# H. L. MEHRA v. UNION OF INDIA

- **Citation:** [1975] 1 S.C.R. 138
- **Court:** Supreme Court of India
- **Decided:** 1974-04-23
- **Case number:** Civil Appeal No. 1366 of 1972
- **Bench:** P. N. Bhagwati, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-l-mehra-v-union-of-india-6308
- **Pages:** 15

## Headnote

Central Civil Services (Classification, Control and Appeal) Rules 1965Sub rule S(b) of Rule IO-Whether valid.
The aooellant was in the servicr; of the Government of Jndia in the P.& T.
de'?artment and he was posted as an officer on special duty in Goa after its liberation on 20th Decen1ber, 1961.
The appellant was working in
that capacity
from 25th December, 1961 to 1 lth August, 1962 when he was transferred to
Allahabad.
A
B
While he was in Allahabad. he was suspended from service by an order dated
C
11th April, 1963 made by the President under sub-r. (I) of r. 12 of the Central
Civil Services (Classification, Control and Appeal) H.ules 1957 on 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 Prosec11tion of the appellant and
accordingly, the appellant was prosecuted in the Court of Special Judge, Greater
Bombay along \Vith another. 'fhc principal charge was that while the appellant
was on special duty in Goa, he had sent 4 consignments specifically described in
D
the charge, in trucks and railway wagons, and concealed in postal bags from Goa
to Bombay and thereby committed an offence punishable under S. 5 (2) read with
S. (! )(d) of the Prevention of Corruption Act 1947.
Whilst the criminal case was pending the Government of India issued a Memorandum dated 8th March, 1965 to the appellant intimating that the
President
proposed to hold an enquiry against the appellant under r. 15 of the Rules.
The allegations were set out in the statement of allegations enclosed
with
the
n1emorandum and the charges framed on the basis of the allegations were enuE
merated in the statement of charges. These charges were based on wholly different allegations and had nothing tCJ do with the charges on which the appellant
\Vas being prosecuted in the criminal case.
The learned Special Judge held the appellant guilty on the second charge so
far as it related to the first, second and fourth consignments referred to in that
charge and convicted him.
On appeal tf!e High Court confirmed the conviction
of the appellant and maintained the sentence; but a certificate to appeal to the
Supreme Court was granted by the High Court.
During the pendency of the
appeal, the President, passed an order dated 26th October, 1967, dismissing the
E
appellant fro1n service with immediate effect under R. 19(1) of the Rules, 1965.
The appeal against the conviction was, therea·fter, heard by this Court and
this Court allowed the appeal and set aside the conviction on the ground that no
custorn duty W«s Jeviable on despatch of goods from Goa to other parts of India
and therefore, the appellant could not be held guilty of evading payment of customs duty etc.
The President, thereafter, passed an order setting aside the dismissal
order;
G
but since an enquiry was pending against the appellant under the Rules, the President ordered continuance of the enquiry and directed continu::\nce of the suspen-
,
sion until further orders.
,
The appellant, thereafter, filed a writ petition before the Delhi High Court
challenging the validity of the order. While the writ petition was pending, the
Government issued another memorandum by which it directed enquiry only in
relation to charge II of the earlier .memorandun1; but added 3 more charges set
out in the statement of charges enclosed with the second memorandum. No
progress, was, however, made because of the writ petition before the High Court.
The Delhi High Court. dismissed the writ petition of the appellant and hence the
appeal to this Court.
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H. L. MEMRA v. UNION (Bhagwali, 1.)
13 9·
The impugned order dated 9th June, 1971 consisted of 3 parts-the first part
set aside the dismissal order, the second part directed continuance of the enquiry·
and the third part continued the suspension of the appellant under sub-rule 5(b}>
of Rule 10 of the Rules. 1965.

## Text

_Characters 0–39,899 of 47,632. This is a partial read: ask again with offset=39899 for what follows._

138
H. L. MEHRA
v.
UNION OF INDIA
April 23, 1974
[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.]
