21 April 1955
Supreme Court


Case number: Appeal (civil) 85 of 1954






DATE OF JUDGMENT: 21/04/1955


CITATION:  1955 AIR  600            1955 SCR  (2) 391

ACT:        Government  servant-order of dismissal-Suit for  declaration        that  order  dismissing  the  appellant  from  service   was        illegal-Court  fee paid on an alternative claim for  damages        which  was subsequently given up-Refund of-Whether could  be        granted-Arrears  of pay-Claim for-Lapse of suspension  order        after order of dismissal.

HEADNOTE:        The  appellant,  a  member of  the  United  Provinces  Civil        (Executive) Service, was suspended from service with  effect        from  the  24th August, 1944, pending an  enquiry  into  his        conduct.   As  a  result  of  enquiry  and  report  by   the        Commissioner,  the  Government passed an order on  the  25th        November, 1944, dismissing the appellant from service, which        order was served on the appellant on the 1st December, 1944.        The  appellant instituted a suit for a declaration that  the        order of dismissal passed against him was wrongful,  illegal        and inoperative, and that he continued to be in service  and        ’was  entitled  to a decree for recovery of arrears  of  his        salary.   The  plaint included an alternative prayer  for  a        declaration that the order of dismissal was        50        392        wrongful  and  for  a decree for Rs. 1,20,000/-  by  way  of        damages being passed in his favour.  The requisite court-fee        on the valuation of Rs. 1,20,000/- was paid.  The claim  for        damages  was later on abandoned in view of the  decision  of        the  Privy Council in High Commissioner for India  and  High        Commissioner  for Pakistan v. I.M. Lal(1) and  consequential        amendments were made in the plaint.  The Civil Judge granted        a  declaration that the order of dismissal was  illegal  and        that  the appellant continued to be in service in  spite  of        that  order.  But he declined to grant a decree for  arrears        of  salary  on  the  ground that a  suit  therefor  was  not        maintainable.   A  prayer for the refund of  the  additional        court-fee paid in respect of the claim for damages was  also        refused.  The respondent did not appeal against the decision



      that the order of dismissal was illegal.  But the  appellant        took the matter in appeal to the High Court which, affirming        the  decision  of the Civil Judge, negatived his  claim  for        arrears  of  salary and also refused  refund  of  court-fee.        Leave was, however, granted to appeal to the Supreme Court.        In view of the decision of the Supreme Court in the case  of        The State of Bihar v. Abdul Majid(2), the respondent did not        dispute  the  right of the appellant to recover  arrears  of        pay.   But he sought to support the decision on  the  ground        that  the order of dismissal dated the 25th November,  1944,        having  been declared to be illegal and void, the  order  of        suspension  dated the 24th August, 1944, became revived  and        that that would bar the claim for arrears of salary.        Held that the order of suspension made against the appellant        being  one pending an enquiry, it lapsed with the  order  of        dismissal and the subsequent declaration by the Civil  Court        that the order of dismissal was illegal could not revive  an        order which had ceased to exist.        The question whether the order of suspension dated the  24th        August, 1944, was valid and whether it was passed after  due        enquiry, would be material only with reference to the  claim        for salary for the period between the 24th August, 1944  and        the  1st December, 1944, and as the appellant did not  press        the  claim  for that period there was no need to  direct  an        enquiry on that point.        Held  further that the claim for refund of  extra  court-fee        could  not be granted inasmuch as the decision of the  Privy        Council  clarifying the position could not be a  ground  for        the refund of excess court-fee when at the time it was  paid        it was in accordance with the law as it then stood.        The  State  of  Bihar v. Abdul Majid  ([1954]  S.C.R.  786),        Shenton  v.  Smith  ([1896] A.C. 229),  B.  Venkata  Rao  v.        Secretary  of State for India in Council (L.R. 64 I.A.  55),        M.  Gopal Krishna Naidu v. State of Madhya  Pradesh  (A.I.R.        1952 Nag. 17), Provincial Government, Central Provinces  and        Berar  through Collector, Amraoti v. Shamshul Hussain  Siraj        Hussain (I.L.R. [1948] Nag. 576), referred to.        (1)  [1948] L.R. 75 I.A. 225.        (2)  [1951] S.C.R. 786.                                    393

