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PETITIONER: H. L. MEHRA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT23/04/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. GOSWAMI, P.K.

CITATION:  1974 AIR 1281            1975 SCR  (1) 138  1974 SCC  (3) 396  CITATOR INFO :  RF         1977 SC1884  (26)

ACT: Central Civil Services (Classification, Control and  Appeal) Rules 1965--Sub rule 5(b) of Rule 10--Whether valid.

HEADNOTE: The appellant was in the service of the Government of  India in the P.& T. department and he was posted as an officer  on special  duty in Goa after its liberation on 20th  December, 1961.  The appellant was working in that capacity from  25th December, 1961 to 11th August, 1962 when he was  transferred to Allahabad. While he was in Allahabad. he was suspended from service  by an order dated 11th April, 1963 made by the President  under sub-r.   (1)  of  r.  12  of  the  Central  Civil   Services (Classification,  Control  and  Appeal) Rules  1957  on  the ground  that  a  case against the appellant  in  respect  of criminal offence was under investigation.  On the completion of the investigation by the Special Police Establishment the Government  of  India  sanctioned  the  Prosecution  of  the appellant  and accordingly, the appellant was prosecuted  in the  Court  of  Special Judge,  Greater  Bombay  along  with another.  The principal charge was that while the  appellant was  on  special  duty in Goa, he had  sent  4  consignments specifically described in the charge, in trucks and  railway wagons. and concealed in postal bags from Goa to Bombay  and thereby  committed an offence punishable under S. 5(2)  read with s. (1) (d) of the Prevention of Corruption Act 1947. Whilst the criminal case was pending the Government of India issued  a Memorandum dated 8th March. 1965 to the  appellant intimating  that the President proposed to hold  an  enquiry against  the  appellant  under  r. 15  of  the  Rules.   The allegations  were  set out in the statement  of  allegations enclosed  with the memorandum and the charges framed on  the basis of the allegations were enumerated in the statement of charges.   These  charges  were based  on  wholly  different allegations and had nothing to do with the charges on  which the appellant was being prosecuted in the criminal case. The  learned Special Judge held the appellant guilty on  the second charge so far as it related to the first, second  and fourth consignments referred to in that charge and convicted

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him.   On appeal the High Court confirmed the conviction  of the appellant and maintained the sentence; but a certificate to  appeal  to  the Supreme Court was granted  by  the  High Court.   During the pendency of the appeal,  the  President, passed  an  order dated 26th October, 1967,  dismissing  the appellant from service with immediate effect under R.  19(1) of the Rules, 1965. The appeal against the conviction was, thereafter, heard  by this  Court and this Court allowed the appeal and set  aside the  conviction  on  the  ground that  no  custom  duty  was leviable  on  dispatch of goods from Goa to other  parts  of India and therefore, the appellant could not be held  guilty of evading payment of customs duty etc. The President, thereafter, passed an order setting aside the dismissal  order; but since an enquiry was  pending  against the  appellant  under  the  Rules,  the  President   ordered continuance  of the enquiry and directed continuance of  the suspension until further orders. The appellant, thereafter, filed a writ petition before  the Delhi  High  Court challenging the validity  of  the  order. While  the writ petition was pending, the Government  issued another  memorandum  by which it directed  enquiry  only  in relation to charge 11 of the earlier memorandum; but added 3 more  charges set out in the statement of  charges  enclosed with the second memorandum.  No progress, was, however, made because  of  the writ petition before the High  Court.   The Delhi  High  Court.  dismissed  the  writ  petition  of  the appellant and hence the appeal to this Court.                             139 The  impugned  order  dated 9th June, 1971  consisted  of  3 parts-the  first  part set aside the  dismissal  order,  the second  part  directed continuance of the  enquiry  and  the third  part continued the suspension of the appellant  under sub-rule 5(b) of Rule 10 of the Rules. 1965. The only question debated before this Court was whether  the third  part  of  the impugned order was  valid  and  whether President  was competent to continue the suspension  of  the appellant  under sub rule 5(b) of Rule 10 of the Rules.   It was agreed that the validity of the order of suspension  was to  be  judged  by  reference to 1965  Rules  and  the  only provision  in the Rules of 1965 which deals with  suspension is Rule 10 and 5(b) of Rule 10 provided, inter alia, that :- Where  a Government servant is suspended etc. in  connection with  any  disciplinary  proceedings  etc.  and  any   other disciplinary proceedings is commenced against him during the continuance  of  such suspension, the authority  may  direct that  the  Government  servant shall continue  to  be  under suspension  until  the  termination of all or  any  of  such proceedings." Partly allowing the appeal. HELD : (i) Before action can be taken under sub-rule 5(b) of Rule  10 of the Rules, 1965, two conditions  must  co-exist; one is that the Government servant must be under  continuing suspension  and the other is that during the continuance  of such  suspension "any other disciplinary proceeding"  should be commenced against him. [146D] (ii) When   an  order  of  suspension  is  made  against   a Government servant, pending an enquiry, the relationship  of master and servant does not come to art end.  The Government issues  a direction forbidding the Government  servant  from doing  the work which he was required to do under the  terms of  the  Contract of Service, at the same  time  keeping  in force the relationship of master and servant V.   P. Gindronlya v. State of Madhya Pradesh & ors.  [1970] 3 S.C.R. 448 referred to;