Central Civil Services (Classification, Control and Appeal) Rules 1965Sub rule S(b) of Rule IO-Whether valid.
The aooellant was in the servicr; of the Government of Jndia in the P.& T.
de'?artment and he was posted as an officer on special duty in Goa after its liberation on 20th Decen1ber, 1961.
The appellant was working in
that capacity
from 25th December, 1961 to 1 lth August, 1962 when he was transferred to
Allahabad.
A
B
While he was in Allahabad. he was suspended from service by an order dated
C
11th April, 1963 made by the President under sub-r. (I) of r. 12 of the Central
Civil Services (Classification, Control and Appeal) H.ules 1957 on 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 Prosec11tion of the appellant and
accordingly, the appellant was prosecuted in the Court of Special Judge, Greater
Bombay along \Vith another. 'fhc principal charge was that while the appellant
was on special duty in Goa, he had sent 4 consignments specifically described in
D
the charge, in trucks and railway wagons, and concealed in postal bags from Goa
to Bombay and thereby committed an offence punishable under S. 5 (2) read with
S. (! )(d) of the Prevention of Corruption Act 1947.
Whilst the criminal case was pending the Government of India issued a Memorandum dated 8th March, 1965 to the appellant intimating that the
President
proposed to hold an enquiry against the appellant under r. 15 of the Rules.
The allegations were set out in the statement of allegations enclosed
with
the
n1emorandum and the charges framed on the basis of the allegations were enuE
merated in the statement of charges. These charges were based on wholly different allegations and had nothing tCJ do with the charges on which the appellant
\Vas being prosecuted in the criminal case.
The learned Special Judge held the appellant guilty on the second charge so
far as it related to the first, second and fourth consignments referred to in that
charge and convicted him.
On appeal tf!e High Court confirmed the conviction
of the appellant and maintained the sentence; but a certificate to appeal to the
Supreme Court was granted by the High Court.
During the pendency of the
appeal, the President, passed an order dated 26th October, 1967, dismissing the
E
appellant fro1n service with immediate effect under R. 19(1) of the Rules, 1965.
The appeal against the conviction was, therea·fter, heard by this Court and
this Court allowed the appeal and set aside the conviction on the ground that no
custorn duty W«s Jeviable on despatch of goods from Goa to other parts of India
and therefore, the appellant could not be held guilty of evading payment of customs duty etc.
The President, thereafter, passed an order setting aside the dismissal
order;
G
but since an enquiry was pending against the appellant under the Rules, the President ordered continuance of the enquiry and directed continu::\nce of the suspen-
,
sion until further orders.
,
The appellant, thereafter, filed a writ petition before the Delhi High Court
challenging the validity of the order. While the writ petition was pending, the
Government issued another memorandum by which it directed enquiry only in
relation to charge II of the earlier .memorandun1; but added 3 more charges set
out in the statement of charges enclosed with the second memorandum. No
progress, was, however, made because of the writ petition before the High Court.
The Delhi High Court. dismissed the writ petition of the appellant and hence the
appeal to this Court.
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H. L. MEMRA v. UNION (Bhagwali, 1.)
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The impugned order dated 9th June, 1971 consisted of 3 parts-the first part
set aside the dismissal order, the second part directed continuance of the enquiry·
and the third part continued the suspension of the appellant under sub-rule 5(b}>
of Rule 10 of the Rules. 1965.
The only question debated before this Court was whether the third part of the
impugned order was valid and whether President was competent to continue the,
suspension of the appellant under sub rule S(b) of Rule 10 of the Rules.
It
was agreed that the validity of the order of suspension was
to be
judged by
reference to 1965 Rules and the onlv provision in the Rules of 1965 which deals
\Vith suspension· is Rule 10 a·nd 5(b) of Ruh: 10 provided, inter alia, that:-
\Vhere a Government servant is suspended etc. in connection with any disciplinary
proceedings etc. and any other disciplinary proceedings is
commenced
against
him during the continuance of such suspension. the au~hority may direct that the
Government servant shall continue to be under suspension until the termination
oi all or any of such proceedings."
Partly allowing the appeal.
