KHEM CHAND versus UNION OF INDIA

1 S.C.R. SUPREME COURT REPORTS KHEM CHAND

UNION OF INDIA

(B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS GUP'l.'A ANDJ. c. SHAH, JJ.)

Public Servants-Dismissal-Order set aside by Sup»eme Court-Fresh enquiry on same charges-Snsperu;ion-Rule provid-ing that public servant shall be deemed w be under snspenBion from date of original order of suspension-Validity of-Central Civil Services (ClflSs(~cation, Control and Appeal) Rules, .1957, r. 12(4)-Caru;titution of Ind,ia, Arts. 14, 19(1) (f), 31 (1), 142, 144,

The appellant public servant was served with charge sheet and after enquiry was dismissed. He filed suit for declaration that the order of dismissal was invalid and for further declaration that he still continued to be in service. The suit was ultimately decreed by the Supreme Court by making the declarations sought. In the meanthne, the appellant filed another suit for recovery of arrears of salary and allowances. The suit was stayed pending the disposal of the appeal before the Supreme Court. After the judgment of the Supreme Court, the authorities decided to hold further enquiry against the appellant m1 the original allegations, In view of L 12(4) Central Civil Services (Classification, Control and Appeal) Rules, 1957, the trial court ordered that the proceedings· shall remain stayed till the order of suspension was revoked or set aside, Rule 12(4) provides that where penalty of dismissal, removal or compulsory retirement· is set aside by court of la\v and the authorities decide to hold further enquiry on the same allegations, the public servant shall be dcc1necl to have been placed under suspension from the date of the original order of dismissal, removal or compulsory retire1nent. The appellant contended that r. 12 (4) offended Arts, 14, 19 (1) (f), 31, 142 and 144of the Constitution and was void, Held, that r. 12(4) did not offend any of the Articles of the Constitution and was valid, Article 142 provides that decrees passed by the Supreme Court shall be enforceable throughout 1he territory of .India, and Art. 144 provides that all authorities, civil and judicial shall act in aid of the Supreme Court. Rule 12 (4) did not go against the decree of the Supreme Court and accordingly it did not contravene Arts. 142 and 144, The declaration by the

?(°hem Chand v. Un ion of India

Supreme Court that the appellant was member of the service at the date of the institution of the suit was not affected by the appellant being placed under suspension. The only things affected by r. 12(4) were the salary and allowal!ccs of the. appel-lant as to which the Supren1e Court decree contained no directions. Rule 12(4) did not contravene Art. 19(1) (f). Conceding that the right to receive arrears of salary constituted the appel· !ant's property and that r. 12(+) placed substantial restrictions on the exercise of that right, the restrictions were in the interest of the general public. The taking of disciplinary action agai-nst public servants for inefficiency, dishnt-(esty etc. was absolutely necessary in the interests of the general public. Suspension of the public servant pending enquiry was necessary and reaso-nable part of the procedure.

Devendra Pratap v. State of U. P., [1962] Supp. I. S. C.R. 315. 1334, distinguished.

The argument that there was discrimination between public servant the penalty of dismissal etc. on whom was set a:<ide by court and another public servant similar penalty on whom was set aside on appeal by the departmental disciplinary authority was incorrect. Rule 12(3) provided that in the latter case also the suspension of the public servant shall be deemed to have continued in force from the date of the original order of dismissal etc. Only in the case of public se<vant who had not been placed under suspension pending enquiry, would r. 12 (3) not be operative. But such cases were rare. Rule 12(4) did not offend Art. 3 l (I) and whatever deprivation of property resulted from r. 12 (4) was by authority of law .

. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 124 of 1962.

Appeal by special leave from the judgment and

order dated November 14, 1960, of the Punjab High Court (Circuit Bench), Delhi in Civil Revision Case No. 22~-D of 195.9.

Janarda.n i::Jharma., for the appellant.

R. Ga.na.pathy Iyer and P. D. Merum, for the

respondents.

1962. September 25. The Judgment of the Court was delivered by

1 S.C.R. SUPRE.ME COURT REPORTS

DAS GUPTA, ].---This appeal by special leave raises the question of validity of r.12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, that were framed bv the President and published by notification dated February 28, 1957. Rule 12(4) is in these words:-

"12(4). Where penalty of dismissal, removal or compulsory retirement from service imposed upon Government servant is set aside or declared or rendered void in consequence of or by decision of court of law and the di.sciplinary authority on considera-tion of the circumstances of the case, decides to hold further inquiry against him, on the allegations on which the penalty of dismissal, removal or compulsory retirement was orginally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders."