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but when an order of dismissal is passed the Vinculum  Juris between  the  Government and the servant is  dissolved;  the relationship   of  master  and  servant  between   them   is extinguished and the order of suspension, a fortiorari comes to an end.  It follows, therefore. that once the  suspension comes  to  an  end by an order of dismissal,  it  cannot  be revived  by  mere subsequent setting aside of the  order  of dismissal in the absence of a statutory provision or rule to that effect. [147B-D] Om  Prakash Gupta v. The State of U.P. [1955] 2 S.C.R.  391, referred to. Under  the  circumstances, the third part  of  the  impugned order could not be justified under sub-rule 5(b) of Rule 10. [149B-C] (iii)  The third part of the impugned order  continuing  the suspension  of the appellant cannot also be justified  under any of the sub rules of Rule 10.  For example, sub rule 4 is not attracted in the present case.  This sub-rule requires 2 conditions  (i) the order of dismissal must be set aside  in consequence  of  a decision of a court of law and  (ii)  the disciplinary  authority must decide to hold a fresh  enquiry on  the  allegations  on which the order  of  dismissal  was originally   passed.   In  the  present  case,  the   second condition  is not fulfilled because the enquiry revived  and continued  under the second part of the impugned  order  was not  an enquiry on the allegations on which the  penalty  of dismissal   was   originally  imposed  on   the   appellant. Similarly  sub Rule 5(a) is also not attracted because  this sub-rule   only  operates  within  the  framework   of   the relationship of master and servant.  Once that  relationship comes  to an end, sub-rule 5(a) cannot be sustained.  [149F- 15OF; 151C-D] (iv) Therefore, in the present circumstances, the third part of  the  impugned  order continuing the  suspension  of  the appellant must be held to be void and inoperative: but  this does  not mean that the President cannot pass a fresh  order of suspension under sub-rule (1) of Rule 10. if he so thinks fit.  But until such action is taken, the appellant would be entitled  to  his salary under the  conditions;  of  service applicable to him. [152C-D] 140

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1366  of 1972. From the Judgment and Order dated the 25th February, 1972 of the Delhi High Court in Civil Writ No. 1270 of 1971. B.   R.  L. Iyengar, Bishamber Lal, P. V. Kapoor and  S.  C. Patel for the appellant. Govind Das and S. P. Nayar, for the respondent The Judgment of the Court was delivered by BHAGWATI J. This appeal is directed against the judgment  of the Delhi High Court dismissing a writ petition filed by the appellant  against the respondents challenging the  validity of  an  order dated 9th June, 1971 passed by  the  President directing  that a disciplinary inquiry pending  against  the appellant shall be continued until its finalization and  the appellant  shall  continue under suspension  under  sub-rule 5(b)   ,of   rule   10  of  the   Central   Civil   Services (Classification,   Control   and   Appeal)   Rules,    1965, hereinafter  referred  to as CCS (CCA)  Rules,  1965,  until further orders.  The facts giving rise to the appeal may  be briefly stated as follows.

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The territory of Goa, which was under Portuguese domination, was  liberated  by the Indian Army on 20th  December,  1961. The  appellant  was  at  that time in  the  service  of  the Government of India in the Post and Telegraph Department and was  working  as Senior Superintendent of  Post  Offices  at Jaipur.  Since senior and experienced officers were required for   recognising  the  administration  in   the   liberated territory  of Goa, the appellant was transferred and  posted as  officer on Special Duty, Post and Telegraph  Department, Punjab, Goa.  The appellant took charge of his new office on 25th December, 1961 and held that officer till 11th  August, 1962  when  he was transferred  as  Senior  ’Superintendent, R.M.S.,  ’A’ Division, Allahabad.  Whilst the appellant  was functioning  as Senior Superintendent, R.MS.,  ’A’  Division Allahabad  he was suspended from service by an  order  dated 11th  April, 1963 made by the President in exercise  of  the power  conferred  under sub-r. (1) of r. 12 of  the  Central Civil  Services (Classification, Control and Appeal)  Rules, 1957,  hereinafter referred to as the CCS (CCA) Rules,  1957 can the ground that a case against the appellant in  respect of  criminal  offence  was  under  investigation.   On   the completion  of  the  investigation  by  the  Special  Police Establishment,  the  Government  of  India  sanctioned   the prosecution of the appellant and pursuant to the sanction so granted,  the  appellant  was prosecuted in  the,  court  of Special  Judge, Greater Bombay along with one  Raj   Bahadur Mathur  on four charges.  The first and the  fourth  charges are  not  material as the appellant was acquitted  of  those charges  by the learned Special Judge and nothing now  turns upon them.  The third charge is also not material as it  was directed  only against Raj Bahadur Mathur and the  appellant had  nothing to do with it.  The principal, charge  was  the second  charge which alleged that the appellant  had,  while functioning  as Officer on Special Duty, Post and  Telegraph Department, Panjim, 141 Goa,  by abuse of his. official position or by  illegal  and corrupt  means,  obtained pecuniary  advantage  for  himself and/or  for others, inasmuch as he had sent or caused to  be sent  from  Panjim to Bombay  four  consignments  specially, described  in  the charge, in trucks and/or  railway  wagons hired by Post and Telegraph Department for transportation of foreign  parcels  from  Goa to Daman via  Margo,  Poona  and Bombay,  without  payment of freight charges,  customs  duty etc.. and thereby, committed an offence punishable under  s. 5 (2) read with s. 5 (1) (d) of the Prevention of Corruption Act,   1947.    of  the  four   consignments   referred   in this,charge,  the first related to eight cases concealed  in five  postal  bags  sent on or about 29th  June,  1962,  the second  related  to twelve wooden boxes and  a  steel  trunk concealed  in eight postal bags sent on or about 26th  July, 1962, the third related to nine cases sent on or about  31st July,  1962 concealed in postal bags and the fourth  related to  some trunks and leather suitcases sent on or about  31st March,  1962.  Whilst the criminal case was pending  in  the Court  of Special Judge, Greater Bombay, the  Government  of India  issued  a, memorandum dated 8th March,  1965  to  the appellant intimating that the President proposed to hold  an inquiry  against the appellant under r. 15 of the CCS  (CCA) Rules,  1957.   The  allegations on which  the  inquiry  was proposed  to  be  held  were set out  in  the  statement  of allegations  enclosed  with the memorandum and  the  charges framed on the basis of these allegations were enumerated  in the statement of charges accompanying the memorandum.  There were four charges set out in the statement of charges.   The