1-lELD: (i) Before action can be taken under sub-rule 5(b) of Rule 10 of theRules, 1965, two conditions must co~exist; one is that the Government servant
must be under continuing suspension and the other is that during the continuance
of such suspension "any other disciplinary proceeding'' should be
commenced
against him.
[146D]
(ii) When an order of suspension is made against a Government servant,
pending an enquiry, the relationship of master and servant does not come to an
end. The Government issues it direction forbidding the Government servant
from doing the work which he was required to do under the h~rms of the Con--
trai..:t of S·~rvice, at the &ame time keeping in foree the rela·tionship of master and
servant
V. P. Gindronlya v. State of J1adhya Pradesh & ors. [19701 3 S.C.R. 448
referred to;
but when an order of dismissal is passed the Vi11culun1 Juris beiwt:en the Government and the servant is dissolved; the relationship of master and servant between:
them is extinguished and the order of suspension, a fortiorari comes to an end. It
follows, therefore. that once the suspension comes to an end by an order of dismissal, it cannot be revived by mere subsequent setting aside of the order of dismissal in the absen:e of a statutory provi•5ion or rule to that effect.
[1478-D]
Om Prakash Gupta v. The State of U.P. [1955] 2 S.C.R. 391, referred to.
Under the circumstances, the third part of the impugned order could not be
ju.stifi.'d under sub-rule 5(b) of Rule JO.
[l49B-C]
(iii) The third part of the impugned order continuing the suspension of the
appellant cannot also be justified l!.nder any of the ~ub rules of Rule IO.
For
example, r.ub rule 4 is not attracted in the persent case.
This sub-rule requires
2 conditions (iJ the order of dis1nissal must be set aside in consequence of a
decision of a court of law and (ii) the disciplinary authority must decide to hold
a fresh ~nquiry on the allegations on which the order of dismissal was originally
passed.
In the present case, the second condition is not fulfilled
because the
ci1quiry revived and continued under the second part of the impugned order was
not an enquiry on the allegations on \Vhich the penalty of dismissal was originally·
imposed on the appellant. Similarly sub Rule 5(a) is also not attracted because
thb sub·rule only operates within the framework of the relationship of master
and servant.
Once that relationship comes to an end, sub·rule 5(a) cannot besustained.
[l49F-150F; 151C-D]
(iv) Therefore, in the present circumstances, the third part of the impugned
order continuing the suspension of the appellant must be held to be void and iDoperative; but this does not mean that the President cannot pass a fresh order of
suspension under sub-rule (I) of Rule JO. 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.
[l52C-Dl
140
SUPREME COURT REPORTS
[1975] 1 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366 of 1972.
From the Judgment and Order dated the 25th February, 1972 of
the Delhi High Court in Civil Writ No. 1270 of 1971.
B. R. L. Iyengar, Bishamber Lal, P. V. Kapoor and S. C. Patel for
.the appellnat.
Govind Das and S. P. Nayar, for the respondent .
The Judgment of the Court was delivered by
BHAGWATI J. This appeal is directed against the judgment of the
Delhi High Court dismissing a writ petition filed by the appellant
A
B
against the respondents challenging the validity of an order dated 9th
C
June, 1971 passed by the President directing that a disciplinary inquiry
pending against the appellant shall be cc1I1tinued until its finalisation
and the appellant shall continue under suspension under sub-rule 5 (b)
of rule 10 cf the Central Civil Services (Classification, Control and
Appeal) Rules, 1965, hereinafter referred to as CCS (CCAI Rules,
1965, until further orders. The facts giving rise to the appeal may be
briefly stated as follows.
