# Commissionir for India and High Commissioner for Pakistan v. /. M • v. Tiu Staie of Uttar

- **Citation:** [1955] 2 S.C.R. 391
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 85 .of 1954
- **Bench:** VIVIAN BosE, Bhagwati, Jagannadhadas, Venkatarama Ayyar, S1Nha, Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissionir-for-india-and-high-commissioner-for-pakistan-v-m-v-tiu-staie-of-1497
- **Pages:** 12

## Headnote

Government servant-Order of dismissal-Suit fOt" declaration
that order dismissing the appellant from service was. illegal-Court
fee paid on an alte.-native claim fol" 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.
The appellant, a member of the United Provinces Civil (Executive) Service, was suspended from service with effect from the 24th
August, 1944, pending aP 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 !st 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 sal:rry. The plaint included an alternative prayer for a declaration that the order of dismissal was
1955
M. K. RangQll/Jthan
""' ,,,,,,,Mr
....
G~•f
Madns ad oth6rs
~i].
1955
4jlril :u
~.
~·.
l
., ..
. .
392
SUPREME COURT REPORTS
(1955]
' 1955
Om Prakash Gupta
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. ),20,000 /- .. was paid. The claim for damages was later on
al>andon~<:f iii' view of "the decision of the Privy Council in High
Commissionir for India and High Commissioner for Pakistan v. /. M •
v.
Tiu Staie of Uttar
. Pr~sh ·.,
Li/{1 ) and:'fonsequentlal amendments were made in the plaint. The
Civil J udgc granted
a declaration that the order of dismissal was
illegal and that the appellant continued to be in service in spite of
th:μ: order. . But he declined to grant a decree for arrears of salary on
the groui:id that a suit therefore 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 dismiisal 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 r_cfused refund of Court-fee.
Leave was, however, granted
to dppeal to thi:: Supreme Court.
"-·" "l
- :.:'' ' lf.,1.
.d
' '
.. dn view of the decision of the Supreme Court in the case of The
Siate of Bihar v.,Abdu/'Majid('), the respondent did not dispute the
right of-'ilic '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 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.
·.
~i.
·
- ·
··
·
t'~··l:.. The- que"~tioil whether the order of suspension dated the 24th
August, 1944, . was valid . and whether it was passed after due en-
. quiry; woold be material only with reference to the claim for salary
.for the period between the 24th August, 1944 and the. !st December,
1944, arid as the appellant did not press the claim for that period
there was no need to direct an enquiry on that point,
. .
"")
. ·• Heid ·£U,ther· 'tliat the claim for refund of extra court-fee could
. not be. gianted illasmuch as the decision of. the Privy Council dari-
. lying the. pi>si\ion eould not be a ground for the refund of ~xcess
·rou_rt·f«: -whCQ at the time it was _paid it was in accordance with. the
:}i_w. as i~, thcii ~~
·
The State of Bihar v. Abdul Majid ([1954) S.C.R. 786), Sh""um
v. ,.Smith.([188~] .A.C. 229), R. V