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first,  the third and the fourth: charges are  not  material and  we  need  not refer to them in detail.   It  would  be. sufficient to state that they were based on wholly different allegations and had nothing to do with the charges on  which the  appellant  was being prosecuted in the  criminal  case. The second charge, however, stood on a different footing and in order to appreciate one of the contentions that has  been raised  before  us, it would be desirable to set it  out  in extenso :               "Shri  H.  L.  Mehra,  while  functioning   as               Officer  on Special Duty, P. & T.  Department,               Panjim,  Goa between the 24th  December,  1961               and the 31st August, 1962, failed to  maintain               absolute  integrity  and devotion to  duty  as               required by Rule 3 of the CCS (Conduct) Rules,               1955 and committed misconduct in the discharge               of his duties as a public servant inasmuch  as               he, by abusing his official position,  managed               to  send 9 cases packed with his  luxury  goods               from  his residence at Panjim to  Margoa  Post               Office on or about the 31st July, 1962 in  the               truck of Vasant Shiva Amoncar, hired by the P.               & T. Department, Panjim Goa for carrying mails               from  Margoa  to Panjim Post  Office,  without               paying  any  truck  hire I  charges  and  also               unauthorizable  utilised the services of  the,               postal  carpenters on working days during  the               office  hours for packing the aforesaid  cases               and thereby secured to himself’ wrongful  gain               and pecuniary advantage." The disciplinary inquiry into these charges proceeded rather desultorily  and  not much progress was  made.   The  reason obviously was that them 142 criminal case was pending At the trial of the criminal case, a  large  mass  of  evidence,  was  led  on  behalf  of  the prosecution  and the appellant also led evidence in  support of the defence.  On the evidence, the learned Special  Judge came to the conclusion that the first and the fourth charges were not established against the appellant and acquitted him of those charges.  The learned Special, Judge also acquitted Raj Bahadur Mathur of the first and the third charges framed against  him.  However, so far as the second charge  against the appellant was concerned, the learned Special Judge found that the appellant was guilty of that charge in so far as it related to the first, the second and the fourth consignments referred  to  in that charge though not in  respect  of  the third consignment of nine cases sent on or about 31st  July, 1962.  The learned Special Judge accordingly- convicted  the appellant only in respect of the second charge and that  too in  so far as it related to the first, the second  ,and  the fourth  consignments  and  acquitted him of  all  the  other charges  including  the second charge in so far  as  it  was based  on  the third consignment of nine cases  sent  on  or about  31st July, 1962.  The appellant preferred  an  appeal against the order passed by the learned Special Judge in  so far as it related to his conviction and the appeal was heard by a Division Bench of the High Court of Bombay.  The  Divi- sion  Bench by a judgment dated 17th April,  1967  confirmed the  conviction  of the appellant and  also  maintained  the sentence  passed against him by the learned  Special  Judge. The  appellant  immediately applied for  a  certificate  for leave  to  appeal  to this Court  and  the  certificate  was ,granted  by the High Court of Bombay on 18th  April,  1967. Since an appeal against the conviction was preferred to this