The question arises in this way. On July 1, Hl49, the appellant, who was permanent Sub-Inspector of Co-operative Societies, Delhi, was suspended by the Deputy Commissioner, Delhi, On July 9, he was served with charge-slieet under r. 6(1) of the Rules which had been framed by the Chief Commissioner, Delhi. On consideration of the report made by the officers, who had held an enquiry into the several charges against him the Deputy Commissioner, Delhi, made an order on December 17, 1951, dismissing this appellant.

The appellant filed suit on May 20, 1953, praying for declaration that the order of dismissal made against him was invalid in law being in viola-tion of Art. 31l of the Constitution of India and for further declaration that he still continued to be in service of the Government.

1962 /;hem Chand v. U11iun of Inrlia Das Gupta, J.

1962 Khtm Chand v. Union of India Das Gupta, .T.

232 SUPREl\1E COURT REPORTS [Hl63) SUPP.

The Trial Court decreed the suit on l\fa y 3 l , 1954, declaring that the plaintiffs dismissal was void and inoperative and that the plaintiff continued to be in service of the State of Delhi at the date of the institution of the suit.

The appeal hy the Government of India was dismissed by the Senior Subordinate Judge, Delhi on December 31, 1954.

The decree was however set aside by the

Punjab High Court on November 1, 1955, in Second Appeal by the State and the suit was dismissed.

Against this decision of the High Court, the appellant preferred an appeal by special leave to this Court. This Court held that the pro·1isions of Art. 311(2) had not been fully complied with and the appellant had not had the benefit of all the consti-tutional protections and accordingly, his dismi~al could not be supported. The Court then passed the following order :-

"\\' c, therefore, accept this· appeal and set aside the order of the Single Judge and decree the appellant's suit by making declaration that the order of dismissal passed by the Deputy Commissioner on December 17, 1951 purporting to dismiss the appellant from service was in-operative and that the appellant was member of the service at the date of the institution of the suit out of which this appeal has arisen. The appellant will get costs throughout in all courts. Ur.der Order XIV Ruic 7 of the Supreme Court Rules, we direct that the ap-pellant should be paid his fees which we assess at Rs. 250".

The judgment of this· Court was delivered on December 13, 1957, and is reported in [1958] Supreme Court Reports at page 1080.

1 S.C.R. SUPREME COURT REPORTS

On April 20, 1955, i.e., shortly after the Govern-

ment appeal had been dismissed by the Senior Sub-ordinate J udgc, the appellant instituted suit in the Court of the Senior Sub-Judge, Delhi, out of which the present appeal has arisen. The defendants in this suit are: 1. The Union of India; 2. The State of Delhi; and 3. The Collector and Registrar, Co-operative Societies, Delhi. In this suit the plaintiff claims, on the basis of the decree obtained by him in the earlier suit, sum of Rs. 14,042/8/- as arrears of salary and allowances. The hearing of the suit was however stayed by the Trial Court on December 26, 1955, in view of the pendency of the appellant's appeal in this Court against the decision· of the Punjab High Court dismissing the earlier suit. As already stated, this Court delivered the judgment in that appeal on December 13, 1957. On December 26, 1957, the appellant made an application to the Trial Court praying that the hearing of the suit be taken up- Before, however, the suit could be disposed of, the defendants made an application to the Subor-dinate Judge, on August 7, 1958, stating that the disciplinary authority had on consideration of the circumstances of the case, decided to hold further enquiry against this appellant on the allegations on which he had been originally dismissed and that, consequently, the appellant should be deemed to have been placed under suspension by the appointing authority from December 17, 1951,-the date of the orieinal order of dismissal. Accordingly, it was con-tended by the defendants that the plaintiff's claim in the present suit was untenable.

On February 14, l!J5!), the Trial Court made an order in these terms :-

"It is hereby ordered that the proceedings in the case shall remain stayed until the time the order of suspension is revoked under Rule (fl) of the Central Civil Service (Classifi~atkin. I :on. trol and Appeal) Rules, l 1Ji)7 rcfcm·d 1,, :,:·,0v1:

Khem Chand V; Union of India

D.1s Gupta, J.

1962 .Khem Chand v. Union b.f India Das Gupta, J.

234 SUPREl\fE COURT REPORTS [1963) SUPP.

or its being set aside by competent tribunal or authority whichever event occurs earlier. The hearing of the suit is adjourned sine die and the proceedings shall be revived on the applica-tion of the plaintiff after the occurrence of any of the two events referred to above."

