TMI Blog2019 (9) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... al proceeding has been initiated but, could not be concluded or was dropped or in any manner does not come to its finality, the delinquent Government employee cannot be deprived of his full pay and allowances on account of non-completion of the inquiry proceeding or non- submission of the inquiry report. (iv) If the departmental proceeding has been rendered infructuous and not converted under Rule 43(b) of the Bihar Pension Rules and no inquiry report has been submitted, in that circumstances, the retired Government servant will be entitled to the entire salary. (v) If the departmental proceeding has been initiated, the inquiry proceeding has been concluded and in case any substantive order has been passed after superannuation, which cannot be upheld on account of cession of relationship of master and servant, in that circumstance, the competent authority is empowered to take a decision on the principle of Rule-97(3) read with Rule 97(5) of the Bihar Service Code. (vi) If the Government servant has been prosecuted departmentally and the order of punishment has been passed while in service and he has filed an appeal but by that time he superannuates and the appeal is remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shra, Advocate, Mr. Snaket, Advocate C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY) We have heard Mr. Amrendra Arya, in person, who is the son of late Smt. Vidya Sinha - original petitioner, Mr. Mrigank Mauli, Amicus Curiae, assisted by Mr. Prince Kumar Mishra and Mr. Sanket, learned Advocates and Mr. S.D. Yadav, learned Additional Advocate General-9 assisted by Mr. Rajeshwar Singh, G.A.-10, on behalf of the State. 2. This case has been referred before this Full Bench in view of the order dated 24.07.1996, though in this order no term of reference has been mentioned, but the order reflects that the Division Bench was of the view that where a Government servant, against whom a departmental proceeding has been initiated, is entitled to full pay and allowances during the period of his suspension, if he is ultimately exonerated. If that be so, without concluding a departmental proceeding, it would be arbitrary to deprive him of his full pay and allowances during the period of suspension under Rule 97(3) of the Bihar Service Code. If the disciplinary proceeding is rendered infructuous by reason of the fact that the concerned Government servant superannua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the departmental proceeding be concluded within a period of three months from the date of receipt of the copy of the order and if the departmental proceeding is not concluded within the aforesaid period, the order of suspension passed against the petitioner would stand revoked. It was further directed that the petitioner shall render all cooperation in the smooth conduct of the departmental proceeding, failing which the same may be heard and disposed of ex parte. As the departmental proceeding could not be concluded in terms of the order passed in the writ petition, the suspension order ought to have been revoked, ultimately, on filing of contempt petition vide M.J.C. No.877 of 1994, the order of suspension was revoked vide order dated 01.05.1994, but the departmental proceeding continued, ultimately the original writ petitioner superannuated from the service on 30.11.1994, at the final stage of the departmental proceeding. After superannuation, vide memo no.23 dated 03.01.1995 the petitioner was visited with the punishment of censure. The order of punishment was challenged by the original writ petitioner in C.W.J.C. No.5982 of 1995, which was allowed in the background of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order denying the salary for the suspension period is legal and proper. The learned Single Judge has held in the following terms:- There is no doubt that the provision is applicable only when the Government Servant is to be reinstated in service, but when the Government servant has already superannuated, there is no question of his reinstatement and, therefore, the provisions, in terms, is not applicable. However, that does not mean that on his superannuation from service, the Government servant under suspension on the date of superannuation, will ipso facto become entitled to full salary and allowances for the suspension period and ultimately the learned Single Judge has recorded a finding in the following manner:- In my opinion, in such a situation, it would be permissible to the competent authority to consider whether the person should be paid salary and allowances for the suspension period after, of course, giving opportunity of hearing to him. There cannot be any doubt that any order denying salary and allowances for the suspension period is not a penalty within the meaning of the Service Rules but, nevertheless, is penal in nature and effect and, therefore, cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly for dealing the case of retired Government servant has been added. The original Rule-54 was replaced by new Rule-54 in a different structure and formulation supported by Rule-54 (A) and (B). The other Indian States, in tune with the amendment made in the Fundamental Rules governing the employees of the Central Government, have also amended their Service Rules, inserting identical provision as that of Rule-54(B) in their respective Service Rules. 