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High Court Of Madhya Pradesh
P. V. Dixit, C. J. , K. L. Pandey and N. M. Golwalker, JJ.
C.A.Dsouza, C.L.Dsouza - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 22 Of 1958
Decided On : 01/05/1961
The petitioner, who was removed from service, has challenged the various orders passed in regard to him, on the following grounds : (i) The order of suspension dated 24 Sep-tember 1954 operating retrospectively from 30 November 1950 is bad. (ii) The penalty of removal from service is not one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, and could not be awarded. (iii) Suspension is one of the punishment enumerated in Rule 12 of the Home Guards-Rules, 1947. The petitioner was in suspension from 30 November 1950 to 11 June 1956. Since the petitioner was already suspended as a measure of punishment, he could not be punished twice for the same fault by removing him from service. (iv) The petitioner's appeal against removal from service was pending before the Governor of Madhya Pradesh on 1 November 1956 when the States were reorganised. Since the matter related to property belonging to the Home Guards Organisation at Nagpur and Kamptee now in the State of Bombay, only the Governor of that State was competent to hear and dispose of the petitioner's appeal. (v) in the appeal filed by the petitioner, he specifically prayed that he should be given a personal hearing. This was denied to him. (vi) The punishment awarded, being excessive and unreasonable, should be relieved against because the petitioner's suspension for over 5 years was not duly taken into account.
Fact of the Case:
The petitioner, who was removed from service, challenged the various orders passed in regard to him on the grounds that the order of suspension dated 24 September 1954 operating retrospectively from 30 November 1950 was bad, the penalty of removal from service was not one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, and could not be awarded, suspension was one of the punishments enumerated in Rule 12 of the Home Guards-Rules, 1947, and the petitioner was in suspension from 30 November 1950 to 11 June 1956, and since the petitioner was already suspended as a measure of punishment, he could not be punished twice for the same fault by removing him from service, the petitioner's appeal against removal from service was pending before the Governor of Madhya Pradesh on 1 November 1956 when the States were reorganized, and since the matter related to property belonging to the Home Guards Organisation at Nagpur and Kamptee now in the State of Bombay, only the Governor of that State was competent to hear and dispose of the petitioner's appeal, in the appeal filed by the petitioner, he specifically prayed that he should be given a personal hearing, this was denied to him, and the punishment awarded, being excessive and unreasonable, should be relieved against because the petitioner's suspension for over 5 years was not duly taken into account.
Finding of the Court:
The court found that the order of suspension dated 24 September 1954 operating retrospectively from 30 November 1950 was bad and quashed it, the penalty of removal from service was not one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, but the State Government was competent to award the lesser penalty of removal from service, the petitioner was not given a reasonable opportunity of showing cause against the proposed punishment of removal from service, and the punishment of removal from service was excessive and unreasonable.
Issues: Whether the order of suspension dated 24 September 1954 operating retrospectively from 30 November 1950 was bad, whether the penalty of removal from service was one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, whether suspension was one of the punishments enumerated in Rule 12 of the Home Guards-Rules, 1947, and the petitioner was in suspension from 30 November 1950 to 11 June 1956, and since the petitioner was already suspended as a measure of punishment, he could not be punished twice for the same fault by removing him from service, whether the petitioner's appeal against removal from service was pending before the Governor of Madhya Pradesh on 1 November 1956 when the States were reorganized, and since the matter related to property belonging to the Home Guards Organisation at Nagpur and Kamptee now in the State of Bombay, only the Governor of that State was competent to hear and dispose of the petitioner's appeal, whether in the appeal filed by the petitioner, he specifically prayed that he should be given a personal hearing, this was denied to him, and whether the punishment awarded, being excessive and unreasonable, should be relieved against because the petitioner's suspension for over 5 years was not duly taken into account.