D
The territory' of Goa, which w«s under Portuguese domination, was
liberated by the Indian Army on 20th December, 1961. The appellant
was at that time 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 -.vcre
required for rec1rganising the administration in the liberated territory
of Goa, the appellant was transferred and posted as officer on Special
Duty, Post and Telegraph Department, P'anjim, Goa. The appellant
took charge of his new office on 25th December, 1961 and hdd thut
officer till 1 lth 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. (!) of r. 12 of the Central Civil Services (Classification, Control
and Appeal) Rules, 1957, hereinafter referred to as the CCS (CCA)
Rules, 1957 c111 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 prosecution of the appellant and pursuant to the
sanction so granted, the appellant was prosecuted in the court of Special
Judge, Greater Bombay along with one Raj Bahadur Mathur on four
charges. The first and the fourth charges are not material as
the
appellant was acquitted of those charges by the learned Special Judge
and nothing now turns upon them.
The third charge
is
also not
material as it was directed only against Raj Bahadur Mathur and the
appellant had ncithing to do with it. The principal charge was the
second charge which alleged that the appellant had, while functioning
cas Officer on Special Duty, Post and Telegraph Department, Panjim,
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H. L. MEHRA v. UNION (Bhagwati, J.)
14 l
Goa, by abuse c~ his official position or by illegal and corrupt means,
obtained pecuniary advantage for himself and/or for others, inasmuch
as he had sent or caused to be sent from Panjim to Bombay four con·
signments specially described in the charge, in trucks and/or railway
wagons hired by Post and Telegraph Department for transportauon of
foreign parcels from Goa to Daman via Margo, Poona and Bombay,
without payment of freight charges, customs duty etc., and thereby
committed an offence punishable under s. 5(2) read with s. 5(1) (d)
of the Prevention of Corruption Act, 1947. Of the four consignments
referred in this charge, the first related to eight cases concealed in five
postal bags sent on or about 29th June, 1962, the second related to
twelve wooden boxes and a steel trunk concealed in eight postal bags
sent on or about 26th July, 1962, the third related to nine cases sent
on or abqut 31st July, 1962 concealed in postal bags and the fourth
related to some trunks and leather suitcases sent on or about 31st
March, 1962. Whilst the criminal case was pending in the Court of
Special Judge, Greater Bombay, the Government of India issued a
memorandum dated 8th March, 1965 to the appellant intimating that
the President propc~ed to hold an inquiry against the appellant under
r. 15 of the CCS (CCA) Rules. 1957. The allegations on whicl: the
inquiry was proposed to be held were set out in the statement of
allegations enclosed with the memorandum and the charges framed on
the basis of these allegations were enumerated in the statemeut
c~
charges accompanying the memorandum. There were
four charges
set out in the statement of charges. The first, the third and the fourth
charges are not material aud we need not refer to them in detail. It
would be sufficient to state that they were based on wholly diJierent
allegations and had nothing tel do with the charges on which the appellant was being prosecuted in the criminal case. The second charre,
however, stood ou 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 Speciat
Duty, P. & T. Department, Panjim, Goa betweeu the 24th
December, 1961 and the 31st August, 1962, failed to main·
tain absolute integrity and devotion to duty as required by
Rule 3 c~ the CCS (Conduct) Rules, 1955 and committed
mis-conduct in the discharge of his duties as a public servant
inasmuch as he, by abusiug his official position, managed to
send 9 cases packed with his luxury goods from his resi·
dence at Panjim to Margoa Post Office on or about the 31st
July, 1962 in the truck c[ 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
charges and also unauthorisedly utilised the services of the
postal carpenters on working days during the office hours for
packing the aforesaid cases and thereby secured to himself
wrongful gain and pecuniary advantage."
The disciplinary inquiry into these charges proceeded rather desultorily
and not much progress was· made.
Th~ reason obviously was that the
142
SUPREME COURT REPORTS
(19'75) J S.C.R.
.criminal case was pending. At the trial of the criminal case, a large
mass of evidence was led on behalf of the prosecution and the appellant
.also led evidence m support of the defence.
