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PETITIONER: STATE OF ORISSA AND ORS.

       Vs.

RESPONDENT: SHIVA PARASHAD DAS AND ORS.

DATE OF JUDGMENT22/02/1985

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) DESAI, D.A. SEN, A.P. (J)

CITATION:  1985 AIR  701            1985 SCR  (2) 962  1985 SCC  (2)  65        1985 SCALE  (1)287

ACT:       Constitution of India, 1950, Article 311 (1)-Scope or- Suspension order  passed against a government servant is not violative of Art 311(1).       Civil Services-       Orissa Civil Services (CCA) Rules, 1962, Rule 12-Govt. servant-Suspension  of-Whether   can  be   suspended  by  an authority subordinate to the appointing authority.

HEADNOTE:      The respondent  in C.A.  No. 201 of 1977, was appointed as a  Forester by  the Conservator of Forests. He was placed under suspension  pending enquiry into charges of negligence of duties  on 26.2.1969 by the District Forest Officer under whom he  was working.  He challenged  before the  High Court under Art.  226 the  validity of  the order of suspension on the ground  (i) that  the order was made in contravention of Art. 311  of the  Constitution; and  (ii) that  it was  also violative  of   Rule  12   of  the   Orissa  Civil  Services (Classification, Control  and Appeal)  Rules, 1962. The High Court while  rejecting the  second contention  held that the order was  violative of  clause (1)  of Art, 311 inasmuch as the respondent  could not  have been  validly suspended from service by  the District Forest Officer, who is an authority subordinate to  the authority which originally appointed him namely the  Conservator of  Forests.  The  question  of  law raised in C.A. No. 200 (N)/71 also identical.       Allowing the appeals, ^      HELD: (1)  An order  of  suspension  passed  against  a Government servant  pending disciplinary  enquiry is neither one of dismissal nor of removal from service within Art. 311 of  the  Constitution  Clause  (1)  of  Art.  311  will  get attracted only  when a  person who  is  a  member  of  Civil Service of  the Union  or an  All India  Service or  a Civil Service of  a State  or one who holds a civil post under the Union or  a State  is ’dismissed’  or ’removed from service. The provisions  of  the  said  clause  have  no  application whatever to  a situation where a Government servant has been merely placed under 963

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suspension pending  departmental enquiry  since such  action does not  constitute    either  dismissal  or  removal  from service. [964E-G]       (2)  The High  Court was right in rejecting the second contention of  the respondent.  Rule 12  of the  Rules  lays down that  any authority  empowered by  the Governor  or the appointing authority  in that  behalf may place a government servant under  suspension, where  a disciplinary  proceeding against him  is either  contemplated or  is pending.  In the instant case, it is not in dispute that under a Notification issued by  the State  Government in  exercise of  the powers conferred by  Rule 11  of the  Rules,  the  District  Forest Officer  was   constituted  "the  appointing  authority"  in respect of  Foresters  with  effect  from  7.5.1962.  It  is therefore clear that on the date on which the impugned order of suspension  was  passed-26.2.1969,  the  District  Forest Officer under whom the respondent was working in the Ghumsur North Division  was fully  competent to  pass  the  impugned order of suspension. [964H; 965A-C]       Mohammad  Ghouse v.  State of  Andhra  Pradesh  [1957] S.C.R, 414 followed.

