Hari-Haran v. State — 1954 DIGILAW 169 (KER)

Judgment :- 1. This is an application by Shri. N.P. Hariharan, who was the Director of Information to the Government of Travancore-Cochin, praying for: "(A). the issue of a writ of certiorari quashing the notification of the Government of Travancore-Cochin G. 6-2816/49/CS (Ext. 'J') and the notice of the said Government No. G. 6-2816/49/CS (Ext. 'H') and the order G. 7-8505/49/CS, dated 19th September 1949 (Ext. 'D'); (b). the issue of a writ of mandamus compelling the first counter-petitioner to reinstate the petitioner in service with all privileges; and (c). such other directions to the first counter-petitioner in order that justice may be done to the petitioner". 2. The petitioner was appointed as the Director of Information of the erstwhile Travancore State on 24.8.1937. While in service as such Director the integration of the two States of Travancore and Cochin took place as on 1.7.1949. On 9.9.1949 the Government of the integrated State of Travancore-Cochin sent a communication Ext. A to the petitioner as follows: "Government have received a number of complaints against you. These complaints relate to the manner in which you have accounted for Government moneys, to the purchases you have made charging Government higher amounts than the actual prices, recovering from the Government double payments for the same item of expenditure and so on. It has therefore been decided that you must be given the option either to resign from Government service or stand suspended and face an inquiry. I am to ask you to let me know immediately which your choice is. I would have preferred to communicate this decision of the Government in person, but as you are not in office today, I am compelled to write to you". The petitioner sent his reply thereto on the 14th September 1949 which reads thus: "I beg to tender my resignation of my service in the United State of Travancore and Cochin as from the evening of Monday, 19th September, as it is my intention to take up service elsewhere. I shall therefore be glad if you will kindly accept my resignation and arrange for me to be relieved on the evening of Monday. I have put in a total service of twelve years and one month and in view of this I would request you to consider my case sympathetically and grant such gratuity or proportionate pension as you would consider justifiable". I have put in a total service of twelve years and one month and in view of this I would request you to consider my case sympathetically and grant such gratuity or proportionate pension as you would consider justifiable". This was accompanied by another letter to the petitioner wherein he stated: "As I am resigning from the service of the State from the evening of Monday, September 19th, I shall be grateful if you will kindly issue orders to the Accountant-General to disburse to me my provident fund and my salary for the period I have been in service during this month on September, 19th itself. This payment would enable me to settle my accounts here and set up a new establishment elsewhere. I shall also be grateful if you will issue orders for the payment to me of any other money due to me such as my T.A., etc. On receiving the above the Government issued a Press Note on even date i.e., on 14.9.1949 as follows: "N.P. Hariharan, Director of Information, has tendered his resignation as he intends to take up service elsewhere. The resignation has been accepted by Government with effect from Monday, the 19th September 1949". 3. Three days later, that is, on 16.9.1949 the Government passed the following proceedings:-"Read: Letter dated 14th September 1949 from the Director of Information. Order: G7/8504/49/CS dated 16th September 1949. Sri. N.P. Hariharan, Director of Information, is permitted to resign with effect from the after-noon of Monday. 19th September 1949. Sri. K.P. Padmanabhan Thampy, Assistant Information Officer, is to be in additional charge of the duties of Director of Information". and the sub joined separate proceedings after reading the above second letter of the petitioner:- "Read: Letter dated 14.9.1949 from Mr. N.P. Hariharan, Director of Information. Order: G7/8504/49/CS dated 16th September 1949. In view of his resignation from service the Provident Fund and salary due to Sri. N.P. Hariharan will be disbursed after his relief and production of non-liability certificate. The Assistant in charge will take charge of all the articles including cinema equipment etc. purchased on behalf of Government by the Director of Information in consultation with the Accountant-General and report to Government". 4. N.P. Hariharan will be disbursed after his relief and production of non-liability certificate. The Assistant in charge will take charge of all the articles including cinema equipment etc. purchased on behalf of Government by the Director of Information in consultation with the Accountant-General and report to Government". 4. Early in the morning on 19th September 1949 the petitioner was arrested by the Inspector of Police on the basis of an information from the Assistant Information Officer, charging criminal offences and later on that day the Government passed the following proceedings (Ext. D): "Read: Proceedings G7/8504/49/CS dated 16.9.1949. Order: G7/8504/49/CS dated 19th September 1949. The order read above permitting Sri. N.P. Hariharan, Director of Information, to resign, is cancelled. He is placed under suspension with effect from the fore-noon of Monday, 19th September, 1949. 2. Sri. K.P. Padmanabhan Thampy will be in additional charge of the post of Director of Information with immediate effect". 5. Three criminal prosecutions C.C. No. 103, C.C. No. 104 and C.C. No.105 of 1950 on the file of the Additional First Class Magistrate's Court, Trivandrum, were launched against the petitioner. The first and the third related to alleged acts before 24.3.1948 and were quashed by the Magistrate on the ground that they were not supported by the sanction of His Highness the Raj Pramukh which was necessary under Art. 20 of the Covenant entered into between the Rulers of the States of Travancore and Cochin for purpose of integration. C.C. No. 104 had not that defect because the Raj Pramukh had accorded sanction to prosecute on the charges laid against the petitioner regarding acts done after 24.3.1948 and the acts complained of were subsequent to that date. The petitioner's contention in this case was that the charge disclosed no offence against him. The Magistrate repelled this contention. The petitioner approached this court in revision, Crl. R.P. 15 of 1951 and succeeded as this court upheld his plea, allowed the revision and discharged him. That decision was rendered on 16.3.1951 and is reported in 1951 K.L.T. 344. 