## Text

2 S.C.R.
SUPREME COURT REPORTS
391
Official Receiver.
The position was rightly summed
up by the High Court as under:-
"W e thus
reach
the position that no leave of
Court was
needed
before
the Receiver appointed by
the mortgagee debenture-holders exercised the
power
of sale and that as there is no allegation of want of
bona ft.des or recklessness or fraud against the Receiver
in exercising such a power, it would follow that the
sale held by the Receiver
is valid and effectual to
convey
title
to the purchaser and that such
a sale
cannot be avoided on the ground either of want of
due notice given
by the Receiver before effecting the
sale or on the ground of undervalue".
The result therefore is that the appeal fails and must
be dismissed with costs of the contesting Respondent
3.
The other Respondents
who have appeared before
us will bear and pay their own costs of the appeal.
OM PRAKASH GUPTA
ti.
THE ST ATE OF UTT AR PRADESH.
[VIVIAN BosE, BHAGWATI, JAGANNADHADAS,
VENKATARAMA AYYAR, S1NHA and IMAM, JJ.]
Government servant-Order of dismissal-Suit fOt" declaration
that order dismissing the appellant from service was. illegal-Court
fee paid on an alte.-native claim fol" 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.
The appellant, a member of the United Provinces Civil (Executive) Service, was suspended from service with effect from the 24th
August, 1944, pending aP 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 !st 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 sal:rry. The plaint included an alternative prayer for a declaration that the order of dismissal was
1955
M. K. RangQll/Jthan
""' ,,,,,,,Mr
....
G~•f
Madns ad oth6rs
~i].
1955
4jlril :u
~.
~·.
l
., ..
. .
392
SUPREME COURT REPORTS
(1955]
' 1955
Om Prakash Gupta
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. ),20,000 /- .. was paid. The claim for damages was later on
al>andon~<:f iii' view of "the decision of the Privy Council in High
Commissionir for India and High Commissioner for Pakistan v. /. M •
v.
Tiu Staie of Uttar
. Pr~sh ·.,
Li/{1 ) and:'fonsequentlal amendments were made in the plaint. The
Civil J udgc granted
a declaration that the order of dismissal was
illegal and that the appellant continued to be in service in spite of
th:μ: order. . But he declined to grant a decree for arrears of salary on
the groui:id that a suit therefore 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 dismiisal 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 r_cfused refund of Court-fee.
Leave was, however, granted
to dppeal to thi:: Supreme Court.
"-·" "l
- :.:'' ' lf.,1.
.d
' '
.. dn view of the decision of the Supreme Court in the case of The
Siate of Bihar v.,Abdu/'Majid('), the respondent did not dispute the
right of-'ilic '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 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.
·.
~i.
·
- ·
··
·
t'~··l:.. The- que"~tioil whether the order of suspension dated the 24th
August, 1944, . was valid . and whether it was passed after due en-
. quiry; woold be material only with reference to the claim for salary
.for the period between the 24th August, 1944 and the. !st December,
1944, arid as the appellant did not press the claim for that period
there was no need to direct an enquiry on that point,
. .
"")
. ·• Heid ·£U,ther· 'tliat the claim for refund of extra court-fee could
. not be. gianted illasmuch as the decision of. the Privy Council dari-
. lying the. pi>si\ion eould not be a ground for the refund of ~xcess
·rou_rt·f«: -whCQ at the time it was _paid it was in accordance with. the
:}i_w. as i~, thcii ~~
·
The State of Bihar v. Abdul Majid ([1954) S.C.R. 786), Sh""um
v. ,.Smith.([188~] .A.C. 229), R. Venkata Rao v. Secretary of State for
'Jnilia. 'in CounCii (r.;.R. 64 I.A. 55), M. Gopal Krishna Naid,. v. s-
;f,fMadhf.a:Pr1idesh (A.I.R. 1952 Nag. 17), Provincial Government,
"i::'1itrti1 P~t/vi."cei ,and Berar through Collector, Amraoti v. Shams/Jiil
;!fps~'4n Sirifi H.uss'ain (I.LR. [1948] Nag. 576), referred ID.
(I) [1948] L.R. 75 I.A. 225.
(2) [1954] S.C.R. 786.
2S.C.R..
SUPREME COURT REPORTS
393
CIVIL APPELLATE
JURISDICTION : Civil Appeal No.
85 .of 1954.
,,
i 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. Clioudhry, with him)
for th~ appellant.
M. C. Setalvad, Attorney-General for 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 Pri>-
vinces 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 ~n 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 informed
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 pri>-
cedure adopted by him for the inquiry. The Commis-
"
7-83 S. C. India/59.
1955
Om Prakash Gupta
v.
The State of Ullar
Prat/uh
1955
Om FTakash G•Pta
v,
The State of Uttar
Pradesh
Imam J,
394
SUPREME COURT REPORTS
[1955]
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
h.is intention to bring a
suit and on the 2nd Janua·y, 1948, he filed
his
suit.
He asked for a declaration that the order of
dismissal
was wrongful, illegal,
void and
inoperative
~nd that
he still continued
to be a member of the Civil Service
ontitled
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
rnbsequent
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 CommiJJiorttr for
India
and H;,gh
Commissioner for PakistaN Y.
J. ,\f. Lal-. [1948] L.R. 75 I.A .. ~~·"·
ts.c.R.
SUPREME COURT REPORTS
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 dedsion 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 AttorneyGeneral in the course of his argument had 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
(ll [1954] S.C.R. 786.
1955
Om Prakash Gupla
v.
TM State of Utlar
Pradesh
Imam].
!955
Om Prakash Gupta
v.
Thi SlaU of Uttar
Prad<sh
Imam J.
SUPREME COURT REPORTS
fi9;5]
