TMI Blog1974 (4) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 55 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 purpose 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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.( [1955] 2 S.C.R. 391) 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 11th April, 1963 ceased to exist and it did not revive thereafter by the subsequent setting aside of the order of dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 continuing the suspension. The third part of the impugned order cannot therefore be sustained by reference to subrule 5(a) of ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appropriate 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. We therefore, partly allow the appeal and issue a writ of mandamus quashing and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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