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1963 Supreme(Raj) 65
High Court Of Rajasthan
Judgename : I.N.Modi
JAIWANT RAO - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Second Appeal 569 Of 1962
Decided On : 03/20/1963
N.M.Singhvi, R.A.GUPTA
A retrospective order of suspension cannot be passed in law, and similarly a retrospective order of discharge cannot be passed. An order of suspension can operate prospectively even if it cannot be operative retrospectively, provided that it is not merged in any order of discharge which may have been set aside.
Headnote:
CONSTITUTION OF INDIA, 1950 - ARTICLE 311 - RAJASTHAN CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1958 - RULE 16 - RAJASTHAN SERVICE RULES - DEPARTMENTAL INQUIRY - VALIDITY - SUSPENSION - RETROSPECTIVE EFFECT - DISCHARGE FROM SERVICE - EFFECT - ARREARS OF SALARY.
Fact of the Case:
The plaintiff, Jaiwant Rao, was a Supervisor of the Opium Factory at Kotah. He was placed under suspension on 7th May, 1949, and was discharged from service on 26th December, 1950, after a departmental inquiry. The order of discharge was set aside on 26th December, 1950, and a fresh inquiry was ordered. The plaintiff was again discharged from service on 24th/26th September, 1951, with effect from 26th December, 1950. This order was also set aside on 15th July, 1955, and a second show-cause notice was issued to the plaintiff. The plaintiff was finally discharged from service on 16th June, 1956, with effect from the same date.
Finding of the Court:
1. The departmental inquiry conducted against the plaintiff was valid and in accordance with Rule 16 of the Rajasthan Service Rules and Article 311(2) of the Constitution. 2. The order of suspension dated 15th July, 1955, could operate prospectively from that date, even though it could not be operative retrospectively. 3. The order of discharge dated 16th June, 1956, as modified by the order of 18th December, 1956, was valid and the plaintiff was not entitled to any emoluments for the period from 16th June, 1956, to 18th December, 1956.
Issues: 1. Whether the departmental inquiry conducted against the plaintiff was valid and in accordance with Rule 16 of the Rajasthan Service Rules and Article 311(2) of the Constitution? 2. Whether the order of suspension dated 15th July, 1955, could operate prospectively from that date, even though it could not be operative retrospectively? 3. Whether the order of discharge dated 16th June, 1956, as modified by the order of 18th December, 1956, was valid and the plaintiff was entitled to any emoluments for the period from 16th June, 1956, to 18th December, 1956?
Ratio Decidendi: 1. The departmental inquiry conducted against the plaintiff was valid and in accordance with Rule 16 of the Rajasthan Service Rules and Article 311(2) of the Constitution, as the irregularity in the recording of evidence by the Additional Commissioner was waived by the plaintiff and did not cause any prejudice to him. 2. The order of suspension dated 15th July, 1955, could operate prospectively from that date, even though it could not be operative retrospectively, as the order of discharge dated 16th June, 1956, was never cancelled or set aside and the order of suspension could not be said to have merged in any order of discharge which may have been set aside. 3. The order of discharge dated 16th June, 1956, as modified by the order of 18th December, 1956, was valid and the plaintiff was not entitled to any emoluments for the period from 16th June, 1956, to 18th December, 1956, as the order of suspension dated 15th July, 1955, could take effect prospectively and nothing that was done thereafter affected this order adversely.
Final Decision: 1. The plaintiff's appeal No. 292 of 1958 was allowed, and the decree passed by the learned District Judge for Rs. 4253/- was enhanced by a further sum of Rs. 4850/-, totaling Rs. 9103/-. 2. The plaintiff's appeal No. 173 of 1962 was dismissed, and the plaintiff was held entitled only to subsistence allowance for the period from 16th July, 1955, to 15th June, 1956, amounting to Rs. 716.0-4 np. 3. The defendant's appeal No. 569 of 1962 was allowed, and the judgment and decree of the learned District Judge was modified to hold that the plaintiff was not entitled either to subsistence allowance or pay for the period from 16th June, 1956, to 18th December, 1956.
I. N. MODI, J.
( 1 ) THESE are three connected appeals and arise out of the same facts, which have been the subject-matter of two separate suits filed by the same plaintiff Jaiwant rao against the defendant State. Appeal No. 292 of 1953 has been filed by the plaintiff and arises out of suit No. 206 of 1954. The remaining two appeals Nos. 173 and 569 of 1962 arise out of suit No. 25 of 1957, and of these, the former has been filed by the plaintiff and the latter by the defendant State. I propose to dispose of all these three appeals by a single judgment.
( 2 ) THE basic facts out of which these appeals arise are practically admitted or proved. The plaintiff Jaiwant Rao originally belonged to the service of the covenanting State of Kotah as it then was. When that State was integrated with the first United State of Rajasthan in 1948, he held the post of a Supervisor of the opium Factory at Kotah having been appointed to it by an order dated the 10th november, 1948, It seems that the plaintiff was designated as Superintendent, customs and Excise, Opium Factory, Kotah, at the time with which we are concerned. On the 7th May, 1949, he proceeded on ten days casual leave. Before going on this leave, he had applied for six months privilege leave to the commissioner, Customs and Excise, Udaipur. This leave was, however, not sanctioned. It may also be mentioned at this place that the plaintiff had in the meantime been transferred from Kotah to Sironj by an order dated the 9th April, 1949. But somehow he did not hand over charge of his post at Kotah for some time and he did so only on the 6th of May, 1949, and then proceeded on ten days leave on the 7th May, 1949, without carrying out the order of his transfer. An explanation was called from him and it having been considered unsatisfactory he was straightway dismissed by an order of the Commissioner, Customs and Excise dated the 28th october, 1949, Ex. 20. The plaintiff then preferred an appeal from that order to the State Government. By an order dated the 26th December, 1950 (Ex. 23) the order of dismissal was set aside as it was obviously illegal having been passed without any inquiry being made into the conduct of the plaintiff, and it was further ordered that he be suspended forthwith and a departmental inquiry be started, against him. Thereafter the Commissioner Kotah Division Kotah (Shri Gordhan Singh) was appointed as Inquiry Officer to make the departmental enquiry against him. The plaintiff was served with a charge-sheet, and an inquiry was made into the charges levelled against him, and it was found that some of the charges were proved against him and so by an order (Ex. 25) dated the 24/26th September, 1951 he was discharged from Government service from the 26th December, 1950, that is with effect from the date he was suspended by the State Government after consultation with the State Public Service Commission. It may also be mentioned here that by an order of the Deputy Commissioner customs and Excise dated the 8th July, 1952 (Ex. 29) the period from 7th May, 1949, upto the 7th November, 1949, being a portion of the period during which the plaintiff was absent from duty was treated as leave without pay and allowances. The plaintiff then gave the requisite statutory notice under S. 80 of the Code of Civil Procedure to the State and instituted suit No. 206 of 1954 in the court of the Civil Judge, Kotah.
( 3 ) THE allegations on which this suit was founded were that the plaintiff had not been served with any notice under Article 311 of the Constitution against the order of discharge or removal passed against him, and, therefore, that order was entirely illegal, void and inoperative, and further that the inquiry which was made against him was not in accordance with Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, (hereinafter referred to as the rajasthan Service Rules) which was, therefore, of no effect in law. The plaintiff, the