JUDGMENT:       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 200 (N) of 1971.       From  the Judgment  and Order  dated 1. 5. 1970 of the Orissa High Court in O. J. C. No. 10/70.                             AND   Civil Appeal No. 201 of 1971 From the Judgment and Order dated 28.4.70 of the Orissa High Court in O.J.C. No. 10170.       G.  S. Chatterjee  for  the  appellants  in  both  the appeals.       Ex-Parte for the respondents in both the appeals.       The Judgment of the Court was delivered by       BALAKRISHNA  ERADI J.  In these  two appeals  filed by Special leave  against two  judgments  of  the  Orissa  High Court, the  question raised  is identical namely, whether an order of suspension from service passed against a Government servant falls  within the  scope and  purview of Art. 31] of the Constitution.  The judgment  appealed against  in  Civil Appeal No.  201 of 1971 is prior in point of time and in the judgment under  challenge in  C. A. No. 200 of 1971 the High Court has  merely followed  the former  judgment. We  shall, therefore, refer only to the facts relating to C. A. No. 201 of 1971. 964       The  respondent-Shri Ram  Parshad-was appointed  as  a Forester by  the Conservator of Forests, Berhampur, District Ganjam, on  17.7.1952.  Subsequently,  while  working  as  a Forester under  the District  Forest Officer,  Ghumsur North Division, the  respondent was  placed under suspension by an order dated  26 2.1969  passed by the said District Officer, pending enquiry  into charges  of negligence  of duties  The respondent thereupon filed a Writ Petition in the High Court of Orissa under Art. 226 of the Constitution challenging the order of suspension passed against him on the ground that it was made in contravention of Art. 311 of the Constitution as well as rule 12 of the Orissa Civil Services (Classification Control and  Appeal) Rules,  1962 (hereinafter  called  the’ Rules’). The High Court by its impugned judgment allowed the Writ Petition  and quashed  the order  of suspension holding the same  to be  in contravention  of Art.  311 (1)  of  the Constitution. The  High Court took the view that inasmuch as

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the  respondent  had  been  appointed  as  Forester  by  the Conservator of  Forests, he  could  not  have  been  validly suspended from  service by  the District Forest Officer, who is an  authority subordinate  to the Conservator of Forests. The correctness  of this  view taken  by the  High Court  is called in  question by  the appellant-the State of Orissa in these two appeals.           An order of suspension passed against a Government servant pending  disciplinary enquiry  is  neither,  one  of dismissal nor of removal from service within Art. 311 of the Constitution. This  position was  clearly  laid  down  by  a Constitution Bench of this Court in Mohammed Ghouse v. State of Andhra(1).  It is  unfortunate that this decision was not brought to  the notice  of the  learned Judges  of the  High Court. Clause (l) of Art. 311 will get attracted Only when a person who  is a  member of Civil Service of the Union of an All India  Service or  a Civil Service of a State or one who holds a  civil post under the Union or a State is ’dismissed or ’removed’ from service. The provisions of the said clause have  DO   application  whatever  to  a  situation  where  a Government servant  has been  merely placed under suspension pending departmental  enquiry since  such  action  does  not constitute either  dismissal or  removal from  service.  The High Court  was, therefore,  manifestly in error in quashing the order of suspension passed against the respondent on the ground that  it was  violative of  clause (1) of Art. 311 of the Constitution.           Rule 12 of the Rules lays down that the appointing authority (1) [1957] S.C.R. 414. 965 or any  authority to  which it  is subordinate  or authority empowered by  the Governor  or the  appointing authority  in that behalf may place a Government servant under suspension, where  a  disciplinary  proceeding  against  him  is  either contemplated or  is pending. It is not in dispute that under a Notification issued by the State Government in exercise of the powers  conferred by  Rule-11 of the Rules, the District Forest Officer was constituted "the appointing authority" in respect of  Foresters  with  effect  from  7.5.1962.  It  is therefore clear that on the date on which the impugned order of suspension  was  passed-26.2.1969,  the  District  Forest Officer under whom the respondent was working in the Ghumsur North Division  was fully  competent to  pass  the  impugned order of  suspension. Hence  the High  Court  was  perfectly right in rejecting the further contention advanced before it by the  respondent herein  that the impugned action had been taken in violation of the provisions of Rule 12.       We  accordingly allow  this appeal  C- A.  No. 201  of 1971, set  aside the  judgment of the High Court and dismiss the Writ  Petition in  O. J.  C. No. 10 of 1970. The parties will bear their respective costs for this Court,       In  the light  of the legal position enunciated above, it follows  that C.  A. No.  200 of  1971  has  also  to  be allowed. The  judgment of  the High Court is accordingly set aside and the Writ Petition filed by the respondent therein- O. J.  C. No.  101 of  1970 will  also stand  dismissed. The parties will  bear their  respective costs  in  this  appeal also. M.L.A.                                       Appeal allowed. 966