8. Mr. Mrigank Mauli, has drawn the attention of this Court to the Punjab Civil Services Rules, Volume-1, more particular Rule-7.3. B; Rule-54(B) of the Fundamental Rules of Madhya Pradesh; Rule 54(B) of the Fundamental and Subsidiary Rules of Assam and Rule-54(B) of the Fundamental Rules of Andhra Pradesh and submitted that these amendments have been brought with the line of the amendment made in the Fundamental Rules of the Central Government. He further submitted that the State of Bihar has not amended its Service Code in the identical term as that of Rule-54(A) and (B), which have been included in the Fundamental Rules of the Central Government and submitted that in view of the amendment effected in the respective Services Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the order of suspension was withdrawn. In that case Dr. Lakshmi Narain Singh had claimed the salary for the entire period and the competent authority had held that he would not be entitled to any additional payment beyond the subsistence allowance, which he had already drawn and the period he was under suspension will be treated to have been in continuous service only for the purposes of pension. It has further been submitted that paragraph no.4 of the aforesaid judgment itself depicts that learned counsel for Dr. Lakshmi Narain Singh had taken a specific plea that Rule 97(3) cannot apply in a case of retired Government servant for the reason that relationship of master and servant comes to an end on his superannuation and the person concerned cannot be held to be a Government servant within the meaning of Sub-Rule 5. It has further been submitted that the argument raised by learned counsel for Dr. Lakshmi Narain Singh with respect to the event when a Government servant superannuated, can the proceeding be continued or initiated after his or her superannuation from the service. Hence, it would be considered that the aforesaid judgment is dealing with a situation that the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period of suspension, upon being reinstated and not otherwise. Such reinstatement, when post-retirement, would also mandate an order under FR 54-B(1). It would equally apply to cases of reinstatement after premature retirement. In such cases, the competent authority should pass any order as to whether or not the suspension period shall be treated as a period spent on duty. The said rule reads as under:- ... FR 54-B (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order- (a) Regarding the pay and allowance to be paid to the Government servant of the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and (b) Whether or not the said period shall be treated as period spent on duty... 14. Mr. Mauli, learned advocate, has also placed reliance on three judgments of Calcutta High Court, namely:- (i) Babu Ram Pramanick vs. the Assistant Security Commissioner, R.P.F. S.E. Railway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authority. The Court has held that when the Government servant has been exonerated of the charges, he cannot be deprived of any portion of his pay for the period of suspension. Further held that rule or regulation which may provide that during the period of suspension an employee would be entitled only for subsistence allowance, dehors the ultimate result of the inquiry proceedings. This grey area, either should have been determined by the Court or the authorities should have been asked to determine the claim with reference to the prevailing rules/regulations. 17. Lastly he has placed reliance on the decision rendered in the case of Balvantray Ratilal Patel vs. State of Maharashtra reported (1968) 2 SCR 577 = A.I.R. 1968 S.C. 800, on the proposition that general principle is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule, the employee is entitled to his full remuneration for the period of his inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection. 19. Mr. Mrigank Mauli, has submitted that no power has been given by the Legislature to deal with the situation of period of suspension after the superannuation from the service as at the earlier stage identical Rule 54 of the Fundamental Rules was there, but Rule-54 has been amended with a view to deal with the different situations including the situation after retirement of Government servant from the service and he has placed reliance on Rule-54 of the Fundamental Rules to show that earlier Rule-54 was pari materia to Rule-97. It will be relevant to quote earlier Rule-54 of the Fundamental Rules. F. R. 54-B. (1) When a Government servant who has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of suspension ending with reinstatement or in the event, the proceeding could not be completed on account of superannuation. 21. He further submits that this type of provision is not there either in the Bihar Service Code or anywhere by way of Statutory provision dealing with the right and entitlement of salary for the suspension period for retired Government servant. In absence of the same, the power cannot be exercised to decide the entitlement of salary or allowance for the period of suspension or in what manner the period will be treated for the purposes of future entitlement. 22. The same view has been reiterated in the case of S.K. Gupta (supra). 