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Court,  the President could have waited for the disposal  of the appeal before taking any action against the appellant on the  basis of the, conviction.  But, instead, the  President passed  an order dated 26 th October, 1967  ,dismissing  the appellant  from  service with immediate  effect  under  Rule 19(1)  of  CCS  (CCA) Rules, 1955 on  the  ground  that  the conduct of the, appellant, which had led to the  conviction, was.  such as to render his further retention in the  public service undesirable.  The appeal against the conviction was, thereafter, heard by this Court and by a judgment dated 19th March, 1971 this Court allowed the appeal and set aside  the conviction  of the appellant.  It is necessary for the  pur- pose  of the present appeal to make a detailed reference  to this judgment but it would be enough to state that the  main ground on which this Court exonerated the appellant was that no  customs duty was leviable on dispatch of goods from  Goa other parts of India and the appellant could not, therefore, be said to be guilty of having obtained pecuniary  advantage in  the  shape  of evasion of payment  of  customs  duty  by abusing  his official position and/or by illegal or  corrupt means.   The  conviction of the appellant  having  been  set aside,  the  order  of dismissal  based  on  the  conviction obviously   could  not  be  sustained  and  the   President, therefore, decided that the order of dismissal should be set aside  and  passed an order to the following effect  on  9th June, 1971:               WHEREAS  Shri  H. L. Mehra,  the  then  Senior               Supdt. of RMS was dismissed from service  with               effect from 26th Octo-               143               ber,  1967 on the ground of conduct which  led               to  his conviction on a criminal  charge  vide               order No. 7/6/63-Disc. dated the 26th October,               1967.               AND  WHEREAS the said conviction has been  set               aside  by the Supreme Court and the said  Shri               H.  L.  Mehra has been acquitted of  the  said               charge, ;               AND  WHEREAS in consequence of such  acquittal               the President has decided that the said  order               of dismissal should be set aside.               AND WHEREAS Shri H. L. Mehra, the then  Senior               Supdt. of RMS, was under suspension vide order               No.  10/10  9/63-Vig. dated  the  11th  April,               1963, at the time of dismissal, and an enquiry               under the provisions of CCS (CCA) Rules,  1957               as ordered vide memo No. 7/6/63Disc. dated the               8th March, 1965 was pending against him;               AND WHEREAS the President has decided that the               said enquiry pending against Shri H. L. Mehra,               may  be continued and under sub-rule  5(b)  of               Rule  10 of CCS (CCA) Rules, 1965, Shri H.  L.               Mehra  should continue under suspension  until               the termination of such proceedings               NOW, therefore, the President hereby-               (i)   sets aside the said order of dismissal;               (ii)  directs that the enquiry pending against               Shri H. L. Mehra, shall be continued until its               finalisation;               (iii) directs that the said Shri H. L.  Mehra,               shall under sub-rule 5 (b) of Rule IO of  CCS,                             (CCA)  Rules,  1965 continue  to  rema in  under               suspension until further orders." The appellant being aggrieved by this order in so far as  it

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directed  continuance of the inquiry instituted against  him by  the Memorandum dated 8th March, 1965 and also  continued his  suspension  under  sub-r’ 5(b) of r. 10  of  CCS  (CCA) Rules, 1965, filed a writ petition in the Del-hi High  Court challenging  the validity of this order on  various  grounds set out in the writ petition.  Whilst the writ petition  was pending,  the President issued another Memorandum dated  9th December,  1971 dropping charges Nos. 1, III and IV set  out in  the Memorandum dated 8th March, 1965 and directing  that the  inquiry be continued only in respect of Charge  11  and stating  that an inquiry should also be held in  respect  of three  further charges set out in the statement  of  charges enclosed  with the Memorandum.  The inquiry which  was  thus continued  against the appellant was an inquiry into  Charge II  set out in the Memorandum dated 8th March, 1965 and  the three  further charges set out in the Memorandum  dated  9th December,  1971.   No  progress was, however,  made  in  the inquiry in view of the writ petition filed by the appellant. The writ petition was heard by a Division 144 Bench  of the Delhi High Court and by a judgment dated  25th February,  1972  the  Division Bench  rejected  the  various grounds  urged  on  behalf  of  the  appellant  against  the validity of the order dated 9th June, 1971 and dismissed the writ  petition.  Hence the present appeal by  the  appellant with certificate obtained from the Delhi High Court. The  order  dated 9th June, 1971, impugned in  this  appeal, consisted of three, parts.  One part set aside the order  of dismissal  passed  against the appellant  on  26th  October, 1967,  the  other part directed continuance of  the  inquiry instituted  against the. appellant by the  Memorandum  dated 8th  March,  1965,  while  the  third  part  continued   the suspension  of the appellant under sub-rule 5(b) of rule  10 of the CCS (CCA) Rules, 1965.  So far as the second part  of the impugned order is concerned, it was no doubt  challenged as  outside  the  authority of the  President  in  the  writ petition  as  also in the arguments before  the  Delhi  High Court,  but at the’ hearing of the appeal before us, it  was frankly  conceded by the learned counsel for  the  appellant that  it  was not possible for him to assail  its  validity. That  part of the impugned order must therefore, be held  to be valid.  The only question debated before-us was-and  this raised  a rather serious controversy-whether the third  part of  the impugned order was valid : was it competent  to  the President, in the circumstances of the case, to continue the suspension  of the appellant under sub-rule 5(b) of rule  10 of  the CCS (CCA) Rules,- 1965 ? Even if it was  not,  could this part of the impinged order be sustained under any other provision of rule 10 of the CCS (CCA) Rules, 1965 ? The suspension of the appellant was originally made under an order  dated  11th  April, 1963 in  exercise  of  the  power conferred  under  sub-rule (1) of rule 12 of the  CCS  (CCA) Rules,  1957 and it was this suspension which was  purported to be continued by the impugned order under sub-rule 5(b) of rule  10  of  the CCS (CCA) Rules,  1965.   There  was  some controversy before tile Delhi High Court as to which set  of Rules  would be applicable for continuing the suspension  of the,  appellant  at  the date when the  impugned  order  was passed.  The appellant contended that the Rules-  applicable would  be the CCS (CCA) Rules, 1957 and the  impugned  order made  under the CCS (CCA) Rules, 1965 was,  therefore,  bad. But this contention was rejected by the Delhi High Court and rightly because rule 34 of the CCS (CCA) Rules, 1965,  which repeals  the CCS (CCA) Rules, 1957 provides in  Proviso  (b) for the application of the CCS (CCA) Rules, 1965 to  pending

