Judgment :- 1. n these proceedings under Art.226 of the Constitution, on behalf of the petitioner, his learned counsel, Mr. K. V. Suryanarayana Iyer, seeks to have the proceedings relating to and culminating in the order, Ext. P-6 in these proceedings, dated 1st August 1961, passed by the respondent State, quashed, and also requests the issue of a writ of mandamus or prohibition forbearing the respondent from giving effect to and from acting on or doing anything in pursuance of the order Ext. P-6. 2. Ext. P-6 is the order passed by the State Government dated 1st August 1961, compulsorily retiring the petitioner from service from the date of his suspension, namely, 13th November 1956, & also giving a further direction that the petitioner will be given the benefits of the pension that he is entitled to according to rules. This order is one passed as and by way of punishment in consequence of certain disciplinary proceedings conducted as against the petitioner, to which a reference will be made later. 3. In consequence of certain allegations of misconduct stated to have been brought to the notice of the State Government against certain officers of the Forest Department, including the petitioner, under Ext, P-1, dated 9th November 1956, the State Government expressed the view that there are sufficient grounds for making a formal and public enquiry into the truth of the imputations against the officers mentioned therein, including the petitioner. The order also is to the effect that the petitioner is placed under suspension pending enquiry. Along with Ext. P-1, the Articles of Charges framed by the State Government, were also forwarded to the respective officers. 4. The enquiry was directed to be conducted under the provisions of the Travancore Public Servants (Inquiry) Act, 1122, Act XI of 1122; and under S.3 of the Act, the Government appointed the Hon'ble Shri Justice G. Kumara Pillai, as Commissioner; and the enquiry was committed to the said Commissioner. 5. The Articles of Charges framed by the State Government as against the petitioner are contained in Ext. P-2 and they are as follows: XX X X (omitted.) 6. At this stage, it may be mentioned that it is not necessary to pursue further the allegation under count (h) of Charge No. 1, nor Charges 2, 3 and 4; because in respect of these allegations, the Commissioner has recorded findings in favour of the petitioner. P-2 and they are as follows: XX X X (omitted.) 6. At this stage, it may be mentioned that it is not necessary to pursue further the allegation under count (h) of Charge No. 1, nor Charges 2, 3 and 4; because in respect of these allegations, the Commissioner has recorded findings in favour of the petitioner. But anyhow to give a complete picture of the nature of the charges that were framed as against the petitioner, they have also been given in the above extract. 7. The actual order of suspension passed against; the Forest Officers, including the petitioner, is evidenced by Ext. P-3, and there is no controversy that it was published in the State Gazette on 13th November 1956. This order placing the petitioner under suspension, pending enquiry into the truth of the imputations of misconduct as against him. has been passed under Clause.4 of the Travancore-Cochin Government Order, R. Dis. 9033/51/CS., dated 3rd April 1951, which was to the effect that a Government servant may be placed under suspension from service, pending enquiry into grave charges, where such suspension is necessary in the public interest. The actual order placing the petitioner under suspension is not under attack in these proceedings and, therefore, it is not necessary to consider further about this order. 8. The petitioner appears to have filed a fairly lengthy written explanation controverting the various allegations levelled as against him; and the Commissioner, after conducting the enquiry, has ultimately sent a report evidenced by Ext. P-5. It is enough at this stage to mention that the Commissioner has found the petitioner guilty of Charge No. 1, counts (a) to (g) & acquitted the petitioner under Charge (1) (h) and Charges 2,3 and 4. 9. The State Government by its memorandum dated 17th April 1958 Ext. P-4, after setting out the circumstances under which the enquiry was committed to the Commissioner, and after adverting to the charges as against the petitioner and the findings recorded by the Commissioner, states' that the Commissioner has recorded findings to the effect that the imputations contained in Charge No. 1, counts (a) to (g) as against the petitioner have been proved. The Government further state that they accept those findings of the Enquiry Commissioner recorded as against the petitioner, and after a careful consideration of the gravity of the offence committed by the petitioner, and after consulting the Kerala Public Service Commission, the Government propose that the petitioner should be dismissed from service with effect from the date on which he was placed under suspension. There is a further direction in the said order, Ext. P-4, calling upon the petitioner to show cause within the time mentioned therein as to why action should not be taken against him as proposed in the said communication. Along with this communication, the petitioner was also given a copy of the report of the Enquiry Commissioner,Ext. P-5. 