Ratio Decidendi: The court held that the order of suspension dated 24 September 1954 operating retrospectively from 30 November 1950 was bad and quashed it, the penalty of removal from service was not one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, but the State Government was competent to award the lesser penalty of removal from service, the petitioner was not given a reasonable opportunity of showing cause against the proposed punishment of removal from service, and the punishment of removal from service was excessive and unreasonable. The court relied on the following principles: (i) A retrospective order of suspension cannot be sustained. (ii) The penalty of removal from service is not one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, but the State Government is competent to award the lesser penalty of removal from service. (iii) A reasonable opportunity of showing cause against the proposed punishment must be given to the petitioner. (iv) The punishment of removal from service is excessive and unreasonable.
Final Decision: The court allowed the petition, quashed the order of suspension dated 24 September 1954 operating retrospectively from 30 November 1950, and quashed the order of removal from service. The court also directed that the parties shall bear their own costs and that the security deposited by the petitioner shall be refunded to him.
( 1 ) THE petitioner, who was removed from service, has challenged the various orders passed in regard to him, on the following grounds :
(i) The order of suspension dated 24 Sep-tember 1954 operating retrospectively from 30 November 1950 is bad. (ii) The penalty of removal from service is not one of the punishments prescribed by Rule 12 of the Home Guards Rules, 1947, and could not be awarded. (iii) Suspension is one of the punishment enumerated in Rule 12 of the Home Guards-Rules, 1947. The petitioner was in suspension from 30 November 1950 to 11 June 1956. Since the petitioner was already suspended as a measure of punishment, he could not be punished twice for the same fault by removing him from service. (iv) The petitioner's appeal against removal from service was pending before the Governor of Madhya Pradesh on 1 November 1956 when the States were reorganised. Since the matter related to property belonging to the Home Guards Organisation at Nagpur and Kamptee now in the State of Bombay, only the Governor of that State was competent to hear and dispose of the petitioner's appeal. (v) in the appeal filed by the petitioner, he specifically prayed that he should be given a personal hearing. This was denied to him. (vi) The punishment awarded, being excessive and unreasonable, should be relieved against because the petitioner's suspension for over 5 years was not duly taken into account.
( 2 ) ON the first two grounds, I agree with the opinion expressed by my learned brother Golvalker, J. in paragraphs 7 and 8 of the order proposed by him.
( 3 ) IN regard to the third ground, I am of opinion that the petitioner has not been punished more than once. It is true that, on 30 November 1950, the General Officer Commanding, Home Guards, passed an order suspending the petitioner and directing his confinement to barracks but, as admitted by the petitioner himself, it was cancelled soon afterwards and thereupon, on the same day, he submitted his resignation which he subsequently withdrew. Since this was not argued to be a punishment, nothing further need be said about it. It was, however, urged that the suspension from 30 November 1950 to 11 June 1956 should itself be regarded as a separate punishment within, the meaning of Rule 12 of the Home Guards Rules, 1947. By an order of the State Government dated 21 December 1950, the petitioner was suspended with effect from 30 November 1950 pending the result of the departmental enquiry ordered against him. Again, when the earlier order of removal of the petitioner from service dated 26 June 1951 was set aside by the High Court on 31 August 1954, the State Government, by a fresh, order dated 24 September 1954, decided to continue him "under suspension with effect from 30th November 1950 to enable them to hold a proper enquiry against him". The order of suspension in this case was passed in order to enable a proper departmental enquiry to be held against the petitioner. It was not a substantive punishment inflicted after he was adjudged to be guilty of a fault. It was like the one in the Supreme Court case of Om Prakash Gupta v. State of Uttar Pradesh, 1955-2 SCR 391 : ( (S) AIR 1955 SC 600) where their Lordships observed : "the order of suspension made against the appellant was clearly one made pending an enquiry. It certainly was not a penalty imposed after an enquiry. ". That, being so, the contention that the petitioner was punished twice for the same fault is without any basis.
( 4 ) THE fourth ground is also clearly untenable. Assuming that the order of removal of the petitioner from service is liable to be quashed, he would, in the absence of any order of the Central Government finally allotting his services to the Bombay State under Sub-section (3) of Section 115 of the States Reorganisation Act, 1956 (37 of 1956), be deemed to be, under subsection (2) of that section, serving under the principal successor State, which admittedly is, in this case, the new State of Madhya Prade
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