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proceedings.   This being the, clear position,  the  learned counsel for the appellant conceded that the validity of  the impugned  order continuing the suspension of  the  appellant would have to be judged by reference to the CCS (CCA) Rules, 1965. Now  the only provision in the CCS (CCA) Rules,  1965  which deals  with suspension is rule 10.  It would be,  convenient at  this stage to refer to the relevant provisions  of  that rule’ 145 "10.(1)  The appointing authority or any authority to  which it is subordinate or the disciplinary authority or any other authority  empowered  in  that behalf by  the  President  by general  or  special order, may place a  Government  servant under suspension-               (a)   where a disciplinary proceeding  against               him is contmplated or is pending, or-               (3)   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               inquiry   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.               (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, decide 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.               (5)   (a)  An  order  of  suspension  made  or               deemed to have been made under this rule shall               continue  to  remain  in  force  until  it  is               modified or revoked by the authority competent               to do so.               (b)   Where a Government servant is  suspended               or is deemed to have been suspended,  (whether               in connection with any disciplinary proceeding               or  otherwise),  and  any  other  disciplinary               proceeding is commenced against him during the               continuance  of that suspension the  authority               competent  to place him under suspension  may’               for reasons to be recorded by him in  writing,               direct  that  the  Government  servant   shall               continue  to  be under  suspension  until  the               termination   of   all   or   any   of    such               proceedings." Since  the impugned order continuing the suspension  of  the appellant  is  purported to be made under sub-rule  5(b)  of

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rule 10, we may first 146 examine  whether it is justified on the terms of  that  sub- rule.  Sub-rule 5(b) postulates that a Government servant is suspended  or  deemed  to have  been  suspended-this  latter contingency  would arise where a case falls within  sub-rule (2)-and during the continuance of his suspension "any  other disciplinary   preceding"  is  commenced  against  him   and provides that ’M. such a case, a direction may be given that he shall continue under suspension until the termination  of such disciplinary proceeding.  The words "Government servant shall continue to be under suspension" in the  juxtaposition of  the  opening  clause  clearly  suggest  that  the  basic condition for the applicability of subrule 5 (b) is that the Government servant should be under continuing suspension  at the  date  when  "any  other  disciplinary  proceeding"   is commenced against him and direction is given for continuance of  the  suspension.  It is indeed difficult to  see  how  a Government  servant can be directed to continue to be  under suspension  unless he is under suspension at the  time  when such direction is given.  There can be fresh suspension of a Government  servant  but  we fail to see how  there  can  be continuance of a suspension which does not exist.  Two  con- ditions,  must,  therefore, co-exist before  action  can  be taken  under  subrule  5 (b) : one is  that  the  Government servant  must be under continuing, suspension and the  other is that during the continuance of such suspension "any other disciplinary proceeding" should be commenced against him. Now in the present case, we will assume with the respondents that  under  the  second  part  of  the  impugned  order,  a disciplinary proceeding was commenced against the appellant, though it was really a revival of the old inquiry instituted under  the  Memorandum  dated 8th March, 1965  and  not  the commencement of a new disciplinary proceeding.  But even so, the  question would still remain whether the, appellant  was under  suspension  at the date when the impugned  order  was made.   It  is only, if he was, that he could  be  continued under  suspension  under  sub-rule 5(b)  of  rule  10.   The appellant  was  originally suspended under the  order  dated 11th April, 1963 because a case against him in respect of  a criminal offence was under investigation.  This was followed by  the  institution of a criminal case against him  and  in this criminal case he was convicted by the Special Judge and his  conviction was confirmed by the Bombay High Court.   On the  basis  of  the  judgment  of  the  Bombay  High   Court confirming his conviction, he was dismissed by the President by  an order dated 26th October, 1967.  The argument of  the appellant was that on the passing of the order of dismissal, his  suspension came to an end and even though the order  of dismissal  was  subsequently set aside by the  President  by the. first part of the impugned order, that did not have the effect  of  reviving the suspension and  the  appellant  was accordingly  not  under  suspension at  the  date  when  the impugned  order  was made.  The respondents,  on  the  other hand, contended that by reason of sub-rule, 5(b) of rule  10 the order of suspension passed on 11th April, 1963 continued to  remain  in  force despite the making  of  the  order  of dismissal  and in any event, even if the suspension came  to an end as a result of the passing of the order of dismissal, it  was revived with retrospective effect when the order  of dismissal  was set aside by the President by the first  part of the impugned, order 147 and,  therefore, at the instant of time when the third  part of  the impugned order was made under sub-rule 5(b) of  rule