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 85 of 1954.        Appeal under Article 133(1)(c) of the Constitution from  the        Judgment  and  Decree dated the 6th November, 1950,  of  the        High  Court  of Judicature at Allahabad in F.A. No.  141  of        1949.        S.   Ramaswamy  Iyer  (K.  R. Choudhry, with  him)  for  the        appellant.        M.   C. Setalvad Attorney-Generalfor India (C.  P. Lal, with        him) for the respondent.        1955.  April 21.  The Judgment of the Court was delivered by        IMAM  J.-This  is  an appeal against  the  decision  of  the        Allahabad  High  Court affirming the decision of  the  Civil        Judge of Allahabad.        The  appellant was appointed to the United  Provinces  Civil        (Executive) Service in 1940 and in due course was confirmed.        He was posted to various stations and in 1944 he was  posted        to  Lakhimpur Kheri, where he joined in July, 1944.  On  the        23rd  August,  1944, the Deputy  Commissioner  of  Lakhimpur        Kheri received a telegram from Government informing him that        the  appellant was suspended forthwith pending inquiry  into        his conduct and that a copy of the telegram was forwarded to



      the  appellant for information.  On the 26th  August,  1944,        the  Deputy Commissioner wrote to the appellant that he  was        required  to appear before the Commissioner of  the  Lucknow        Division on the 28th August, 1944, to answer the charges,  a        copy  of  which would be forwarded to him.  He  further  in.        formed the appellant that he could treat his case under rule        55 of the Civil Services (Classification Control and Appeal)        Rules of 1930, published in the United Provinces Gazette  of        June  28, 1930.  The appellant was further informed that  in        view of his suspension his leave application was  cancelled.        On the 28th August, 1944, the appellant appeared before  the        Commissioner at Lucknow and protested against the  procedure        adopted by him for the inquiry.  The Commis-        394        sioner having - completed the inquiry on the 1st  September,        1944, submitted his report to Government.  The Commissioner,        however, recommenced the inquiry on September 11, 1944,  and        after  completing  the  inquiry  submitted  the  papers   to        Government  on the 30th September, 1944.  The Government  of        the  United Provinces by an order dated the  25th  November,        1944,  dismissed  the appellant from  the  United  Provinces        Civil  (Executive)  Service.  This order was served  on  the        appellant  on  the 1st December, 1944, and  he  submitted  a        memorial  to  the  Governor on August  7,  1945,  which  was        rejected  on  the  28th May, 1947.   During  the  period  of        suspension  the appellant was paid subsistence allowance  at        the rate of one-fourth of his salary which was then Rs.  310        per month.        The  appellant gave notice under section 80 of the  Code  of        Civil Procedure of his intention to bring a suit and on  the        2nd  January,  1948,  he filed his suit.   He  asked  for  a        declaration  that  the  order  of  dismissal  was  wrongful,        illegal, void and inoperative and that he still continued to        be  a member of the Civil Service entitled to full pay  with        all increments as they fell due.  He prayed for a decree for        recovery  of arrears of salary amounting to  Rs.  16,810-8-0        less  subsistence  allowance already drawn from  August  24,        1944,  to December 31, 1947.  In the alternative  he  prayed        for  a declaration that the order of dismissal was  wrongful        and  that  a  decree  to the extent  of  Rs.  1,20,000  with        interest  by way of damages may be passed in his favour.  He        paid  the  requisite  court  fee on  the  valuation  of  Rs.        1,20,000.   This  alternative  claim was  deleted  from  the        plaint  as  a  result of an amendment, having  regard  to  a        subsequent decision of the Privy Council* which held that  a        person  illegally  dismissed from Government  service  could        only  get a declaration that the order was  inoperative  and        that he still continued to be a member of the Service.        The  appellant asked for refund of the extra court fee  paid        which  was rejected by the Civil Judge by a separate  order.        The Civil Judge, however, decreed        High  Commissioner  for  India  and  High  Commissioner  for        Pakistan v.        1.   M. Lal, [1948] L.R. 75 I.A. 225.                                    395        the  appellant’s  suit  in part  declaring  that  the  order        dismissing  him from service was illegal and that  he  still        continued  to  be  a member of the  United  Provinces  Civil        (Executive) Service.  The Civil Judge, however, declined  to        pass a decree for arrears of salary.        Against  the  decision  of the  Civil  Judge  the  appellant        appealed  to  the High Court and his appeal  was  dismissed.        The  respondent did not appeal against the decision  of  the        Civil  Judge or file a cross-objection.  The appeal  in  the        High  Court  proceeded  on  the  basis  that  the  order  of