On the evidence
the
learned Special Judge came to the conclusion that the first and the fourth
.charges were not established against the appellant and acquitted him
.of those charges. The learned Special Judge also acquitted Raj Bal:adur
Mat.bur of the first and the third charges framed against him. However,
so far as the second charge against the appellant was concerned the
learned Special Judge found that the appellant was guilty of that charge
in so far as it related to the first, the seccind and the fourth consignments referred to in that charge though not in respect of the third consignment of nine cases sent on or about 31st July, 1962. The learned
:Special Judge accordingly convicted the appellant only in respect of the
second charge and that too in so far as it related to the first, the second
.and the fourth consignments and acquitted him of all the other charges
including the second charge in so far as it was based on the third con·
signment of nine cases sent on or about 31st July, 1962. The appellant preferred an appeal against the order passed by the learned Special
Judge in so far as it rei'ated to his conviction and. the appeal was
heard by a Division Bench of the High Court of Bombay. The Divi-
·sion Bench by a judgment dated 17th April, 1967 confirmed tht; con-
"Viction of the appellant and also maintained the sentence passed against
him by the learned Special Judge. The appellant immediately applied
for a certificate for leave to appeal to this Colitt and the certificate was
-granted by the High Court of Bombay on 18th April, 1967. Since
·an appeal against the conviction was preferred to
this. Court, the
"President could have waited .for the disposal of the appeal
betore
taking any actidn against the appellant on the basis of the conviction.
But, instead, the President passed an order dated 26th Oc~ober, 1967
dismissing the appellant from service with immediate effect under Rule
19(!) of CCS (CCA) Rules, 1955 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 Maren, 1971 this Court allowed the appeal and
set aside the conviction of the appellant. It is necessary for the purpose of the present appeal tc1 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 despatch of goods from Gc<1 to 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 o~ customs duty by abusing his cl'licial 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 Silpdt. of
RMS was dismissed frcim serviCe wi'th effect ftotti 26tlf0ctoA
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H. L. MEHRA v. UNION (Bhagwati, !.)
143
her, 1967 on the ground of conduct which led to his conviction on a criminal charge vide order No. 7 /6/63-Disc. dated
the 26th October, 1967 .
AND WHEREAS the said conviction has been set aside
by the Supreme Court and the said Shri H. L. Mehra has
been acquitted of the said charge ;
AND
WHEREAS in
consequence
of
such
acquittal
the
President has decided that the said order of dismissal should
be set aside.
AND WHEREAS Shri H. L. Mehra, the then Senior
Supdt. of RMS was under suspension vide order No. 10/10
9(63-Vig. dated the 1 !th April, 1963; at the time of dismissal, and
an enquiry under the
provisions
of
CCS
(CCA) Rules, 1957 as ordered vide memo No. 7 /6/63Disc. dated the 8th March, 1965 was pending against him;
AND WHEREAS the . President bas decided that the
said enquiry pending against Shri H. L. Mchra,
may be
continued and under sub-rule 5(b) of Rule 10 of CCS
( CCA) Rules, 1965, Shri H. L. Mchra should continue
under suspension until the termination of such
proceedings:-
NOW, therefore, the President hereby -
(i) sets aside the said order of dismissal;
(ii) directs that the enquiry pending against Shri H. L.
Mehra,, shall be continued until its finalisation;
(tlii) directs that the said Shri H. L. Mehra, shall under
sub-rule 5(b) of Rule 10 of CCS (CCA) Rules,
1965 continue to remain under
suspension
until
further orders."
The appellant being aggrieved by this order in so far as it directed
continuance of the inquiry instituted against him by the Memorandum
dated 8th March, 1965 and also continned his
suspension
under
sub-r. 5(b) of r. 10 of CCS (CCA) Rules, 1965, filed a writ petition in the Delhi High Court challenging the validity of this order
on various grounds
set out in the writ petition. Whilst the
writ petition was pending, the President issued another Memorandum
dated
9th
December, 1971
dropping charges Nos. I,
III and IV set out in the Memorandum dated 8th March,
1965 and directing that the inquiry be continued only in respect of
Charge II and stating that an inquiry should also be held in respect
of three further charges set out in the statement of charges enclosed
with the Memorandum.
The inquiry which was
thus
continued
against the appellant was an inquiry into Charge II set out in tne
Memorandum dated 8th March, 1965 and the three further charges
set out in the Memorandum dated 9th December, 1971. No pro·
gress was, however, made in the inquiry in view of the writ petition
filed by the appellant.