23. He further submitted that after superannuation, the jural relationship of master and servant does not exist. Further submitted that unless there is a specific provision, to deal with the period prior to retirement, the competent authority cannot have jurisdiction to take away the entitlement of the entire salary pertaining to the period of suspension. He next submitted that in absence of such power the delinquent employee will be entitled to full salary and the entire period of suspension will be treated to be in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment has not only power to exercise the power under Rule-97 of the Bihar Service Code during the subsistence of service, but even after the cessation of service, or on his superannuation, the principle mentioned in Rule-97 will equally applicable in the matter of a retired Government employee and further submitted that the delinquent Government servant will be entitled to full salary in the event if he has been exonerated or the order of suspension is unjustified as has been mentioned in Rule 97(2) of the Bihar Service Code. 26. Before giving the answer to the questions which have been framed hereinabove, the earlier judgments which have been passed in connection with Rule 97 of the Bihar Service Code by this Court and the Jharkhand High Court are to be taken into consideration. In this connection, it will be appropriate to consider the decision rendered in the case of Dr. Lakshmi Narain Singh (supra) as the facts of the aforesaid case is by and large near to the facts of the present case and for that it will be necessary to advert to the necessary facts of the said case. Dr. Lakshmi Narain Singh superannuated from the service on 31.03.1979 as Civil Assistant Surgeon. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On conflict of view, on the issue of payment of full salary for the period of suspension, the matter was referred to the Single Judge and the learned Single Judge after analyzing the provisions of Rule 97 of the Bihar Service Code in extenso has held that Sub-Rule 2 and 3 of Rule-97 is divided in two categories; first where the competent authority is of the opinion that the Government servant has been fully exonerated or in the case the suspension, it was wholly unjustified depriving full payment, and second category covers all other cases. In the first case, the Government servant is entitled to full pay and allowance, while in the second, the competent authority would take decision as to the entitlement of quantum of payment of salary and allowance for the period of suspension. While taking decision in the matter falling under the category of Sub-Rule 3 of Rule-97, the competent authority would consider the facts and circumstances of the case. Rule-97(4) makes it very clear that in a case falling under Clause-2 the period of absence of duty will be treated as a period spent on duty for all purposes, but it is not the same as Sub-rule 5 of Rule-97 stipulates that those cases falli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h all other cases are included. In the first case the Government servant is entitled to the full pay and allowance, while in the second, the competent authority has to take a decision as to the proportion of the pay and allowance to be paid to him. It need not be said that while exercising his discretion the competent authority is expected to follow the rule of just and fair play and should, therefore, take into account all factors which may be relevant. The principle laid down by Sub-rules (2) and (3) covers all cases of disciplinary proceeding. It cannot be assumed that the rules were framed to apply only to some of such cases, leaving the other cases uncovered. While deciding the question as to whether a given case comes under the first category or the second, it has to be appreciated that the second category is residuary in nature, and if a case is held to be not included in the first one, it must be deemed to belong to the second. The further question in regard to cases of the second category has to be answered with reference to Sub-rule (5). 27. This Court would also like to consider the judgment of Jharkhand High Court rendered in the case of Anant Pandey (Supra) where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in Sub-rule (1), is of the opinion that the Government Servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe; Provided that the payment of allowance under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under Clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose; Provided that if the Government servant so desires such au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t time passed under suspension adjudged as specific penalty does not count. 100. If a Government servant, who has been suspended, pending enquiry into his conduct, is reinstated, but with forfeiture or any part of his allowances for the period of suspension, this period does not count (save with the special sanction of the Head of the Department), unless the authority who reinstates the Government servant expressly declares at the time that it shall count. 30. Rule-97 (1) is a general provision in the sense that it comprehends the situation when the Government servant is dismissed, removed or suspended, reinstated, the authority competent shall pass the order of reinstatement and make specific order regarding payment of salary and allowances as well as the period of suspension shall be treated to be spent on duty or not. In Rule-97, three contingencies have been stipulated; one is dismissal, second is removal and third is suspension, in the event of reinstatement the question of payment of subsistence allowance will be taken into consideration by the authority. Let us examine the situation, the Government servant has been suspended during the proceeding, later on, the suspen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of departmental proceeding for the purposes of proving of the charges against the Government servant. 