      dismissal made against the appellant was illegal and that it        was rightly declared that he continued to be a member of the        service  of the United Provinces Civil (Executive)  Service.        The only two questions which were considered and decided  by        the High Court were as to whether the appellant was entitled        to a decree for arrears of salary and a refund of the excess        court  fee paid by him.  Both these questions  were  decided        against  the appellant by the High Court which  subsequently        gave him a certificate for leave to appeal to this court.        It  may  be stated at once that in view of the  decision  of        this court in The State of Bihar v. Abdul Majid(1) there can        be  no  question  now that the appellant had  the  right  to        institute a suit for recovery of arrears of salary as he was        dismissed illegally.  It is unnecessary, therefore, to refer        to the elaborate discussion of the law in this respect to be        found  in  the judgment of the learned Judges  of  the  High        Court.        When  this appeal came on for hearing before this court  and        the  appellant  had been heard the Attorney General  in  the        course  of  his  argument bad contended that  the  order  of        suspension  of August 1944 subsisted although the  order  of        dismissal  had been declared illegal by the Civil Judge  and        all  that  the  appellant was entitled  to  was  subsistence        allowance and not salary so long as the order of  suspension        remained effective.  This plea was not taken in the  written        statement filed in the trial court, nor was there any  issue        framed in this respect.  The Attorney-General        (1)  [1964] S.C.R. 780,        396        asked  for time to file an additional written  statement  on        behalf  of the respondent.  This court allowed time for  the        respondent to do so and the appellant was also given time to        reply to any additional written statement filed on behalf of        the respondent.  The respondent filed the additional written        statement   and  the  appellant  filed  his  reply  to   it.        Thereafter  the  appeal came on for bearing  again  and  the        learned  Advocate for the appellant made his submissions  on        the  additional written statement and  the  Attorney-General        replied to the same.        So far as the payment of excess court fee is concerned,  the        learned  Advocate for the appellant did not urge this  point        in  his  opening argument but urged it in  reply  after  the        Attorney-General bad concluded his argument.  Apart from the        question as to whether the Advocate can be allowed to urge a        point like this in reply when no submission had been made by        him  in  his  opening, it seems there is  no  merit  in  the        submission  made  by the Advocate.  The court fee  had  been        paid on Rs. 1,20,000 which -was claimed as damages.  At  the        time  the  suit was instituted the law  as  then  understood        permitted  such  a claim to be made.  The  decision  of  the        Privy  Council,  however, made it clear that no  such  claim        could  be mad e and all that a Government servant could  ask        for  was  a  declaration that the  order  of  dismissal  was        illegal  and that he still continued to be a member  of  the        Civil Service.  The decision of the Privy Council clarifying        the  position could not be a ground for refund of court  fee        when  at the time it was paid it was in accordance with  the        law as then understood.  Indeed the appellant did not appeal        or file an application against the order of the Civil  Judge        refusing  to pass an order of refund.  In the High Court  he        did  not ask for this relief on the basis of  any  statutory        provision.   He  invoked  the inherent powers  of  the  High        Court.   The Court Fees Act contains certain provisions  for        refund  of  court  fee paid by a party  but  admittedly  the        present case is not covered by any of those provisions.   It