The writ petition was heard by a Division
144
SUPREME COUR'f REP OR TS
(1975] 1 S.C.R.
Bench of. the Delhi High Court and by a judgment
dated
25th
A
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, it was frankly conceded by
the
learned counsel for the appellant that it was not possible for him
to assail its validity.
That part of the impugned order must, therefore, be held to be valid.
The only question debU:ted before us
was-and this raised a rather serious
controversy-whether
the
third part of the impugned order was valid : was it competent to
the President, in the circumstances of the case, to
continue
the
suspension of the appellant under sub-rule 5(b) of rule 10 of the
CCS (CCA) Rules, 1965? Even if it was not, could this part of
the impunged order be susta:ined under any
other
provision
of
rule 10 of the CCS (CCA) Rules, 1965?
The suspension of the appellant was originally made under an
order dated 11th April, 1963 in exercise -0f the power conferred
under sub-rule (1) of rule 12 of the CCS (CCA)
Rules,
1957
and it was this suspension which was purported to be continued by
the impugned order under sub-rule 5 (b) of rule 10 of the CCS
(CCA) Rules, 1965.
There was some
controversy
before
the
Delhi High Court as to which set of Rules would be applicable for
continuing the suspension of the appellant at the date
when
the
impugned order was passed.
The appellant
contended
that
the
Rules applicable would be the CCS (CCA) Rules, 1957 and the
impugned order inade under. the CCS (CCA) Rules,
1965
was,
therefore, bad. But this contention was rejected by the Delhi High
Court and rightly because rule 34 of the CCS (CCA) Rules, 1965,
which repeals the CCS (CCA) Rules, 1957 provides in Proviso (b)
for the application of the CCS ( CCA) Rules, 1965
to
pending
proceedings. This being the clear position, the learned counsel for
th~. appellant conceded that the validity of the
impugned
order
continuing the suspension of the appellant would have to be judged
by reference to the CCS ( CCA) Rules, 1965.
Now the only provision in the CCS (CCA) Rules, 1965 which
deals with. suspension is rule 10. It would be convenient at this st_age
to refer to th<! relevant provisions of that rule :
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H. L. MEHRA V. UNION (Bhagwati, J.)
"!0.(1) The appointing authority
or any
authority
to which it is subordinate or the disciplinary authority or
any other authority empowered in that
behalf
by
the
President by general or special order, may place a Govern,
ment servant under suspension -
(a) where a disciplinary proceeding against him is contemplated or is pending, or -
( 3) Where a penalty of dismissal, removal or compulsory retirement fro!Jl servi~ 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 Goy..
emment servant is set aside or declared or rendered
void in con,sequence 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 priginaUy 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 eompulsory 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 this rule shall continue to
remain in force until it is modified or revoked
by
the authority competent to do so.
(b) Where a Government servant is suspended or is
deemed to have been suspended, (whether in connection with any disciplinary proceeding or otherwise} ,
and any other disciplinary proceeding is commenced
agains! him during the continuance of that suspension
the authority competent to place him u•1dcr suspension may, for reasons to be recorded by him in writing, direct that the Government servant shal! continue to be under suspension until the termination of
all or any ot such proceedings."
Since the impugned order continuing the suspension of th¢ appellant is
purported to be made under sub-rule 5(b) of rule 10, we may first
l l-LlllSup.Cl/75
146
St,rPREME COURT REPORTS
(1975] 1 S.C.R.
examine whether it is justified on the terms of that sub-rule.
Sub-rule 5(b) postulates that a Government servant is suspended or
deemed to have been suspended-this latter contingency would arise
where a case falls within sub·rule (2)-and during the continuance of
his suspension "any other disciplinary
prqceeding" is
commenced
against him and provides that in such a case, a direction may be given
that he shall continue under suspension until the termination of such
disciplinary proceeding. The words "Government servant shall continue
to be under suspension" in the juxtaposition of the opening clause
clearly suggest that the basic condition for the applicability of subrule 5 (b) is that the Government servant should be under continuing
suspension at the date when "any other disciplinary proceeding"
is
commenced against him and direction is given for continuance of the
suspension. It is indeed difficult to see how a Government servant
can be directed to continue to be under suspension unless he is under
suspension at the time when such ,direction is given.
