohinder Singh, Ex.               Cash Clerk on the allegation which led to  his               termination of service.                NOW THEREFORE the undersigned hereby:-               (i)  set  aside the order  of  termination  of               services  of  Shri Mohinder  Singh,  Ex.  Cash               Clerk               (ii)  directs that further enquiry  should  be               held  under the provisions of CCS(CCA)  Rules,               1965 against Shri Mohinder Singh on the  alle-               gations  of  misappropriation of  Govt.  Money               which led to the termination of service.               (iii)  directs  that the  said  Shri  Mohinder               Singh,  Ex. Cash Clerk shall under sub-rule  4

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             of  Rule  10 of the CCS(CCA)  Rules,  1965  be               deemed  to have been placed  under  suspension               w.e.f. 10.1. 1978 and shall continue to remain               under suspension until further orders.                                    (Baldev Chand)                             Disciplinary Authority                             Dy. General Manager (A)" 334     After  holding the enquiry the appellant was again  dis- missed  from  service. That order was made  on  December  1, 1989.  It is said that the dismissal has been challenged  by the appellant before the Tribunal.     From  the above narration of facts it will be seen  that the  Tribunal while setting aside the termination order  has directed  that  the appellant shall continue  in  suspension from January 10, 1978. The management while deciding to hold further  enquiry has also directed that the appellant  shall be deemed to have been placed under suspension w.e.f.  Janu- ary  10,  1978. The management made this  order  under  Rule 10(4) which reads as follows:                "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 disci-               plinary  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:                        Provided that no such further inquiry               shall be ordered unless it is intended to meet               a  situation  where the Court  has  passed  an               order  purely  on  technical  grounds  without               going into the merits of the case."     There are three requirements for the application of Rule 10(4);  (i) The Government servant is dismissed, removed  or compulsorily  retired  as  a measure of  penalty;  (ii)  the penalty  of dismissal, removal or compulsory  retirement  is set  aside or declared or rendered void by a decision  of  a Court  of Law; (iii) The disciplinary authority  decides  to hold a further inquiry against the Government servant on the allegations  on  which  the original order  of  penalty  was imposed. If these three requirements are satisfied then  the Government  servant  ,shall be deemed to  have  been  placed under  suspension by the appointing authority from the  date of  original order of penalty of dismissal, removal or  com- pulsory  retirements and he shall continue to  remain  under suspension until further orders.       335     The  order of the Tribunal and the management as to  the retrospective  suspension  of the appellant cannot  be  sus- tained under Rule 10(4) of the Rules. It may be relevant  to remember  that  the original order of  termination  was  not passed against the appellant as a measure of punishment.  It was  a ’simpliciter termination’ of the appellants’  service under  Rule 5(1) of the CCS (Temporary Service) Rules  1965. The Tribunal has set aside that order on the ground that  it amounts to punishment and the order of punishment could  not

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have been made without holding an inquiry against the appel- lant.  But  that  is not the same thing to  state  that  the management  made  an order terminating the services  of  the appellant by way of penalty. The management treated the said order as a simpliciter discharge. Rule 10(4) therefore,  has no application to the case of the appellant.     Secondly,  it  would be misnomer to call  it  a  further inquiry  as  contemplated  under Rule 10(4).  There  was  no question  of the management deciding to hold a  further  in- quiry since there was no earlier inquiry against the  appel- lant.     The  power to place delinquent officer under  suspension from the date of the original order of dismissal, removal or compulsory  retirement from service would be available  pro- vided if the original order of dismissal, removal or compul- sory retirement from service was made by way of penalty  and that order has been set aside by a Court of law. Since there was  no inquiry leading to the removal of the  appellant  in the first instance, the decision to hold fresh inquiry  does not attract Rule 10(4). The retrospective suspension of  the appellant is therefore, unjustified and without authority of law.     However,  it may be stated that the order of  suspension dated November 10, 1988 would operate prospectively and  the appellant  would be entitled to reinstatement with all  back wages till that day since the original order of  termination has been set aside by the Tribunal.     The appeal is accordingly allowed modifying the impugned order. In the circumstances of the case, however, we make no order as to costs. N.P.V.                                    Appeal allowed. 336