Against this order the appellant filed revisional application in the Punjab High Court challenging the validity of r. 12(4) of the Central Civil Service (Classi-fication, Control and Appeal) Rules, 1957. Division Bench of the High Court dismissed the revision peti-tion rejecting the appellant's contention against the validity of r. 12( 4). Against that decision of the High Court the appellant has filed the present appeal after obtaining special leave from this Court.

It is clear that if r. 1214) of the Central Civil Service (Classification, Control and Appeal) Rules, 1957, is valid the appellant must be deemed to have been placed under suspension from December 17, l \15 l. For, it is not disputed that after the penalty of dismissal imposed on him had been rendered void by the decision of this Court, the disciplinary autho-rity did in fact decide to hold further enquiry against him on the allegations on which this penalty of dismissal had orginally been imposed. It is equally clear that if the appellant be deemed to have been placed under suspension from December 17, 1951, the order made by the Trial Court staying the hearing of the suit and the order of the High Court rejecting the rcvisional application arc not open to challenge. The sole question therefore is whether r. 12(4) is valid in law.

This rule forms part of the rules made by the President in exercise of the powers conferred on him by the proviso to Art. 309 and cl. 5 of Art. 148 of the Constitution. The main provisions of Art. 309 is that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection

with the affairs of the Union or of any State. The

proviso to this Article makes it competen'. for t~e President or such other person as he may direct, m the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article. Clause 5 of Art. 148 makes similar provision in respect of the conditions of service in the Indian Audit and Accounts Department and provides inter alin that subject to the provisions of the Constitution. and of any Jaw made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General.

Mr. Janardan Sharma rightly contends that

this power of the President to make rules is subject to all the provisions of the Constitution and comcqucntly ifin making the rule the rule-making authority has contravened any of the provisions of the Constitution the rule is invalid to the extent of such contravention. According to Mr. Sharma r. 12(4) contravenes the provisions of Art. 142, Art. 144, Art. 19(1) (f), Art. 31 and also Art. 14 of the Constitution.

The argument that the impugned Rule contra-

venes Art. 142 and Art. 144 is practically the same. Article 142 provides inter alw that any decree passe<l ~y the Supreme Court in the exercise of its jurisdic-tion s~a!l be enforceable throughout the territory of India m such manner as may be prescribed by or under any law made by Parliament and until provi-sion in that behalf is so made, in such manner as the i:resident may by order prescribe. Article 144 pro-v1d~s that all ~uthorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. Mr. Sharma's argument as far as we could

1962 Kliem Chand v. Union of India Das Gupta, J.

li."hern Chand v. Union of India Das Gupta, ].

understand it is that under these provisions of Arts.142 and 144 duty lay on the President to do all that was necessary to give effect to the decree made by this Court in the earlier appeal and that by fram-ing r. 12( 4) the President has, in effect, gone against the directions of this Court as contained in that decree. In our judgment, there is no substance in this conten-tion. If the decree of this Court had directed pay-ment of arrears of appellant's salary and allowances and the effect of the rule made by the President was to deprive him of that right there might perhaps have been scope for an argument that the rule contravened the provisions of Art. 144. The decree made by this Court did not however contain any direction as regards payment of salary and allowances. It did contain direction that the appellant will get his costs thro-ughout in all courts. Quite clearly, however, the impugned rule does not in any way affect that right of the appellant. The only other relief granted by the decree was the making of declaration that the order of dismissal passed by the Deputy Commissioner, Delhi, on December 17, 1951, purporting to dismiss the appellant from service was inoperative and that the appellant was member of the service at the date of the institution of the suit out of which the appeal had arisen. Does the impugned rule go against this declaration? The answer, in our opinion, must be in the negative. The provision in the rule that the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal does not seek to affect the position that the order of dismissal previously passed was inoperative and that the appellant was member of the service on .Mav 25, 1953, when the first suit was instituted bv the appellant. An o~der of suspension of government servant does not put an end to his service under the Government. He continues to be member of the service inspite of the order of suspen-sion. There was termination of the appeilant's '''!'vice \vl1en the ordcc· of dismissal \\1~_$ made on

1 S.C.R. SUPREME COURT REPORTS

December l 7, 1951. When that order of dismissal was set aside the appellant's service revived; and so long as another order of dismissal is not made or the service of the appellant is not terminated by some other means, the appellant continues to be member of the service and the order of suspension in no way affects this position. The real effect of the order of suspension is that though he continued to be member of the Government service he was not permitted to work, and further, during the period of his suspension he was paid only some allowance -generally called "subsistence allowance"-which is normally less than his salary-instead of the pay and allowances he would have been entitled to if he had not been suspenckd. There is no doubt that the order of suspension affects government servant injuriously. There is no basis for thinking however that because of the order of suspension he ceases to be member of the service. The provision in r. 12(4) that in certain circumstances the Government servant spall be deemed to have been placed under suspension from the date of the original order of dismissal and shall continue to remain under suspension until further orders, does not in any way go against the declara-tion made by this Court. The contention that the impugned Rnle contravenes Arts. 142 or 144 is there-fore untenable.