asked for time to ·file an additional written statement
on behalf of.' the respondent. This court allowed time
· for the
respondent to <lo ·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 hearing again and the learned Advocate
for
the appellant
made his submissions on the addi0tional
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
riot
urge this
point in his opening argument
but urged it in reply after the
Attorney-General
had 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
made 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 he a member of
• the Civil
Service.
The decision of the Privy Council
clarifying the position could not be a ground for re-
. fund 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
Lan order.of 'refund. In the' High Court he did not i ask
1•foi this relief on 'the basis of any statutory provision.
;lHe invoked ·. the inherent powers of the High Court.
bThe: .. Court Fees. Act contains,, certain provisions for
irefund of court ·fee paid by a party
but
admittedly
the present case is not covered by any of those provi1 sions. It · seems, · therefore, that the High Court in
the circumstances
of
the present case rightly refused
2S.C.R.
SUPREME COURT REPORTS
397
to order a refund of the excess court fee paid by the
appellant.
.Jt
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 inquiry 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 rev1smg
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 Governme9-t 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 referred 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
1955
Om Prakash Gupta
v.
Till State of Uttar
Praduh
Imam].
!955
·Om PrakashGupaJ
.v.
The Stat, of UUar
had<sh
lmam J.
398
SUPREME COURT REPo;R.TS
119.55]
there was· an e;rrpress
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
his 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
smpension
pending an inquiry but the provisions of rule ~4 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
impo».rl 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, the1e
was no contravention of any
principle of
natural
jnstice
as
the appellant
had
an opportunity of explaining the accusation
marle
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 reference
to three cases
and the appellant saw him in
2 S.C.R.
SUPREME COURT REPORTS
connection
therewith.
He admitted the
facts but
tried to explain them. He, however, declined to give
his ~tatement
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
Fundam_s:ntal Rules were merely directions for general
guidance and they did not constitute a contract between the Crown and its servants. For this propositi_on
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 R. Venkata Rao v. Secretary of State for India in
Council(').
"Section
96-B in express terms states
that office is held during pleasure.
There is, therefore, no need for the implication of this i:erm 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 .................. Inconvenience is ·not a final
consid4'.ration
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
V.'as
(1) (18951 A.C. 22~.
('' J •. R. li4 I .A. 55·
1955
Om Prakash Guf11a
v.
The State of Uttar
Pradesh
Imam].
1955
Om Prakash Gupta
v.
Tk Stal• of Uttar
Praduh•
Imam f
400
SUPREME COURT REPORTS
[1955]
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 Abdttl 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 had
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 atti-
'
.
.
.
.
tude 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 therfore
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. Copa! Krishna' Naid11
v.
.2 .S.C.R.
SUPREME COURT REPdRTS
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
Sirai
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 suspensio-9which
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, entiled to recover arrears of
salary from the 25th of November, 1944, to 31st
J)ecember, 1947.
The appeal is accordingly allowed in palt with costs
throughout and
th~ 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 J)ecember,
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 J)ecember, 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 thi$ 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.
(1) I.L.R.1948 Nag. 576; A.I.R. (36) 194r1 :Sag. 118.
1955
Om Prakash Gupta
v.
The State of Utlar
Pradtsh
Imam].
1955
Om Prakash Gu1ta
v.
Tlie Stale of Ufla,
Prtkhsh
Imam].
1955
April 21
SUPREME OOURT REPORTS
[1955)
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,
thertfore,
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
pauperis.
As he has succeeded in the appeal, the
Registrar shall calculate the amount of court fee which
would have been paid by the appellant ;f 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.
THE DELHI CLOTH AND GENERAL MILLS
CO., LTD.
ti.
HARNAM SINGH AND OTHERS.
(VMAN BosE, JAGANNADHADAS and BHUVANESHWAR
PRASAD SINHA, JJ.)
Priv11te International Law-Law applic11ble to contractual obligations-English and Continental schools of thought-Lex situs and
uProper I.Au/' of contract-Partition of India-Post partition debt
-Action for recovery where lies-Analogy of banking transactions and
insurance claims-Place of primary obligatio11-Debt,
whether property-Sections 3 and 130 of Transfer of Property Act-Evacuee property laws-Pakistan (Protection of Evacuee Property)
Ordinance,
1948 (XV/ll of 1948)-Pakistan (Administration of Evacuee Pro·
perty) Ordinance (XV) 1949-Whether confiscatory in nature
During the years
in question cloth was rationed at Lyallpur,
then a part of the Punjab in undivided T ndia, ·and sales could only
be made to government nominees and other authorised persons. The
plaintiffs rcsii!cnt in Lyallpur, were the government nominees. The