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10,  the appellant was under suspension.  We find  there  is great  force  in  the  argument of  the  appellant  and  the contention  of  the  respondents to  the  contrary  must  be rejected.  Both principle as well as precedent compel us  to this conclusion. Let  us first examine the, question on principle.   When  an order  of  suspension is made against a  Government  servant pending  an  enquiry into his conduct, the  relationship  of master  and  servant  does not come to  an  end.   What  the Government,  as  master, does in such a case  is  merely  to suspend the Government servant from performing the duties of his  office.  The Government issues a  direction  forbidding the  Government  servant from doing the work  which  he  was required to do under the terms of the contract of service or the statute or rules governing his conditions of service, at the  same time keeping in force the relationship  of  master and servant.  In other words, to quote Hegde, J., from V. P. Gindroniya  v.  State  of Madhya Pradesh  &  Ors.,(1),  "the employer  is regarded as issuing an order to  the  employee, which because the contract is subsisting, the employee  must obey".    This  being  the  true  nature  of  an  order   of suspension, it follows that the Government servant would  be entitled  to his remuneration for the period  of  suspension unless  there  is  some provision in the  statute  or  rules governing  his  conditions  of service  which  provides  for withholding  of  such remuneration.  Now, when an  order  of dismissal   is  passed,  the  vinculum  juris  between   the Government  and the servant is dissolved : the  relationship of  master and servant between them is  extinguished.   Then the  order of suspension must a fortiorari come to  an  end. But what happens when the order of dismissal is subsequently set aside ? Does that revive the order of suspension ? We do not think so.  Once the suspension has come to an end by  an order of dismissal, which was effective when made, it cannot be revived by mere subsequent setting aside of the order  of dismissal in the absence of a statutory provision or rule to that effect.  That is precisely the reason why sub-rules (3) and  (4)  had  to be introduced in  rule  10  providing  for retrospective  revival and continuance of the suspension  in cases  falling within those sub-rules.  This position  which emerge clearly on principle is supported also by  authority. There  is a decision of a Bench of six judges of this  Court which  endorses the same view.  That is the decision  in  Om Prakash  Gupta  v.  The  State  of  Uttar  Pradesh.(2)   The appellant  in  that  case was suspended  from  service  with effect  from 24th August, 1944 pending an enquiry  into  his conduct.  The Commissioner completed the enquiry and made  a report to the Government and on the basis of the report  the Government  passed  an  order  dated  25th  November,   1944 dismissing  the  appellant  from  service.   The   appellant claimed  that the order of dismissal passed against him  was illegal  and void and he continued to be in service and  was entitled  to recover affairs of salary.  The claim that  the order  of dismissal was illegal and void and  the  appellant continued to be in service was upheld by (1) [1970] 3 S.C.R. 448. (2) [1955] 2 S.C.R. 391. 148 the  High Court but relief by way of recovery of arrears  of salary  was refused and the appellant, therefore,  preferred an  appeal  to this Court.  The claim of the  appellant  for affairs  of  salary  which was  debated  before  this  Court related  to two distinct periods : one from the date of  the order  of  suspension  up  to  the  date  of  the  order  of dismissal,  and  the  other from the date of  the  order  of

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dismissal up to the date when the order of dismissal was set aside  by  the  Court.  So far as the claim  for  the  first period  was concerned, the appellant gave it up before  this Court,  as it would have necessitated a remand  which  would have  involved  the  appellant  in  heavy  expenditure   and harassment.   The claim for the second period was,  however, seriously pressed on behalf of the appellant and this  Court decreed it for reasons which may best be stated in the words of Imam, J., speaking on behalf of the Court :               "He,  i.e., the appellant, however,  contended               that  the order of suspension continued to  be               in  force only until the 25th November,  1944,               the  date of the order of dismissal.  on  that               date  the order of suspension ceased to  exist               and  the  appellant was  entitled  to  recover               arrears  of  salary from  the  25th  November,               1944,  to the 31st December, 1947,  inclusive.               The  Attorney-General strongly contended  that               it  continued to be in force and that  it  was               not at all affected by the declaration of  the               Civil  Judge that the order of  dismissal  was               illegal.   In view of that decision the  order               of dismissal must be regarded as a nullity and               non-existent in the eye of law.  The  inquiry,               the   outcome  of  which  was  the  order   of               dismissal, had not therefore ended.  It  could               only end with a valid order which would replace               the order of suspension.  Until that  happened               the accusation against the appellant  remained               and the inquiry had not ended.  He referred to               the case of.  M. Gopal  Krishna Naidu v. State               of  Madhya  Pradesh(,’).   On  behalf  of  the               appellant  reliance was placed on the case  of               Provincial  Government, Central Provinces  and               Berar  through Collector, Amraoti V.  Shamshul               Hossain  Siral  Hussain  (2) .  The  order  of               suspension  made  against  the  appellant  was               clearly  one  made  pending  an  inquiry.   It               certainly  was not a penalty imposed after  an               enquiry.   As  the result of  the  inquiry  an               order of dismissal by way of penalty had  been               passed  against  the  appellant.   With   that               order,  the order of suspension  lapsed.   The               order  of  dismissal  replaced  the  order  of               suspension which then ceased to. exist.   That               clearly   was   the   position   between   the               Government  of  the United Provinces  and  the               appellant.   The subsequent declaration  by  a               Civil  Court that the order of  dismissal  was               illegal   could   not  revive  an   order   of               suspension  which  did not exist.   The  case,               referred  to  by the  Attomey-General  is  not               directly  in point and that decision does  not               conflict  with  the case relied  upon  by  the               appellant.    The  appellant  is,   therefore,               entitled to recover               (1) A.I.R. 1952 Nag. 170. (2) I.L.R. 1948 Nag.               576: A.I.R. (36) 1949 Nag.  118.                                    149               arrears  of  salary from  the  25th  November,               1944, to 31st December, 1947." This  decision  leaves no room for doubt as to  the  correct legal   position   and  the  conclusion   must,   therefore, inevitably  follow  that  when the order  of  dismissal  was passed on 26th October, 1967, the order of suspension  dated