Equally untenable is the appellant's next contention that the impugned rule contravenes the provisions of Art. 19(l){f) of the Constitution .. The argument is that as result of this Court's decree the appe)lant had right to his arrears of pay and allowances. This rfo;ht constituted his proiiertv· and . ', as the effect of the impugned Rule is that he would not, for some time at least, get those arrears it restricts his right. It may be conceded that the riirht to. ar.rean of pay ?nd allowances constituted prope7·ty w1thm the mean mg of Art. Hl(l ){f) of the Cons1itu-tion and liirther. that the effect of r. 12(4) is :«

Khem Chand v. Uuion of fndia Dax Cuptai J ·

Khem Chand v. Union of Indi 1 Das Gupta, J.

substantial restriction of his right in respect of that property under Art. 19(] )( f). The question remains whether this restriction is reasonable restriction in the interests of the general public. No body can seriously doubt the importance and necessity of proper disciplinary action being taken against govern-ment servants for inefficiency, dishonesty or other suitable reasons. Such action is certainly against the immediate interests of the Government servant concerned; but is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspen-sion of government servant pending an enquiry is necessary part of the procedure for taking disciplinary action against him. It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold further enquiry on the same facts against him fresh order of suspension till the enquiry can be completed, in accordance with law, is reasonable step of the procedure. We have no hesitation in holding, therefore, that in so far as r.12(4) restricts the appel-lant's right under Art. 19( 1 )( f) of the Constitution, it is reasonable restriction in the interests of the general public. Rule 12(4) is therefore within the saving provisions of Art. 19(6), so that there is no contravention of the constitutional provisions.l\1r. Sharma drew our attention to the decision of this Court in Devendra Pratap v. State of Uttar Pratf,esh(') where the effect of r. 54 of the Funda-mental Rules framed bv the State of U. P. under Art. 309 was considered'. It was held that while r. 54 undoubtedly enabled the State Government to fix the pay of public servant where dismissal is set aside in departmental appeal, the rule has no application to cases in which the dismissal of public servant is declared invalid by civil court and he is reinstated and that it would not in such contingency be open to the authority to deprive the · (1) [1962] Supp. 1 S. C.R. 315.

public servant of the remuneration which he would have earned had he been permitted to work. This decision.has however no application to case like the present, where because of the operation of r. 12 ( 4) of the Central Civil Service (Classification, Control & Appeal) Rules, l ~157, the public servant is deemed to be placed under suspension from the date of the original order of dismissal.

This brings us to the attack on the rule on the basis of Art. 14. According to Mr. Sharma thr result of the impugned rule is that where penalty of dismissal, removal or compulsory retirement from service imposed on government servant is set aside pr declared or rendered void in consequence of or by decision of court of law and the disciplinary authority decides to hold further enquiry against him on the allegations on which the penalty was originally imposed, the consequence will follow that the government servant shall be deemed to have been placed under suspension from the date of the origin;il imposition of penalty, whereas no such consequence will follow where similar penalty is set aside not by court of law but by the departmental discipli-nary authori~y. According to Mr. Sharma, therefore, there is discrimination between government servant the penalty of dismissal, removal or com-pulsory retirement on whom is set aside by decision of court of law and another government servant similar penalty on w horn is set aside on appeal by the departmental disciplinary authority. The argu-ment however ignores the result of rule 30 (2) and rule 12 (3) of these rules. Rule 30 (2) provides inter alia that in the case of an appeal against an order imposing any of the penalties specified in rule 13 i.e., the penalty of dismissal, removal or compulsor; retirement and certain other penalties, the appellate authority shall pass o~ders: "(i) setting aside, reducing, confirmmg or cnhancmg the penalty; or (ii) remitting the case to the authority which imposed the penalty