There can be
fresh suspension of a Government servant but we fail to see how there
can be continuance of a suspension which does not exist.
Two conditions must, therefore, co-exist before action can be taken under subrule 5 (b) : one is that the Government servant must be under continuing suspension and the other is that duri.ng the continuance of such
suspension "any other disciplinary proceeding" should be cornmecced agamst him:
Now in the present case, we will assume with the respondents that
:under the second part of the impugned order, a disciplina~y proceedmg was 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 continutd under suspension under sub-rule
5 (b) of rule I 0.
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 convict·ed 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 c~ the
appellant was that on the passing of the order of dismissal, his suspen·
sion 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 effect of reviving the suspension and the
appellant was accordingly not under suspension at the date when the
impugned order was made.
The respondents, on the other hand, contended that by reason of sub-rule 5(b) of rule 10 the order of suspen·
sion passed on 11th April, 1963 continue.d to remain in force despite
the making of the order of d1snussal and m a_ny event, ev~n if the s~
pension cam~ to an end as a result of the passmg of the order of.dtS!llISsal it was revived with restrospective effect when the order of d1sm1ssal
wa~ set aside by the President by the first part of the impugned order
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147
and, therefore, at the instant of time when the third part of the impugn·
ed order was made under sub-rule 5(b) of rule 10, tl:e appellant was
under suspension.
We find there is great force in the argument of the
appellant and the contention of the respondents to th,e contrary must
be rejected.
Both principle as well as precedent compel us to this
conclusion.
Let us first examine the question on principle.
When an order of
suspension is made· against a Government servant pending an enquiry
into his conduct, the relationship of master and servant does not come
to an end.
What the Govermnent, as master, does in such a case is
merely to suspend the Government servant from performing the duties
of his office.
The Government issues a direction forbidding the Government servant from doing the work which he was required to do under
the terms of the contract of service or the' statut<} or rules governing
his conditions of service, at the same time keeping in force the relationship of master and servant.
In other words, to quote Hegde, J.,
from V. P. Gindroniya v. State of Madhya Pradesh & Ors.,(1), "the
employer is regarded as issuing an order to the employee which because
the contract is subsisting, the employee must obey".
This being the
true nature of an order of suspension, it follows that the Gcivernment
servant would be entitled to his remuneration for the period of suspension unless there is some provision in the statute c~ rules governing his
conditions of service which provides for withholding of such remunera...
tion. Now, when an order of dismissal is passed, the vinculum juris
between the Government and the servant is disscdved : the relationship
of master and servant between them is extinguished. Then the order
of suspension must a fortiorari come to an end.
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 provisicn
or rule to that effect. That is precisely the reason why sul>-rules (3)
and ( 4) had to be introduced in rule 10 providing for retrospective
revival and continuance of the suspensicn 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.(2) The appellant in that
case was suspended frclm 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 order cl dismissal passed against him was illegal and void
and he continued to be in service and was entitled to recover arrears
of salary. The claim that the order of dismissal was illegal and
void and the appellant continued to be in service was upheld by
fl) [1970] 3 S.C.R. 448.
(2) [1955] 2 S.C.R. 391.
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SUPREME COURT REPORTS
[1975] l S.C.R.
the High Court but relief by way of recovery of arrears of
salary was refused
and the appellant, therefore, preferred an
appeal to this Court. The claim of the appellant for arrears of salary
which was debated before this Court related to two distinct periods :
one from the date of the order of suspension up to the date of the order
of dismissal, and the other from the date of the order of dismissal up
to the date when the order of dismissal was set aside by the Court.