32. Rule-99 and 100 of the Bihar Pension Rules provides, time spent under suspension pending inquiry will be taken into account, if the suspension is immediately followed by reinstatement, but time spent under suspension has been held to be penalty, would not be counted. In a situation when the Government servant is suspended, pending inquiry into his conduct, is reinstated, but with forfeiture of any part of his allowances for the period of suspension, this period would not be counted, save and except with the special sanction of the head of the department, and unless the authority who reinstates the Government servant expressly declares, the suspension period shall be counted. So, Rule-99 and Rule-100 are dealing with the situation which has been mentioned in Rule-97(2) and (3) as well as Rule-100 specially empowers the competent authority even after retirement, he will have a jurisdiction to decide the entitlement of benefit for the period under suspension pending departmental inquiry. Rule-99 and 100 of the Bihar Pension rules, itself recognizes the power of the disciplinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court has taken a different view having held that where the authority concludes that the suspension was wholly unjustified, the Government servant shall be given full pay and allowances as if the order of suspension had not been passed. It has further been held that the High Court misconstrued the provisions of Rule 97, gave direction for payment of full salary and allowance as a consequence of the suspension being revoked. The disciplinary proceedings have been kept in abeyance pending the conclusion of the criminal trial. It is only after the conclusion of the departmental inquiry that the competent authority will have to decide in terms of Rule 97 how the period of suspension should be treated and whether it is liable to be treated as a period spent on duty. The decision will be taken on the pay and allowances which should be allowed. Hence, the directions of the High Court at this stage were contrary to Rule 97. 34. It will be relevant to quote paragraph no.9 of the said judgment, which is as follows:- 9. Sub-rule (1) of Rule 97 indicates that where a government servant is suspended, the authority competent to order the reinstatement has to consider and make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r considering explanation, if any, filed by the delinquent Government servant. 37. Incidental, but important point has been raised by Mr. Mauli, learned advocate, who has submitted that the judgment of Dr. Lakshmi Narain Singh (supra) is a judgment of three Judges Bench as after difference of opinion the matter was referred to the third Judge, so it will be treated to be a Larger Bench Judgment of three judges and has placed reliance on Clause-28 of the Letters Patent of Patna High Court, which is as follows:- 28. Single Judges and Division Courts. - And we hereby declare that any function which is hereby directed to be performed by the High court of Judicature at Patna, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters to patent of any High Court. 39. By and large dealing with an identical situation, in the event of conflict of view of two Judge of the Bench, the matter is referred to third Judge under Clause-28 of the Letters Patent of Patna High Court and the issue is to be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it, which is similar to the provision of Section 98 of the Code of Civil Procedure, but in Section 392 of the Code of Criminal Procedure, the opinion of the third Judge will be the final opinion irrespective of the opinion of members of the earlier Bench. A Full Bench shall be a Bench of any number not less than three Judges. Clause-28 of the Letters Patent of Patna High Court talks about the majority of the opinion in terms of the Judges, who have heard the case including those who first heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal, the learned Senior Subordinate Judge decided that the plaint discloses the cause of action against both defendants, he accordingly, accepted the appeal and remanded the case to the trial Court for decision on merits. On second appeal, the decision was affirmed by the learned Single Judge. The defendants preferred two separate appeals under the Letters Patent, the Division Bench differed on the question whether the plaint discloses a cause of action. Mr. Justice Tek Chand was of the opinion that the decision of the learned Single Judge must be maintained and the appeal must be dismissed, whereas Mr. Justice Blacker was of the opinion that the plaint discloses no cause of action and that the appeal should be accepted and the order of the Trial Court is required to be restored. In such circumstance, the matter was referred to the third Judge in terms of Clause- 26 of the Letters Patent, the third Judge considered the judgment of Allahabad High Court and other High Courts and the practice in Allahabad High Court, in such cases, is for the referee Judge to return his opinion to the Bench concerned for pronouncement of judgment whereas the practice in the Lahore High Court is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd Judge for its opinion. In that case, the scope of Clause-36 of the Letters Patent was considered. It has been held that it is evident that upon there being a difference of opinion of the Judges of a Bench, comprising an even number of Judges, a reference shall be made only to the extent of the difference and such aspect shall be placed before another Judge or a Bench of more than one Judge, provided that the differing Judges are not party to any Bench taking up the reference. The