10. The petitioner, in response to this show cause notice, Ext. P-4, dated 17th April 1958, submitted his explanation on 17th May 1958 and attacked the various findings recorded by the Enquiry Commissioner and also pleaded that the findings recorded are not correct and cannot be sustained and that he is not guilty of any of the charges, as per the findings recorded by the Enquiry Commissioner. That explanation of the petitioner, dated 17th May 1958 is a fairly lengthy explanation & he has raised all possible contentions that he could under the circumstances, and his ultimate plea was one of innocence and that the report should not be accepted & no further action should be taken as against him. 11. His representations were heard by the then Minister in charge of the portfolio in the first instance on 25th April 1959. There was another hearing by another Minister on 7th June 1960. After all this procedure was gone through, the order, Ext. P-6, was passed by the State Government on 1st August 1961. In Ext. P-6, the Government refer to the circumstances under which the contract, according to them, was given to the contractor in question and to the circumstances under which the proceedings were initiated as against the petitioner as also the findings recorded by the Enquiry Commissioner. The Government also advert to their proposal to inflict a punishment of dismissal after accepting the findings of the Enquiry Commissioner and having called upon the petitioner by the show cause notice as to why action should not be taken as indicated in the said notice. 12. The Government also advert to their proposal to inflict a punishment of dismissal after accepting the findings of the Enquiry Commissioner and having called upon the petitioner by the show cause notice as to why action should not be taken as indicated in the said notice. 12. Government also advert to the explanations furnished by the petitioner on 17th May 1958 in response to show cause notice issued by the State Government, and also to having heard the advocates of the petitioner at length on several occasions. The Government further state that, after having due regard to the various explanations submitted by the petitioner, and in view of the points urged by his advocates when the hearing was given, they felt that the extreme punishment of dismissal proposed under Ext. P-4 was too severe and, therefore, they decided that the ends of justice would be met by compulsorily retiring the petitioner from service from the date of his suspension. It is also stated that the Public Service Commission does not agree with the proposals of the Government, as that authority was of the view that there was no justification for changing the original advice already tendered by it. 13. After adverting to all these circumstances, the State Government further state that they have carefully considered the various circumstances of the case as well as the past services of the petitioner. The Government also state that the petitioner, as Chief Conservator of Forests, has a record of loyal service in the Department for a period of about 25 years. They also advert to the fact that normally the petitioner would retire only in May 1964; and having due regard to all these circumstances, they express the view that the punishment of dismissal proposed as against the petitioner would be too severe and that compulsory retirement would be an adequate punishment in itself. On this basis, the Government finally state that the petitioner, who was the Chief Conservator of Forests, is to be compulsorily retired from service from the date of his suspension, namely, 13th November 1956, and that he is to be given the benefits of the pension that he is entitled according to the rules. The copies of the communications received from the Public Service Commission containing their advice given to the Government, were also forwarded to the petitioner. (Paragraphs 14 to 89 omitted.) 90. The copies of the communications received from the Public Service Commission containing their advice given to the Government, were also forwarded to the petitioner. (Paragraphs 14 to 89 omitted.) 90. The last contention raised by Mr. Surianarayana Iyer, learned counsel for the petitioner, is that the order, Ext. P-6, passed on 1st August 1961, compulsorily retiring the petitioner from a retrospective date, namely 13th November 1956, the date of his suspension, is illegal and void. I understood the learned counsel to urge that punishment by way of suspension, dismissal, removal from service or compulsorily retiring an officer from service with effect from a date anterior to the date of passing the order, is under all circumstances illegal and void. 91. In this case, it will be seen that the petitioner was placed under suspension by the order Ext. P-1, dated 9th November 1956 and there is no controversy that the order of suspension was published on 13th November 1956 and came into effect from that date. The report of the Enquiry Commissioner, Ext. P-5, is dated 22nd July 1957; the show-cause notice, Ext. P-4, was issued on 17th April 1958, nearly nine months after Ext. P-5; the petitioner submitted his explanation on 17th May 1958, and his representations were heard by the Minister on 25th April 1959 and 7th June 1960, and the final order, Ext. P-6, has been passed on 1st August 1961. No doubt, the grievance of the petitioner that there has been delay at every stage, after submission of the report by the Commissioner, appears to have considerable force. But the learned Advocate-General has pointed out the averments in the