      seems,  therefore, that the High Court in the  circumstances        of the present case rightly refused                                    397        to  order  a  refund of the excess court  fee  paid  by  the        appellant.   It  also does not appear that the  Civil  Judge        acted illegally in refusing to order a refund.        On  the additional written statement filed in this court  by        the  respondent a question has arisen whether the  order  of        suspension  was valid and during the period it was in  force        the appellant could recover arrears of salary.  The  learned        Advocate  for  the  appellant contended  that  an  order  of        suspension is a penalty under rule 49 of the  Classification        Rules  and  it was against all sense of natural  justice  to        impose  a penalty upon a Government servant pending  an  in-        quiry against him under rule 55 of the said rules.  An order        imposing  the penalty of suspension was an appealable  order        under rule 56 of the Classification Rules and under rule  59        of  the  said  rules, an appellate authority  was  bound  to        consider whether the facts on which the penalty was  imposed        had  been  established  and whether  those  facts  disclosed        sufficient grounds for imposing such a penalty.  Rule 54  of        the Fundamental Rules authorises a revising or an  appellate        authority, when it finds that the Penalty of suspension  was        unjustified  or  not  wholly justified,  to  make  an  order        granting  to  the Government servant his full  pay  and  any        allowance  to  which he was entitled if  he  was  honourably        acquitted  and  in other cases such proportion  of  pay  and        allowances as it may prescribe.  The penalty of  suspension,        it was urged, involved serious loss in the matter of  salary        and allowances and to impose this penalty pending an inquiry        was to prejudge the case against a Government servant and in        effect to make his right of appeal a meaningless remedy.  It        was  pointed  out  that in some of the  rules  framed  by  a        Government  or  quasiGovernment  authority  the  penalty  of        suspension pending an inquiry was specifically provided for,        such  as  rule 95 of the Bihar and Orissa Service  Code  re-        ferred to in Abdul Majid’s case and rule 1711 of the  Indian        Railway  Establishment  Code.  On behalf  of  the  appellant        reference  was also made to certain decisions to the  effect        that as between master and servant, the master had no  power        of suspension unless        398        there  was  an express term to that effect in  the  contract        between them.        The   Attorney-General   conceded  that   apart   from   the        Classification  Rules and the Fundamental Rules he  was  not        aware  of  any  other  rules  under  which  the  penalty  of        suspension  could be imposed upon a Government servant.   He        also  conceded that under the Classification Rules an  order        of  suspension was a penalty.  He further conceded  that  as        between  master  and  servant the former  had  no  power  of        suspension  unless  the terms of the contract  between  them        permitted it or a statute or a rule provided for it but this        principle, he said, did not apply to a person in the service        of  the Crown in India.  He, however, contended  that  under        rule 49 of the Classification Rules a penalty of  suspension        could  be imposed pending an inquiry.  There was nothing  in        the rule itself which enjoined that a penalty could only  be        imposed at the conclusion of an inquiry.  The penalty  could        be  imposed  for good and sufficient reasons  which  may  be        based  on  materials already existing  pending  an  inquiry.        After  the inquiry there may be the imposition of a  severer        penalty  or a definite period of suspension may be fixed  or        there  may be cancellation of the order of  suspension.   No        doubt there was a right of appeal against an order  imposing



      a   penalty  of  suspension  pending  an  inquiry  but   the        provisions  of  rule  54 of the Fundamental  Rules  did  not        necessarily  lead  to  the conclusion that  the  penalty  of        suspension  could only be imposed after an inquiry.   Clause        (a)  of  the said rule might contemplate a  case  where  the        penalty  had  been imposed after an inquiry but  clause  (b)        could  cover  a  case where the  penalty  had  been  imposed        pending an inquiry.  In the present case, he said, there was        no contravention of any principle of natural justice as  the        appellant  had an opportunity of explaining  the  accusation        made  against  him.   The letter  of  the  -Commissioner  of        Lucknow Division with its annexure, marked Exhibit A in  the        trial  court, clearly showed that the  Deputy  Commissioner,        Lakhimpur Kheri had recorded statements of persons with ref-        erence to three cases and the appellant saw him in        399        connection  therewith.  He admitted the facts but  tried  to        explain  them.  He, however, declined to give his  statement        in  writing.  The order of suspension made against  him  was        based on materials of which he was fully aware.        In  the alternative the Attorney-General urged that  in  the        year 1944 the appellant was a member of the Civil Service of        the Crown in India holding office during the pleasure of the        Crown.   There was, therefore, inherent power in  the  Crown        and  its  representative  to pass  an  order  of  suspension        against    the   appellant   pending   an   inquiry.     The        Classification  Rules  and  Fundamental  Rules  were  merely        directions for general guidance and they did not  constitute        a  contract  between the Crown and its servants.   For  this        proposition he referred to the observations of Lord Hobhouse        in the case of Shenton v. Smith(1).  He also relied upon the        following  observations  of  Lord Roche in the  case  of  B.        Venkata Rao v. Secretary of State for India in Council (2) .        "Section  96-B in express terms states that office  is  held        during  pleasure.   There  is, therefore, no  need  for  the        implication of this term and no room for its exclusion.  The        argument for a limited and special kind of employment during        pleasure  but with an added contractual term that the  rules        are  to be observed is at once too artificial and  too  far-        reaching  to commend itself for acceptance.  The  rules  are        manifold in number and most minute in particularity, and are        all  capable of  change.............................  Incon-        venience  is  not  a  final consideration  in  a  matter  of        construction, but it is at least worthy of consideration and        it  can  hardly be doubted that the suggested  procedure  of        control  by the Courts over Government in the most  detailed        work  of  managing  its  services  would  cause  not  merely        inconvenience but confusion".        In the courts below the principal question for consideration        was  whether the appellant could recover arrears  of  salary        having  been illegally dismissed.  It was not  pleaded  that        the order of suspension was        (1)  [1895] A.C. 229.        (2)  L.R. 64 I.A. 55.        51        400        valid  and during the period it was in force  the  appellant        could  not recover arrears of salary and no  specific  issue        was  framed in this respect.  If the decision of this  court        in  Abdul  Majid’s  case had been available  to  the  courts        below, they would have held that the appellant was  entitled        to  recover  arrears of salary when he  had  been  illegally        dismissed and they would have bad further to decide  whether        the  order of suspension was valid and during the period  it        was in force the appellant could recover arrears of  salary.