ultimate decision on the relevant aspect would be the majority view thereon. But, the Court has further modified in the manner that in practice, upon there being a difference of opinion in a two-Judges Bench, the point of difference is referred to a third Judge to concur with the opinion of one of the two original Judges for a majority view being obtained on the point of difference. If there are only two possible answers to a question and there is a difference of opinion in a two-Judge Bench, the reference to a third Judge would suffice to achieve the majority view on the point. However, on the point of difference, the majority opinion may not be achieved upon a reference being made to a third Judge for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thod of referring to the third judge in the case of a difference of opinion between the two judges. Whether the first method is adopted or the second, opinion of the majority will be decisive. In this case there is a formal reference to a third judge to ascertain his opinion. His is the deciding voice. He turns the scales. The third judge is the full bench. Not alone. But along with two others who first heard the case. Whether the three judges sit at the same time or at different times-two at one time, and the third hearing the matter later on a difference of opinion-does not make much difference. As has happened in this case, the two judges have differed. So the case has come to me, the third judge. The two judges have expressed their opinion. I, am now called upon to give my opinion. The opinion of the majority will prevail. All that happens is that the third is segregated from the two and does not sit with them. He comes in later on when there is a difference of opinion between them. In all cases it is the theory of numbers which is the foundation of the doctrine of stare decisis. Majority is a term signifying the greater number. Counting of heads underlies the theory' of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but added by way of filing amendment petition. After detailed discussion, it has been held that referee Judge will not have jurisdiction to give his opinion beyond the points referred, additional points raised would not be decided by referee Judge, in the manner that Clause- 36 of the Letters Patent provides for resolution of difference of opinion between the Judges of the referring Court. It will be relevant to quote paragraph nos. 25, 26 and 32 of the aforesaid judgment, which reads as under:- 25. It, therefore, follows that the Judges hearing the reference under clause 36 are required to express their opinion upon the points of difference formulated by the referral Judges and not on the points, which were not raised or were raised and dealt with by the referral Judges. This proposition has been clearly articulated by the full bench of Lahore High Court in Royal Calcutta Turf Club through Acting Secretary D.J. Leckie v. Lala Kishan Chand Manchanda [AIR (30) 1943 Lahore 84] as under:- .....Even if the jurisdiction of the referee Judge is, therefore, confined to a decision of the point or points of difference it must follow that the jurisdiction for deciding the whole ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he third Bench and after the decision when the matter again went back for final pronouncement one of the members of the referring Bench was not available. The question arose as to whether the new Division Bench would have jurisdiction to adjudicate, decide and pronounce the majority view on the point referred, the Court held, mere pronouncement of final opinion by any Division Bench, consisting the old member or new member, would not effect jurisdiction to pronounce the majority opinion after return of the opinion of the referee Judge. 52. The facts of that case are that Firm Ladhuram Rameshwardayal sought a relief to quash the Electoral Roll and also to quash the Election programme in connection with an election to the Agriculture Market Committee of Krishi Upaj Mandi Samiti, Shivpuri. The Division Bench comprising of Justice Raina and justice Bhachawat, heard the matter, but they differed. In the opinion of justice Raina, the petition was to be dismissed and in the opinion of justice Bhachawat the petition was to be allowed. As per Rule-11 of Chapter 1 of the Madhya Pradesh High Court Rules, Justice Lodha was appointed as third Judge to give his opinion, he partly allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in opinion. It is that point alone, which is referred to the third Judge for decision and it has been held that if the referee Judge decides apart from the points referred, on which the Judges of Division Bench have not differed or if the referee Judge decides the whole case, that part from his opinion or order or judgment must be read as opinion on the point or points on which the Division Bench were divided in opinion, the rest to be ignored for want of jurisdiction. By way of clarification, the Court has dealt with this provision by way of giving example, if in an appeal A, B and C are three parties, claiming their title over a piece of land and two Judges of the Division Bench have differed in their opinion, one of them is holding that A is the owner, while the other is holding that B is the owner. In such situation, the matter is referred to the third Judge, he gives his opinion that neither A nor B is the owner, but C is the owner. The Court has taken a view that the third Judge will have to confine his opinion either in favour of A or in favour of B, ultimately, the Court has held that the third Judge will confine his opinion on the point which has been referred, he does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 917) : 1966 MP LJ 842 where it is observed as follows (at p. 74 of AIR)... 