So far as the claim for the first period was concerned, the appellant
gave it up before this Court, as it would have necessitated a remand
which would have involved the appellant in heavy expenditure and
harassment. The claim for the second period was, however, seriously
pressed on behalf of the appellant and this Court decreed it · for
reasons which may best be stated in the words of Imam, J., spea)dng
on behalf of the Court :
"He, i.e., the appellant, 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 thoat it was not at all affected by the declaration
of the Civil Judge that the order of dismissal was illegal. In
view of that decision the order of dismissal must be regarded
as a nullity and non-existent in the eye of law.
The inquiry,
the outcome of which was the order of dismissal, had not
therefore ended. It could only end with a valid order which
would replace the order of suspension. Until thoat happened
the accusation against the appellant remained and the inquiry
had not ended. He referred to the case of M. Gopal Krishna
Naidu v. State of Madhya Pradesh(·'). On behalf of the
appellant reliance Wall placed on the case of Provincial
Government, Central Provinces and Berar through Collector,
Amraoti v. Shamshul Hussain Siral 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 ol dismissal by way of penalty had been passed against
the appellant.
With that order, the order of
suspension
lapsed. The order of dismissal repfaced the order of suspension which then ceased to exist.
That clearly was
the
position between the Government of the United Provinces and
the appellant. The subsequent declaration by a Civil Court
that the order of dismissal was illegal could not revive an
order of suspension which did not exist. The case referred
to by the Attorney-General is not directly in point and that
decision does not conflict with the case relied upon by the
appellant.
The appellant is, therefore, entitled to recover
(l) A.I.R.1952 Nag, 170.
(2) I.L.R. !948 Nag. 576: AJ,R. (36) 1949 Nag. ll8.
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H. L. MEHRA v. UNION (Bhagwati, J.)
arrears of salary from the 25th November, 1944, to 31st
December, 1947."
149
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
dismissal by the first part of the impugned Order. The appellant was
accordingly not under suspension at the point of time 'when the third
part of the impugned order was made and in the crrcumstances, the
third part of the impugned order could not be justified under subrulc 5(b) of rule 10.
But that does not conclude the question. It is now well settled that
when an authority passes an order which is within its competence, it
cannot fail merely because it purports to be made under u wrong provision, if it can be shown to be within its power under any other provision. If the power is otherwise established, the fact that the source
of the power has been incorrectly described in the order wuuld not
make it invalid. Vide P. Balakotaiah v. The Union of lndia(J) and
Afzal Ullah v. State of Uttar Pradesh(2 ). We must, therefore, proceed
to consider whether the third part of the impugned order could be
justified under any other provision contained in rule 10.
sub-rule
( 3) obviously could not be invoked because the order of dismissal
was not "set aside in appeal or on review" under the CCS
(CCA)
Rules, 1965. The only sub-rule which could be and was relied upon
by the respondents was sub-rule ( 4) and it was urged that under that
sub-rule, the order of dismissal having been set aside by the President
in consequence of the decision of this Court acquitting the appellant,
the appellant must be deemed to have been placed under suspension
by the President from the date of the original order of dismissal
and he would continue to remain under suspension until
further
orders and it was in recognition of this position that the third part
of the impugned order was made. This contention of the respondents
is also without force.
There are two conditions which must be
satisfied in order to attract the operation of sub-rule ( 4). First, the
order of dismissal must be set aside in consequence of a decision of
a court of law-we are setting out here only the material part of
the first condition, nnd secondly, the disciplinary authority
must
decide to hold a fresh enquiry on the allegations on which the order
of dismissal was originally passed. The first condition was admittedly
satisfied in the present case because the order of dismissal was set
aside by the President in consequence of the decision of this Court
acquitting the appellant.
The question is
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
(1) [1958] S.C.R. 1052.
(2) [19641 4 s.c.R. 991.
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SUPREME COURT REPORTS
[1975) 1 S.C.R.
n•arrated.
The penalty of dismissal was imposed on the appellant
on the ground that his conduct, which had led to the convicticlll, was
sucn as to render his further retention in the public service unde•
sirable.
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 ch•arge 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 despatched on or about 31st July, 1962
is
concerned, the appellant was acquitted and his alleged conduct in
despatching
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 the second charge
in relation to the first, the second and the fourth consignments.