counter-affidavit that in view of the voluminous evidence recorded in the enquiry, the Government had necessarily to consider about the matter, before they came to a conclusion and it is also stilted that the petitioner was given opportunities to plaice his representation through his counsel on two occasions and all these took some time, more especially when the Government had to consult the Public Service Commission and ascertain their views. In my opinion, allowing for all these circumstances urged by the learned Advocate-General, nevertheless there has been delay at every stage after the receipt of the Report, Ext. P-5. But the question is whether the contention of Mr. Surianarayana Iyer, learned counsel for the petitioner, that the order, Ext. In my opinion, allowing for all these circumstances urged by the learned Advocate-General, nevertheless there has been delay at every stage after the receipt of the Report, Ext. P-5. But the question is whether the contention of Mr. Surianarayana Iyer, learned counsel for the petitioner, that the order, Ext. P-6 compulsorily retiring the petitioner from service retrospectively, is invalid or illegal, can be accepted. 92. No doubt, the learned Advocate-General has placed before me certain decisions of the various High Courts as well as the decision of the Court of Appeal reported in Wallwork v. Fielding (1922) 2 K. B. 66. Those decisions were referred to by the learned Advocate-Genera! regarding the effect of a suspension pending an enquiry when there is a power to so suspend and the effect of a suspension, when there is no such power. But it is not really necessary for me to consider these decisions, because most of the decisions including that of the Court of Appeal, have been adverted to and considered by our Supreme Court in the decision reported in Hotel Imperial v. Hotel Workers' Union AIR. 1.959 SC. 1,42. At page 1345, the learned judges observe: "It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay." In this case, I have already stated in the earlier part of the judgment, that the suspension of the petitioner pending enquiry is by virtue of the powers contained in Clause.4 of the Notification issued by the Travancore-Cochin Government, dated 3rd April 1951. The order of suspension is not in any way challenged. Therefore, the suspension pending enquiry has been ordered by virtue of the powers vested in the Government. Mr. Surianarayana Iyer, learned counsel, urged that inasmuch as the suspension pending enquiry does not once for all terminate the relationship of master and servant, it is not open to the authority to pass an order of dismissal or compulsorily retire from service with effect from an anterior date. That, according to the learned counsel, will mean that the authority concerned terminates the relationship of master and servant even from the date when an officer was placed under suspension, when according to law, even the order placing a person under suspension pending enquiry will not have that effect. This proposition is strongly controverted by the learned Advocate-General. According to the learned Advocate-General, whatever may be the position regarding imposing a punishment of suspension retrospectively and whatever may be the position, if an officer has not been placed under suspension at all pending enquiry, when once an officer has been placed under suspension pending enquiry, he has been effectively put out of service and it is open to the Government to pass final orders of dismissal or compulsory retirement taking effect from the date of the original order placing a person under suspension. The learned Advocate-General further urged that an officer cannot be forthwith punished without an enquiry into his conduct and necessarily that enquiry will take some time; but nevertheless when once a person is found guilty and is punished, the punishment can take effect retrospectively. 93. No doubt, Mr. Surianarayana Iyer referred me to the decisions of the Calcutta High Court in Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340, Amulya Kumar v. L. M. Bhakshi AIR. 1958 Cal. 93. No doubt, Mr. Surianarayana Iyer referred me to the decisions of the Calcutta High Court in Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340, Amulya Kumar v. L. M. Bhakshi AIR. 1958 Cal. 470, Satyendra Kumar Dutta v. District Board AIR. 1959 Cal. 536 and Sudhir Ranjan v. State of West Bengal AIR. 1961 Cal. 626. It is also seen that the Calcutta High Court has been more or less taking the view that an order of suspension, dismissal or removal from service, cannot be passed to take effect retrospectively. 94. In Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340 Chakravartti, C. J., and Lahiri, J. had to consider the validity of an order placing an officer under suspension to take effect retrospectively. The learned Chief Justice, after referring to the meaning of the expression "suspension" as given in the Oxford Dictionary, observes at page 343: ""Thus, the basic idea underlying the root word 'suspend' and all its derivatives is that a person, while holding an office and performing its functions, or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position or privilege. He is intercepted in the exercise of his functions or his enjoyment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such being the concept of a suspension order, suspension with retrospective effect is a contradiction in terms." And later on the learned Chief Justice also says that "The antecedent period which an order of suspension with retrospective effect might be intended to cover, would ordinarily be a period during which the person concerned had already performed the duties of his office or held the relevant position" and that there is no meaning in suspending a man from working during a period when the period is past and he has already worked during that period. Mr. K. V. Surianarayana Iyer, no doubt, urged that the same principles laid down by the learned judges with regard to an order placing a person under suspension with retrospective effect, will also apply to an order dismissing a person or compulsorily retiring a person from service retrospectively. 