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PETITIONER: R.   JEEVARATNAM

       Vs.

RESPONDENT: THE STATE OF MADRAS

DATE OF JUDGMENT: 13/10/1965

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1966 AIR  951            1966 SCR  (2) 404  CITATOR INFO :  R          1974 SC 136  (7)

ACT:  Disciplinary Proceedings-Inquiry-Same counsel  representing appellant  as  some others-No conflict  of  interest-Whether reasonable opportunity to defend given. Dismissal Order-With retrospective effect-Effect of.

HEADNOTE: Disciplinary proceedings were started against the appellant, a Deputy Tahsildar, and three of his subordinates on  charge of accepting illegal gratification.  On May 20, 1949, he was placed  under  suspension and relieved of his  duties.   The Disciplinary Proceedings Tribunal directed the consolidation and  common hearing of the enquiries against the,  appellant and  the other three civil servants.  Although the  Tribunal refused   an  earlier  application  of  the  appellant   for permission to engage counsel, at the hearing of the  enquiry on  being  told that he could engage the  same  counsel  who appeared  for the other three civil servants, the  appellant engaged  that counsel and was represented by him  throughout the  enquiry.  The, Tribunal declined to grant a  prayer  of the  appellant on June 13, 1949, to grant an adjournment  of the hearing and the enquiry was held on June 13, 14 and  15. Upon the Tribunal recommending the appellants dismissal  and after  He had been served with a show cause notice  and  had replied  thereto,  on  October  17,  1950,  the   Government directed, that he be dismissed from service with effect from May 20, 1949;. The   appellant  then  instituted  a  suit  and   sought   a declaration  that  the,  order dated October  17,  1950  was illegal  and void.  The trial court dismissed the  suit  and this decision was affirmed on appeal by the High. court. It was contended on behalf of the appellant that in view  of the, refusal of the appellant’s prayer to engage counsel  of his own choice and of his prayer for adjournment on June 13, he  had  been  denied a  reasonable  opportunity  to  defend himself against the charges; and furthermore, that the order of dismissal dated October 17, 1950 having been passed  with retrospective effect from the date of suspension was illegal and in-operative.

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HELD  :  (i)  The  appellant had  been  given  a  reasonable opportunity to defend himself against the charges. [206 D] There was no conflict of interests between the appellant and the  other three civil servants; there was nothing  to  show that the, counsel representing the other three was unable to conduct the appellant’s defence properly. [206 C] (ii) The  order of dismissal as from October 17,  1950,  was valid and effective. [207 A] An  order  of  dismissal with retrospective  effect  is,  in substance,  an  order of dismissal as from the date  of  the order-  with the superadded direction that the order  should operate as from an; anterior date.  The                             205 two parts of the order are clearly severable.  Assuming that the second part of the order is invalid, there is no  reason why  the.  first part of the order should not be  given  the fullest effect. [207 G-H; 208 Al Hemanta  Kumar  v.  S. N. Mukherjee,  (1953)  58  C.W.N.  1- referred to.  Abdul Hamid v. The District School Board,  24- Parganas (1957) 61 C.W.N. 880: Sudhir Ranjan Haldar v. State of W. Bengal A.I.R. 1961 Cal. 626, 630 : disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 232 of 1964. Appeal  from the Judgment and order dated the 23rd  October, 1960 of the Madras High Court in Appeal No. 237 of 1958. R.   Thiagarajan and R. Ganapathy Iyer, for the appellant. A.   Ranganadham   Chetty   and  A.  V.  Rangam,   for   the respondent. The Judgment of the Court was delivered by Bachawat J. The appellant held the post of Deputy  Tahsildar in the Revenue Department of the Government of Madras.  Dis- ciplinary  proceedings  were started against him  on  twelve charges  of acceptance of illegal gratification  during  his office  as Special Loans Deputy Tahsildar, Cuddalore,  South Ascot  District.   Disciplinary  proceedings  were   started against  three of his subordinates also on similar  charges. On  May,  20,  1949,  he was  placed  under  suspension  and relieved  of  his  duties.   The  Disciplinary   Proceedings Tribunal  directed the consolidation and common  hearing  of the  enquiries  against the appellant and  the  other  three civil  servants.   The  appellant asked  for  permission  to engage a counsel at the enquiry.  By an order dated May  31, 1949,  the  Tribunal refused to give  the  permission.   The enquiry was held on June 13, 14 and 15.  At the hearing, the other three civil servants were represented by counsel, Sri. Kalyanasundaram.   On June 13, the appellant prayed  for  an adjournment.  The Tribunal declined to grant the adjournment and told the appellant that he was at liberty to engage Sri. Kalyanasundaram  as  his counsel.  The  appellant  thereupon availed  himself of the services of  Sri.   Kalyanasundaram, and was represented by him throughout the enquiry.  On  June 30, the Tribunal submitted a report stating that the charges against  the  appellant  were proved  and  recommending  his dismissal.  On September 16, the Government issued a  notice to  him  asking  him  to show cause why  he  should  not  be dismissed from service.  On November 12, 1949, he  submitted his  written  representation.   On  October  17,  1950,  the Government directed 206 that  he be dismissed from service with effect from May  20, 1949.   The  appellant  instituted the  suit  asking  for  a declaration that the order dated October 17, 1950 dismissing