6. On the termination of the said prosecutions in his favour as aforesaid the petitioner applied for the cancellation of the order of suspension that had been made on his arrest and prayed that he may be permitted to rejoin service. No orders were passed on this petition despite reminders. Ultimately on 25.3.1954 the Government issued the following notice Ext. 6. On the termination of the said prosecutions in his favour as aforesaid the petitioner applied for the cancellation of the order of suspension that had been made on his arrest and prayed that he may be permitted to rejoin service. No orders were passed on this petition despite reminders. Ultimately on 25.3.1954 the Government issued the following notice Ext. H to the petitioner: "Under S. 3 of the Travancore Public Servants (Inquiries) Act, 1122 (Act XI of 1122) as continued in force by the Travancore-Cochin Administration and Application of Laws Act, 1125 (Act VI of 1125) Sri. N.P. Hariharan, Director of Information (Under suspension) is hereby given notice that Sri. B.V.K. Menon, I.A.S., First Member, Board of Revenue, Trivandrum, has been appointed Commissioner to conduct a formal and public enquiry into the truth of the imputation of misconduct by him'' . This was followed by a notification of even date (Ext. J) which was published on 29.3.1954 ordering a formal and public enquiry into the truth of the imputations of misconduct against him. The petitioner seeks in relief A prayed for in this application to have the said notice regarding an order for enquiry as also the order of the Government cancelling their acceptance of his resignation quashed. 7. In the view that we take of the matter it appears to us to be unnecessary to consider any of the various points in controversy as disclosed by the affidavit and counter-affidavit. The offer of the Government to the petitioner to choose between the two alternatives, namely, resigning his post or facing an enquiry into the complaints raised against him, was availed of by the petitioner in choosing the former, that is, to resign his post, in order that he may be enabled to enter service elsewhere without any blemish on his character. The Government accepted this resignation on the terms on which it was tendered. The resignation, no doubt, was to take effect not on the date on which it was tendered but a few days later, i.e., on 19.9.1949. The legal effect of this event was for ever to terminate the nexus between the petitioner and the State. By 19.9.1949 the petitioner automatically ceased to be a servant of the State. 8. It is not competent for either the Government or the petitioner to resile from this position. The legal effect of this event was for ever to terminate the nexus between the petitioner and the State. By 19.9.1949 the petitioner automatically ceased to be a servant of the State. 8. It is not competent for either the Government or the petitioner to resile from this position. The petitioner cannot withdraw the resignation nor can the Government cancel their acceptance of it so as to enable the petitioner to continue in service. On acceptance of the resignation the cessation of the relation between the petitioner and the Government became a fiat accompli as from the appointed time. In respect of acts of misconduct complained of against the petitioner before the date of the offer of the alternative of resignation, the offer amounts to a waiver by the Government of their right to pursue any remedy against the petitioner should he elect to accept it. He elected the alternative of resignation which was tendered and accepted. The Government can't say thereafter that the petitioner is in any manner blameworthy in respect of any act or omission antecedent thereto. Had there been any case of an act or omission between the date of the acceptance of the resignation tendered and the date on which it was due to take effect, which is not the case here, the matter might have been different. Except as a result of reappointment the petitioner cannot be the servant of the State after 19.9.1949. There is no case of any re-appointment. It would appear, however, that the State thought and the petitioner concurred in the view that in impugned proceedings against the petitioner started before the time appointed for the resignation to take effect, could be continued treating him as the servant of the State amenable to be dealt with as such. Both parties appear to have been under a misapprehension in this matter. We are clear that in the admitted events that happened the petitioner ceased to be a servant of the State on and after 19.9.1949. The cessation of the relationship of master and servant may not by itself render an enquiry after such cessation into the conduct antecedent thereto incompetent. We are clear that in the admitted events that happened the petitioner ceased to be a servant of the State on and after 19.9.1949. The cessation of the relationship of master and servant may not by itself render an enquiry after such cessation into the conduct antecedent thereto incompetent. In this case the State gave the choice to their servant the petitioner while he was in service either to resign and leave the service without any blemish on his character or to face an enquiry which they proposed to start against him. The petitioner opted for the first and the option was accepted by the State. The reason for doing so was that the petitioner wanted to seek service elsewhere and the State did not want to stand in the way of his doing so. The State therefore expressly waived their right to call in question any act or omission of the petitioner while he was in service. They agreed to consider his conduct as above board and were satisfied with his resignation. It is not therefore competent to them to start an enquiry against the petitioner in respect of any act or omission of his while he was in service. 9. The enquiry which the State the 1st respondent propose to start against the petitioner under Travancore Act, XI of 1122 for which the 2nd respondent has been appointed as Commissioner is, because of the waiver of the State of their right to proceed against the petitioner in respect of his antecedent conduct, incompetent and the notice to the petitioner (Ext. D) containing the order appointing the 2nd respondent as Commissioner therefor should be quashed. The notification regarding that enquiry (Ext. J) containing the schedule of charges should also be quashed on that ground. The order (Ext. H) cancelling the Government's acceptance of the petitioner's resignation is ultra vires and inoperative and should be quashed. The order of suspension as preliminary to the said enquiry and any other step against the petitioner for the purpose of that enquiry will naturally stand cancelled. 10. Relief (A) in the petition is allowed in the manner and for the reason indicated above and the other reliefs in the view that we take do not arise for consideration. We make no order as to costs. 11. 10. Relief (A) in the petition is allowed in the manner and for the reason indicated above and the other reliefs in the view that we take do not arise for consideration. We make no order as to costs. 11. Before parting with this case we think that it won't be out of place if we express our belief that in view of the three prosecutions which all ended in favour of the petitioner and in view of the fact that for five years the petitioner had to face one investigation or another and in view also of the fact that this petition has been allowed quashing the enquiry ordered against him, the State will review the case of the petitioner sympathetically and give him such redress as is possible in the circumstances. Allowed.