18. Suppose in a civil appeal between A as the appellant, and B and C as respondents, each one of the three parties claims title to the land and the two Judges of the Division Bench of the High Court differ in their opinion, one of them holding that A is the owner, while the other holding that B is the owner. In such a case, if the third Judge is of the opinion that neither A nor B is the owner, but C is the owner, it will have to be said that the opinion of the third is without jurisdiction. He has to confine his opinion to the difference of opinion whether A is the owner or B. 19. We would now advert to the question whether after the opinion of the third Judge is recorded, it is necessary that the case must be placed before the same Bench which first heard it. There is no such restriction either in Rule 11, Chapter I of the High Court Rules, or in Clause 26 of the Letters Patent. 20. But as a matter of propriety it should be laid before the same Bench which first heard it. However, if that Bench is not available or if it is not convenient for that Bench to sit, for instance in our High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case before it. It is not the requirement of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can constitute another Division Bench to decide the case according to the method provided by Clause 26 of the Letters Patent. 54. So, the crux of the Full Bench judgment is that the referee Judge will confine his consideration with respect to the issue which has been framed and referred, the third Judge has to choose either of the opinion given by the members of the Division Bench, who differed with each other and he cannot give his separate opinion apart from the opinion given by the Division Bench, inasmuch as, he cannot give his opinion on the point which has not been referred and he cannot decide the case as a whole, but after recording his opinion, will return the same to the Division Bench, who will declare the majority of the opinion. This aspect will be dealt with by this Court at a later stage. 55. In the case of Shriram Industrial Enterprises Ltd. vs. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajority of the opinion of the Judges, who has heard the case including those who who have first heard it. The Court has arrived to a finding that in fact the Division Bench could not decide the case finally as they have recorded their separate opinion, which they were differing to each other, so that decision will not have a force of law and binding on the parties, will only be an opinion not a judgment. It has further been held that if the two Judges constituting a Division Bench gives contradictory decision or decisions at variance with each other, in law, such decisions cannot be called as judgments as they do not decide any question or issue in the case or proceeding nor do they decide any of the rights of the parties. In such a situation, the decision so rendered will only be an opinion on the point, but it could not be a judgment at all. In crux, it has been held that there can be no doubt that the proper course for the Judges who have dissented in their respective opinions while hearing a case is not to pass final order either allowing or dismissing the same, but to record their point of difference expressing their opinions. However, it will still be open to them to state th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rights of the parties. 124. There can be no doubt that the proper course for the Judges who have dissented in their respective opinions while hearing a writ petition is not to pass final order either allowing or dismissing the same but to state their point of difference after expressing their opinions. However, it will still be open to them to state the point upon which they have differed even if they have passed final orders. If the point of difference is not stated, it will be for the third Judge (or Judges) to whom the case is referred to ascertain the same and to give his (or their) opinion thereon. 57. One matter relating to Small Causes Court came for consideration in the case of Shekhar Narayan Shetty vs. Madhavlal Pittie and Ors., reported in 2015 (4) Mh. L.J. 687, which was considering the contextual interpretation of Section 98 of the Civil Procedure Code and it has been held that when the two Judges recorded a difference of opinion and the matter is referred to the third Judge, the third Judge would not give a final verdict, but he can only record his opinion. He cannot decide the case finally nor can decide the point, as the matter is to be decided by the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be proper to quote relevant portion of paragraph no.7 of the said judgment, which is as follows:- 7. ... on behalf of the appellant, however, it has been submitted that it is not open to the respondent to urge this point before me because there was no difference of opinion on this point between the Hon'ble Judges of the Division Bench and the jurisdiction of this Bench hearing the appeal under clause 28 of the Letters Patent of this Court is limited to decide the question on which there is a difference between the two Hon'ble Judges. To me there appears to be much substance in the contention raised by the learned Government Pleader on behalf of the appellant. Clause 28 of the Letters Patent runs as follows: And we do hereby declare that any function, which is hereby directed to be