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him  from  service  is illegal and void.   The  trial  Court dismissed the suit, and, this decree was affirmed on  appeal by  the High Court of Madras.  The appellant now appeals  to this Court by special leave. Counsel  for  the appellant submitted that in  view  of  the refusal of the appeal’s prayer for engaging a counsel of his own choice and his prayer for adjournment of the hearing  on June  13, 1949, the appellant had been denied  a  reasonable opportunity  to defend himself against the charges.  We  are not  inclined  to  accept this  submission.   There  was  no conflict of interests between him and the other three  civil servants.   Counsel  representing  the  other  three   civil servants was allowed by the Tribunal also to represent  him. The enquiry continued for three days.  It is not proved that counsel was unable to conduct the defence properly.  Even in his  written  representation dated November  12,  1949,  the appellant  did  not  allege that he was  prejudiced  in  his defence.  We are satisfied that the appellant had reasonable opportunity to defend himself against the charges. Counsel  for the appellant next contended that the order  of dismissal dated October 17, 1950 having been passed with re- trospective effect is illegal and inoperative.  Counsel  for the  respondent  submitted (1) the order of  dismissal  with retrospective  effect as from the date of the suspension  is valid  in its entirety, and (2) in any event, the  order  is valid  and  effective as from October 17,  1950.   The  High Court accepted the first contention, and declined to express any  opinion on the second contention.  In our opinion,  the second  contention of the respondent is sound, ,and in  this view of the matter, we decline to express any opinion on the first  contention.  Counsel for the appellant conceded  that if  the  respondent’s  second contention  is  accepted,  the appeal must fail. The order dated October 17, 1950 directed that the appellant be  dismissed from service with effect from the date of  his suspension,  that  is  to  say,  from  May  20,  1949.    In substance,  this order directed that ( 1 ) the appellant  be dismissed, and (2) the dismissal do operate  retrospectively as  from  May 20, 1949.  The two parts  ,of  this  composite order are separable.  The first part of the order  ,operates as  a dismissal of the appellant as from October  17,  1950. The  invalidity  of the second part of the  order,  assuming this  part to be invalid, does not affect the first part  of the order.  The order                             207 of  dismissal  as  from  October  17,  1950  is  valid   and effective.   The appellant has been lawfully dismissed,  and he is not entitled to claim that he is still in service. We  may  now notice the cases relied on by counsel  for  the appellant.   In  Hemanta Kumar v. S.  N.  Mukherjee(1),  the Calcutta High Court had occasion to consider an order  dated April  29,  1952 by which a civil servant  had  been  placed under suspension with retrospective effect from January  16, 1951.   While holding that the order of suspension  for  the period,  January 16, 1951 up to April 28, 1952  was  invalid and  should  be quashed, the Court held that  the  order  of suspension  was  valid and effective as and from  April  29, 1952  and this part of the order should be upheld.  As  a  a matter of fact, the validity of the suspension as from April 29, 1952 was not even questioned by counsel for the parties. Far from supporting the appellant, this decision is  against him on the point under consideration.  In Abdul Hamid v. The District  School  Board, 24-Parganas(2), the  Calcutta  High Court had occasion to consider an order dated April 18, 1952 discharging  a teacher employed by a District  School  Board

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from  service with effect from July 15, 195 1, the  date  on which  he  had been arrested in connection  with  a  pending criminal case against him.  While holding that the dismissal from the period from July 15. 1951 up to April 17, 1952  was invalid,  the  High  Court  also  held  that  the  order  of dismissal  was entirely bad and was not effective even  from April 18, 1952.  The High Court observed:               "It appears to me that when the real intention               of  the Board was to discharge the  petitioner               with  effect  from the date when  he  was  put               under arrest it is not within the jurisdiction               of the Court to substitute a different  inten-               tion and maintain the order of discharge in  a               modified  form.  The order must stand or  fall               In  toto.   In  this view  of  the  matter  it               appears  to me that the order of discharge  as               passed by the Board cannot stand." Our  attention  is drawn to similar observations  in  Sudhir Ranjan Haldar v. State of West Bengal(").  With respect,  we are  unable to agree with this line of reasoning.  An  order of dismissal with retrospective effect is, in substance,  an order  of dismissal as from the date of the order  with  the superadded   direction   that  the  order   should   operate retrospectively as from an anterior date.  The two parts  of the order are clearly severable.  Assuming that the second (1) (1953) 58 C.W.N. 1. (2) (1957) 61 C.W.N. 880. (3)  A.I.R. 1961 Cal. 626,630. 208 part  of the order is invalid, there is no reason  why  the. first  part  of the order should not be  given  the  fullest effect  The Court cannot pass a new order of dismissal,  but surely it can give effect to the valid and severable part of the order. In  the result, the appeal is dismissed.  There will  be  no order  ,as to costs.  The appellant is exempted from  paying court fees. Appeal dismissed. 209