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11th  April,  1963  ceased to exist and it  did  not  revive thereafter  by the subsequent setting aside of the order  of dismissal  by  the first part of the  impugned  Order.   The appellant was accordingly not under suspension at the  point of time  when the third part of the impugned order was  made and  in  the circumstances, the third part of  the  impugned order could not be justified under subrule 5(b) of rule 10. But  that  does not conclude the question.  It is  now  well settled  that  when an authority passes an  order  which  is within  its  competence, it cannot fail  merely  because  it purports  to be made under u wrong provision, if it  can  be shown to be within its power under any other provision.   If the power is otherwise established, the fact that the source of  the  power has been incorrectly described in  the  order would not make it invalid.  Vide P. Balakotaiah v. The Union of  India(1) and Afzal Ullah v. State of  Uttar  Pradesh(2). We  must, therefore, proceed to consider whether  the  third part  of  the impugned order could be  justified  under  any other provision contained in rule 10. sub-rule (3) obviously could not be invoked because the order of dismissal was  not "set  aside  in  appeal or on review" under  the  CCS  (CCA) Rules,  1965.   The  only sub-rule which could  be  and  was relied  upon by the respondents was sub-rule (4) and it  was urged  that  under  that sub-rule, the  order  of  dismissal having been set aside by the President in consequence of the decision  of  this  Court  acquitting  the  appellant,   the appellant   must  be  deemed  to  have  been  placed   under suspension  by the President from the date of  the  original order  of dismissal, and he would continue to  remain  under suspension until further orders and it was in recognition of this position that the third part of the impugned order  was made.   This contention of the respondents is  also  without force.  There are two conditions which must be satisfied  in order to attract the operation of sub-rule (4).  First,  the order  of  dismissal must be set aside in consequence  of  a decision of a court of law-we are setting out here only  the material  part  of the first condition,  and  secondly,  the disciplinary  authority must decide to hold a fresh  enquiry on  the  allegations  on which the order  of  dismissal  was originally  passed.   The  first  condition  was  admittedly satisfied in the present case because the order of dismissal was  set  aside  by  the President  in  consequence  of  the decision  of  this  Court  acquitting  the  appellant.   The question is whether the second condition was satisfied.  Was the  inquiry continued under the impugned order  an  inquiry against  the  Appellant  on the  allegations  on  which  the original  order  of  dismissal was based?   To  answer  this question, we must once again turn to the facts which we have already (1)  [1958] S.C.R. 1052. (2) [1964] 4 S.C.R. 991. 150 narrated.   The  penalty  of dismissal was  imposed  on  the appellant  on the ground that his conduct, which had  led-to the conviction, was such as to render his further  retention in  the public service undesirable.  Now the  conviction  of the appellant was in respect of the second charge in so  far as  it  related  to the first, the  second  and  the  fourth consignments,  and therefore, the conduct of  the  appellant which  led to his conviction was that set out in the  second charge in reference to the first, the second and the  fourth consignments.   So far as the second charge in  relation  to the  third  consignment  of  nine  cases  alleged  to   have dispatched  on  or about 31st July, 1962 is  concerned,  the appellant   was  acquitted  and  his  alleged   conduct   in