performed by the High Court of Judicature at Patna, in the exercise of its original or appellate jurisdiction may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of Section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench, hearing of the appeal, as required under the proviso to sub-section (2) of Section 98 of the Civil Procedure Code, the reference to the third Judge itself is illegal. There is no majority opinion of the Judges reversing the decree of the Court below and the same should be deemed to be confirmed. In that case, the Court has made a comparison of Section 98 of the Civil Procedure Code with Clause 28 of the Letters Patent and held that difference of opinion on the question of law will be formulated and referred to the third Judge for his opinion as Section 98 of the Code of Civil Procedure envisaged, the difference of opinion only on the question of law. So, Section 98 stipulates that it is only confined to the opinion on the question of law, upon which two Judges differed, referred to the third Judge who will record his own opinion, remit back and that part will be decided according to the majority opinion, who have first head the appeal including the referee Judge. 60. In view of the aforesaid, it is very much clear that in the event of difference of opinion between the members of the Division Bench, the Division Bench will record its difference of opinion and on the discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision i.e. under what circumstance the Court can interfere with the decision of the authority in administrative action. The basic principle of interference is that the Court would interfere with the action if the same suffers from perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. If any act is based on some materials, it cannot be said to be perverse or warrant interference in exercise of extraordinary power of the High Court under judicial review. A decision is vitiated and irrational if the decision is so outrageous that it is in defiance of all logic. If the person acting reasonably, has taken a possible decision having regard to the material available on record, the decision cannot be said to be irrational. Moreover, when the decision apparently suffers from apparent error of law on the face of the decision, which goes to the root of the decision or the error is so apparent, then in such circumstance, the Court will interfere with the order in exercise of power under judicial review. The judicial review would be exercised not against the decision, but the decision making process, of course a patent illegality, per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent are as follows:- 60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of judicial review one is instantly reminded of the classic and oft-quoted passage from Council of Civil Service Unions, where Lord Diplock summed up the permissible grounds of judicial review thus: (AC pp. 410 D, F-H and 411 A-B) ... Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds opon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. ... By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y unreasonableness. (iii) Procedural impropriety. 63. Reference may also be made to the decision of this Court in State of Punjab v. Gurdial Singh (1980) 2 SCC 471 where Krishna Iyer, J. noticed the limitations of judicial review and declared that the power vested in the Superior Courts ought to be exercised with great circumspection and that interference may be permissible only where the exercise of the power seems to have been vitiated or is otherwise void on well established grounds. The Court observed: (SCC p. 475, para 8) 8. ...The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock jawed save where the power has been polluted by oblique ends or is otherwise void on well- established grounds. The constitutional balance cannot be upset. 64. There is almost complete unanimity on the principle that judicial review is not so much concerned with the decision itself as much with the decision-making process. (See Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141). As a matter of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to forming its own opinion about the substantial merits of the case. (AC pp. 541 F-H and 542 A) Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from procedural illegality or in any manner it can be said, suffers from illegality, irrationality or perversity. Summation:- 65. In view of the aforesaid discussions, I hold that:- (i) The competent authority is empowered to exercise the jurisdiction with regard to entitlement of full salary during the period of suspension for those who have already superannuated from the service, but while considering the claim, the principle mentioned in Rule- 97 of the Bihar Service Code will be invoked. (ii) If in the departmental proceeding, the Government servant has been fully exonerated, he will be entitled to full pay and allowances for the period of suspension. (iii) In case the departmental proceeding has been initiated but, could not be concluded or was dropped or in any manner does not come to its finality, the delinquent Government employee cannot be deprived of his full pay and allowances on account of non- completion of the inquiry proceeding or non- submission of the inquiry report. (iv) If the departmental proceeding has been rendered infructuous and not converted under Rule 43(b) of the Bihar Pension Rules and no inquiry report has been submitted, in that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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