95. In Amulya Kumar v. L. M. Bhakshi AIR. 1958 Cal. Mr. K. V. Surianarayana Iyer, no doubt, urged that the same principles laid down by the learned judges with regard to an order placing a person under suspension with retrospective effect, will also apply to an order dismissing a person or compulsorily retiring a person from service retrospectively. 95. In Amulya Kumar v. L. M. Bhakshi AIR. 1958 Cal. 470, one of the points that was raised appears to have been that an order discharging a person from service with effect from an anterior date is invalid. So far as that is concerned, the learned judge refers to an unreported decision of the Calcutta High Court and observes that the principle of law is well settled that an order of dismissal cannot be made with retrospective effect. If I may say so with great respect, there is no further discussion on this aspect. In Satyendra Kumar Dutta v. District Board AIR. 1959 Cal. 536 the learned Judges, Mukherjee and Banerjee, JJ. had to consider an order dismissing an employee with retrospective effect and that order was challenged as illegal. It is seen that counsel appearing for the District Board in those proceedings did not contest the position that an order dismissing a person cannot be passed retrospectively. Here again, there is no further discussion and more or less, on the basis of the concession of the counsel, the order appears to have been held to be bad. The recent decision of the Calcutta High Court is the one reported in Sudhir Ranjan v. State of West Bengal AIR. 1961 Cal. 626 where Banerjee & Niyogi, JJ. had to consider the validity of an order dismissing or removing a person from service with retrospective effect. It is seen that the officer in that case was placed under suspension on 4th November 1957 and an order of removal was passed on 13th August 1958 to take effect from the date of suspension. Banerjee, J. delivering judgment on behalf of the Bench, expressed the view that "Suspension or dismissal or removal from service with retrospective effect has always be on condemned by the court as illegal and void." After laying down this proposition, the learned judge refers to the decisions in Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340, Amulya Kumar v.L. M. Bhakshi AIR. 1958 Cal. 470 & Satyendra Kumar Dutta v. District Board AIR. 1959 Cal. 536. 1954 Cal. 340, Amulya Kumar v.L. M. Bhakshi AIR. 1958 Cal. 470 & Satyendra Kumar Dutta v. District Board AIR. 1959 Cal. 536. Here again, if I may say so with respect, there is no further discussion on this aspect. In this Calcutta case also, it will be seen that the counsel appearing for the State did not attempt to support the retrospective part of the order of dismissal. Therefore, it will be seen that in the decisions in Satyendra Kumar Dutta v. District Board AIR. 1959 Cal. 536 and Sudhir Ranjan v. State of West Bengal AIR. 1961 Cal. 626 where the orders dismissing an officer with retrospective effect were challenged, the State did not controvert the illegality of such an order and in the decision in Amulya Kumar v. L. M. Bhakshi AIR. 1958 Cal. 470, where again the order dismissing a party with retrospective effect was challenged, that was upheld after referring to an unreported decision of the Calcutta High Court. 96. Therefore, it will be seen that the Calcutta High Court has been taking uniformly the view that suspension or dismissal or removal from service with retrospective effect is illegal & invalid; but, if I may say so with respect, the discussion regarding as to why an officer cannot be placed under suspension, with retrospective effect is contained only in Hemanta Kumar v. S. N. Mukherjee AIR 1954 Cal. 340. In all the other Calcutta decisions, so far as I could see, excepting laying down a proposition that an order of dismissal retrospectively is illegal, if I may say so with respect, there is no further discussion as to on what principle such a decision is arrived at. I have also shown that in two of the Calcutta decisions at any rate, the decision regarding the illegality of an order of dismissal with retrospective effect was arrived at because that position was not challenged by the concerned counsel. 97. I have no hesitation,if I may so with respect, to accept the principle laid down by the learned judges of the Calcutta High Court in the decision reported in Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340 that an order placing a person under suspension with retrospective effect, cannot he sustained. 