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dispatching these cases did not lead to his conviction.  The allegations on which the penalty of dismissal was originally imposed  on the appellant were, therefore, those set out  in the  second charge in relation to the first, the second  and the  fourth consignments.  The enquiry instituted under  the memorandum  dated  8th March, 1965, which  was  revived  and continued  under the second part of the impugned order,  was obviously  not an enquiry against the, appellant on  any  of those  allegations.  The allegations on which  this  enquiry was instituted were those stated in charges I to IV enclosed with  the memorandum dated 8th March, 1965 and they did  not include  any allegations relating to dispatch of the  first, the  second  and the fourth consignments  which  formed  the basis of the making of the original order of dismissal.  The allegations contained in charges 1, II and III were in  fact wholly unrelated to any of the charges in the criminal case. The  allegations in charge 11 relating to dispatch  of  nine cases  on  or about 31st July, 1962, no  doubt,  formed  the subject matter of the second charge in relation to the third consignment,  but  in  respect of this  charge,  as  already pointed  out, the appellant was acquitted and  the  original order  of  dismissal  was  obviously  not  based  on   these allegations.   The enquiry revived and continued  under  the second  part of the impugned order was,  therefore,  clearly not  an enquiry on the allegations on which the  penalty  of dismissal was originally imposed on the appellant.  Sub-rule (4)  of rule 10 had accordingly no application and it  could not  be  invoked to justify the third part of  the  impugned order. We must at this stage refer to one other contention advanced on behalf of the respondents in support of the third part of the  impugned order.  That contention was based on  sub-rule 5(a) of rule 10, which provides that an order of  suspension made  or  deemed  to have been made under  that  rule  shall continue to remain in force until it is modified or  revoked by  the authority competent to do so.  The argument  of  the respondents  was  that the order of  suspension  dated  11th April,  1963, though made under sub-rule (1) of rule  12  of the CCS (CCA) Rules, 1957, must, by reason of proviso (b) to rule  54, be deemed to have been made under sub-rule (1)  of rule  10, and consequently, it must, by virtue  of  sub-rule 5(a) of rule 10, continue to remain in force until  modified or  revoked by a competent authority.  It was said that  the President, who is the competent authority for this  purpose, had at no time revoked or modified this 151 order  of suspension and it, therefore, continued  in  force even  after the making of the order of dismissal dated  26th October,  1967 and the third part of the impugned order  did no   more  than  merely  recognise  this   position.    This contention  is  wholly without force : it has merely  to  be stated in order to be rejected.  We fail to see how an order of  suspension  can  continue  to  be  in  force  after  the relationship of master and servant has come to an end by the making  of  an  order of dismissal.  How  can  a  Government servant  be  forbidden  from performing the  duties  of  his office  when his office is no more and he has no  duties  to perform  because he is dismissed?  The order  of  suspension postulates the continuance of the relationship of master and servant and this postulate is not destroyed by sub-rule 5(a) of  rule  10.   This  sub-rule  operates  only  within   the framework  of the relationship of master and servant.   Once the  relationship  of master and servant is  dissolved,  the suspension necessarily comes to an end and sub-rule 5(a)  of rule  10 cannot possibly be construed to have the effect  of

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continuing  the suspension. The third part of  the  impugned order  cannot therefore be sustained  by reference  to  sub- rule 5(a) of rule 10. We must, therefore, inevitably reach the conclusion that the third  part of the impugned order continuing the  suspension of the appellant was outside the authority of the President. It  could not be sustained under any of the three  sub-rules of  rule  10, namely sub-rules 3, 5(a) and  5(b),  on  which reliance was placed on behalf of the respondents.   Sub-rule (1)  of rule 10 was rightly not invoked by  the  respondents because,  in  making the third part of the  impugned  order, what  the  President  did was merely  to  continue  what  he erroneously  believed to be a subsisting suspension  of  the appellant  until the termination of the enquiry and  he  did not  claim  or  even  profess  to  make  a  fresh  order  of suspension.  The third part of the impugned order continuing the  suspension  of the appellant could not,  therefore,  be justified under any sub-rule of rule 10.  It is  unfortunate that though different sub-rules of rule 10 have been enacted with great care and they are intended to be exhaustive so as to provide for all possible situations where it may be found necessary  to revive and continue an order of suspension,  a lacunas  has remained and there is no provision made  for  a case  such as the one we have before us, Perhaps a  case  of this  kind  would be rare and that is why  the  rule  making authority has not thought about making any provision for  it in  rule 10.  But there can be no doubt that it is a  lacuna and it must be remedied in order that there may be no  break in the suspension of the Government servant when an order of dismissal  is  set aside or declared or rendered void  in  a situation of this kind.  However, as rule 10 stands  to-day, the  third  part  of  the  impugned  order  continuing   the suspension  of  the appellant must be held to  be  void  and inoperative That means that the suspension of the  appellant under  the  order dated 11th April, 1963 came to an  end  on 25th  October, 1967 when the order of dismissal  was  passed against him and since then the appellant is no longer  under suspension.   The appellant must, therefore, be held  to  be entitled to salary from 26th October, 1967 and an order for 152 payment  of arrears of salary must be passed in his  favour. This of course does not mean that the President cannot  now, in-  exercise  of the power under sub-rule (1) of  rule  10, pass  a  fresh  order of suspension  against  the  appellant pending  the  enquiry which has been revived  and  continued against  him.  It would always be open to the  President  to take  appropriate  action by way of suspension  against  the appellant  under  sub-rule (1) of rule 10, if he  so  thinks fit.  But until such action is taken, the appellant would be entitled  to  his  salary under the  conditions  of  service applicable  to  him.   The claim of the  appellant  for  the period  between  11th  April, 1963 and  25th  October,  1967 stands  on  a  different footing.  During  this  period  the appellant  was  validly under suspension  and  whilst  under suspension he received-subsistence allowance as provided  in the  relevant rules.  Whether for this period the  appellant is  entitled  to  be  paid  full  pay  allowances  or   some proportion  of such pay and allowances or nothing more  than the  subsistence allowance would be a matter for the  appro- priate authority to decide under the relevant rules.  If the decision of the appropriate authority on this question, when made,  is contrary to the rules governing the conditions  of service,  the  appellant  would be free  to  challenge  such decision.   But that question does not arise now and  we  do not purpose to express any opinion upon it.

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We  therefore, partly allow the appeal and issue a  writ  of mandamus  quashing and setting aside the third part  of  the impugned   order  dated  9th  June,  1971   continuing   the suspension  of the appellant and direct the  respondents  to pay  to the appellant arrears of salary from  26th  October, 1967  after  deducting the amount of  subsistence  allowance paid  to him.  Since the appellant has partly succeeded  and party  failed,  the fair order of costs would be  that  each party should bear and pay its own costs throughout. Appeal partly allowed. 153