      On the additional written statement filed by the  respondent        in  this  court,  the submissions of the  Advocate  for  the        appellant and the Attorney-General would require examination        and  it  might have been necessary to consider  whether  the        case  should not be remanded to the court of trial.   It  is        unnecessary,   however,  to  record  a  decision  on   these        submissions  having  regard to the attitude adopted  by  the        Advocate  for the appellant.  He objected to the case  being        remanded  as  such a course would involve the  appellant  in        heavy  expenditure and harassment.  The appellant  preferred        to give up his claim for arrears of salary less  subsistence        allowance  paid  to  him  from the  date  of  the  order  of        suspension  until the date of the order of  dismissal.   He,        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. 401 State  of  Madhya Pradesh(1).  On behalf  of  the  appellant reliance  was placed on the case of  Provincial  Government, Central  Provinces and Berar through Collector,  Amraoti  v. Shamshul Hussain Siraj 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 Attorney-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 arrears  of salary from the 25th of November, 1944, to  31st December, 1947. The  appeal  is  accordingly  allowed  in  part  with  costs throughout and the decree of the courts below is set; aside. The  plaintiff’s suit is decreed for arrears of salary  from the  25th of November, 1944, to the 31st of December,  1947, inclusive.   The appellant had claimed Rs.  16,810-8-0  less subsistence  allowance already drawn as arrears of pay  from the  24th of August, 1944, to the 31st December,  1947.   As his  claim  for arrears of salary from the 24th  of  August, 1944, to the 25th of November, 1944, is given up, the  total salary  payable to him during this period  less  subsistence allowance  already drawn, must be deducted from the  sum  of Rs. 16, 810-8-0.  The judgment of the High Court as well  as the additional written statement filed by the respondent  in this court show that subsequent to the decree passed by  the



Civil  Judge the appellant was treated as  under  suspension until he was dismissed by a fresh order of (1)  A.I.R. 1952 Nag. 170. (2)  I.L R. 1948 Nag. 576; A.I.R. (36) 1949 Nag. 118. 402 dismissal  and that he has been paid  subsistence  allowance for  the entire period.  Such subsistence allowance  as  has been paid to the appellant from the 25th of November,  1944, to  the 31st December, 1947 inclusive, must,  therefore,  be credited  to  the respondent and the same must  be  adjusted against the salary claimed by the appellant.  A decree  will accordingly  be prepared stating the amount  recoverable  by the appellant. The appellant was permitted to appeal in forma pauperism  As he  has  succeeded  in  the  appeal,  the  Registrar   shall calculate the amount of court fee which would have been paid by  the appellant if he had not been allowed to appeal as  a pauper  and  incorporate it in the decree.   The  court  fee shall  be  paid  by  the appellant  and  the  same  will  be recoverable by the Government of India from him and shall be the first charge on the amount-decreed to him.  Under Rule 7 of Order XIV of the Rules of this Court., the appellant will be  allowed  the fees paid by him to his Advocates,  in  the taxation of costs.