97. I have no hesitation,if I may so with respect, to accept the principle laid down by the learned judges of the Calcutta High Court in the decision reported in Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340 that an order placing a person under suspension with retrospective effect, cannot he sustained. Because, as the learned Chief Justice has pointed out in that decision, when a person has been actually performing his duties up to a particular date, there is absolutely no meaning in placing him under suspension with effect from a retrospective date, during which period he has been working. 98. Mr. Surianarayana Iyer, learned counsel for the petitioner, urged for my acceptance that the same principles laid down by the Calcutta High Court regarding the retrospective nature of an order of suspension in Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340 will apply also to an order either dismissing from service or compulsorily retiring an officer from service with retrospective effect. Learned counsel also urged for my acceptance that these principles have been applied in the case of orders passed dismissing a person retrospectively by the Calcutta High Court in the decisions in Amulya Kumar v. L. M. Bhakshi AIR. 1958 Cal. 470, Satyendra Kumar Dutta v. District Board AIR. 1959 Cal. 536 and in the recent decision in Sudhir Ranjan v. State of West Bengal AIR. 1961 Cal. 626. I have already indicated that these decisions do not express the basis on which such a principle has been laid down by the learned judges and I have also pointed out that in some of these decisions, the position has not been challenged. Therefore, I am not inclined to accept the contention of Mr. K. V. Surianarayana Iyer, learned counsel for the petitioner, that the principles laid down by the learned judges in Hemanta Kumar v. S. N. Mukherjee AIR. 1954 Cal. 340, regarding the illegality of an order of suspension to take retrospective effect will also apply to the case on hand of compulsorily retiring the petitioner retrospectively. 99. In my opinion, if an officer has not been placed under suspension pending an enquiry, it may be that the authority will have no power to pass an order either dismissing him from service or removing him from service or compulsorily retiring him from service with effect from an anterior date. 99. In my opinion, if an officer has not been placed under suspension pending an enquiry, it may be that the authority will have no power to pass an order either dismissing him from service or removing him from service or compulsorily retiring him from service with effect from an anterior date. Under these circumstances, an order passed in any one of the manners indicated above can be intended to take effect only from the date on which the order is actually passed. But in my view, in cases where an officer, as in this case, has been placed under suspension, pending an enquiry by virtue of the powers vested in the Government under the relevant rules, there is full jurisdiction in the Government to pass an order either dismissing or removing or compulsorily retiring the officer from service with effect from the date of the original order placing him under suspension. Such an order cannot certainly go anterior to the date of placing an officer under suspension. But otherwise, I do not see any illegality in such orders being passed by the State Government and effect being given to those orders. 100. The acceptance of Mr. Surianarayana Iyer's contention will lead to some incongruities, as I will presently show. If a person, at the fag end of his career, commits some misconduct & that has to be enquired into & by the time the enquiry proceedings are over, if the officer has already retired from service, it will mean that an order of punishment by way of dismissal, or removal from service or compulsorily retiring him from service cannot be passed. I am giving only one example to show what the result will be if the contention of Mr. K. V. Surianarayana Iyer is accepted. Similarly, as the law stands at present, if an officer comes out successfully in the disciplinary proceedings that are taken against him, he has to be restored to the old position that he occupied as on the date when he was placed under suspension pending enquiry. Now, if Mr. K. V. Surianarayana Iyer is accepted. Similarly, as the law stands at present, if an officer comes out successfully in the disciplinary proceedings that are taken against him, he has to be restored to the old position that he occupied as on the date when he was placed under suspension pending enquiry. Now, if Mr. Surianarayana Iyer's contention is accepted, the result will be this: If A. is placed under suspension pending enquiry on 1st January 1960 and if he is acquitted in the disciplinary proceedings by the enquiry officer on 1st January 1962 and if the Government accept that acquittal, the position will be that final orders of Government will take effect only from 1st January 1962 and notwithstanding the fact that the officer in this case has succeeded, he will not have any benefit anterior to that date. 101. For all these reasons I am not inclined to accept the contention of Mr. Surianarayana Iyer that the order Ext. P-6 compulsorily retiring the petitioner from service from the date when he was placed under suspension is in any manner illegal or invalid. Mo doubt, as I have mentioned earlier, there has been some delay in the matter of passing final orders. The Government would have certainly done well to have expedited the matters at every stage, 102. All the contentions of learned counsel Mr. Surianarayana Iyer fail and the writ petition is dismissed. The parties will bear their own costs. Dismissed.