Khe111 Chan1 v. llni1111 1~{ India Dr11· Gupta, J,

Khtm Chand v. Union fJj. India Das Gupta, J,

or to any other authority with such direction as it may deem fit in the circumstances of the case." Rule 12 ( 3) provides that "where penalty of dis-missal, removal or compulsory retirement from service imposed upon Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspen-sion 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." Where penalty of dismissal, removal or compulsory retirement imposed upon government servant is set aside by the depart-mental authority on appeal, it may or may not order further enquiry; just as where similar penalty is set a5ide by decision of court of law the disciplinary authority may or may not direct further enquiry. Where the appellate authority after setting aside penalty of dismissal, removal or compulsory retire-ment makes an order under r. 30 (2) (ii) remitting· the case to the authority which imposed the penalty, for further enquiry, rule 12 (3) will come into opera-tion and so the order of suspension which in almost all cases is likely to be made where disciplinary proceeding is contemplated or is pending r. 12 ( 3) shall be deemed to have continued in force on and from the date of the original order of dismissal and shall remain in force until furthl"r orders. There is therefore no difference worth the name between the effect of rule 12 (4) on government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside bv decision of court of law and further enquiry is decided upon and the effect ofr. 12 (4) on another government servant similar penalty on whom is set aside in appeal or on review by the departmental authority and further enquiry is decided upon. In both cases the government servant will be deemed to be under suspension from the date of the criginal order of dismissal, except

that where in departmental enquiry government servant was not placed under suspension prior to the date when the penalty was imposed, this result will not follow, as r. 12 ( 3) would not then have any operation. It is entirely unlikely however that ordinarily government servant will not be. placed under suspension prior to the date of his dismissal. Rule 12 ( 1) provides that the appointing authority or any authority to which it is subordinate or any other authority empowered by the President in that ~ehalf may place government servant under suspen-s10n :-

(a) where disciplinary proceeding against him is contemplated or is pending, or

(b) where case against him in respect of any criminal offence is under investigation or trial. Mr. Sharma does not say that ordinarily any cases occur where government servant is visited with penalty of dismissal, removal or compulsory retirement, in departmental proceeding, without there being previous order of suspension under the provisions of r. 12(1) and we do not think any such case ordinarily occurs. Consequently, the effect of r. 12(3) will be the same on government servant penalty of dismissal, removal or compulsory retirement on whom is set aside in appeal by the departmental authority as the effect of r. 12(4) on government servant similar penalty on whom is set aside by decision of court of law. The contention that r. 12(4) contravenes Art. 14 of the Constitution must therefore be rejected. As we find that all the above attacks on the validity of r. 12(4) fail, the further attack on the Rule on the basis of Art. 31(1) of the Constitution also necessarily fails. For, whatever deprivation of pro-perty mav result from r. 12(4) would be by author:ty of law-the law being r. 12(4).We have therefore come to the conclusion that the High Court is right in holding that r. 12( 4) is

Khtm Chand v. Union of India

Das Gupta," J.

!Cham Chand v. Union o}· India Das Gupta, J.

September 25.

valid and consequently, in rejecting the appellant's revisional application.

The appeal is dismissed. But, in view of the circumstances of the case we make no order as to costs. Though the appellant has failed in this appeal which was brought by him as pauper, we make no order against him to pay the court-fee which would have been paid by him if he had not been permitted to appeal as pauper.

Appeal dismissed.

JASWANT SUGAR MILLS LTD., MEERUT

LAKSHMICHAND AND OTHERS

(B. P. SINHA, c. J., P. B. K. N. WANCHOO, K. C. DAS GUPTA and

GAJENDRAGADKAR,

J. C. SHAH, JJ.)

Indu.•trial Dispute-Dismi.sal of workmen-Application for permi>Bion before Conciliation OJ!ker-Direction of Conci-liation Officer-Appeal to Appellate Tribunal, if maintainab/,e-Grant of special leave-Competence-U. P. Industrial Disputes Act, 1947 (U. P. 28 of 1947), 88. 3, 8-Industrial Disputes (Appellate Tribunal) A.ct, 1950 (48 of 1950), 88. 2 (c) cl. (iii), 4--Constitution of India, Art. 136.

The workmen of the appellant company resorted. to direct action in order to enforce their demands 'for bonus, leave etc. Thereupon, the company served charge sheets upon sixty-three workmen. The enquiry officer who investigated the charges found that all the workmen were guilty of sabotage and slow-down strike and that they were liable to be dismissed. But as at that time dispute between the company and its workmen relating to payment of bonus was pending before the Industrial Tribunal, the conditions of service of the workmen could not, by virtue of cl. 29 of the order issued in 1954 by the Governor