L. Samjai Singh v. Deputy Commissioner of Manipur — 1967 DIGILAW 32 (GAU)

ORDER : This is a writ petition filed under Articles 226, 227 and 311(1) of the Constitution of India for issue of a writ of certiorari or any other appropriate writ quashing the orders of the first respondent (the Deputy Commissioner of Manipur) dated 20-11-1964 under which he reviewed his prior order dated 13-11-64 and directed that the period of suspension and removal of the petitioner should be treated as on duty for the purpose of pension only and under which he further transferred the petitioner to the Manipur State Jail to work as Warder. 2. The petitioner was appointed as Chowkidar on 12-6-1958 in Manipur State Trading Office in Imphal by the second respondent viz., the State Trading Officer, Manipur, in the time scale of Rs. 25-1-40. He was confirmed as Chowkidar with effect from 23-3-1961. But, Sri Ch. Somorendra Singh, the then State Trading Officer in Manipur State Trading Office, Imphal, suspended the petitioner with effect from 30-1-1964 for a proposed Departmental proceeding under the Central Civil Services (Classification, Control and Appeal) Rules, 1957, (hereinafter called as the Rules) for absenting himself from duty from 30-1-1964 to 13-2-1964 by an order dated 12-2-1964. Charges were framed against the petitioner. He filed his written statement of defence. Shri S.L. Singson, E. A. C. was appointed as the Enquiring Officer. He held an enquiry and submitted a report to the second respondent holding that the charges were proved. Thereupon, the second respondent issued notice to the petitioner on 10-7-1964 to show cause why he should not be dismissed from service. The petitioner filed his reply on 28-7-1964. Shri Ch. Somorendra Singh, however, passed an order as per Ext. A/2 dated 1-8-1964 removing the petitioner from service. 3. The petitioner preferred an appeal to the first respondent, the Deputy Commissioner, Manipur. The latter allowed the appeal as can be seen from Ext. A/2 dated 13-11-1964. He ordered that the petitioner should be re-instated, but that his increments for three years should be withheld with cumulative effect. He further directed that the period of suspension and removal of the petitioner from service should be treated as on duty and counted towards pension. The petitioner, thereupon, filed an application as per Ext. A/3 on 16-11-1964 before the second respondent to permit him to join office. He further directed that the period of suspension and removal of the petitioner from service should be treated as on duty and counted towards pension. The petitioner, thereupon, filed an application as per Ext. A/3 on 16-11-1964 before the second respondent to permit him to join office. But, the second respondent passed an order on the petition that the petitioner would be transferred to some other office. Again, on 18-11-1964 the petitioner filed another application before the second respondent as per Ext. A/4 requesting him to pass an order for payment of arrears of pay, which the petitioner was entitled to draw in view of the order passed by the first respondent as per Ext. A/2. But, the second respondent wrote a note on the petition that the order as per Ext. A/2 was amended, that a fresh order was issued and that the petitioner was not entitled to any arrears of pay. 4. The first respondent reviewed his previous order covered by Ext. A/2 by issuing a fresh order as per Ext. A/5 dated 20-11-1964 that the period of suspension and removal would b» treated as on duty for the purpose of pension "only". Thereby, the petitioner was not permitted to draw the arrears of his salary during the period of suspension and removal of the petitioner from service. Also, the petitioner was transferred by an order of the first respondent as per Ext. A/6 dated 20-11-1964 to work as Warder in the Manipur State Central Jail on the same scale of pay which the petitioner was enjoying as Chowkidar, though the scale of pay of the warder was Rs. 35-1-51-2-55 in the relevant time, which was higher than the scale of pay of the Chowkidar in Manipur State Trading Office. 5. The petitioner is now working as Warder in the Manipur State Central Jail according to the order covered by Ext. A/6 and filed the present writ petition challenging the power of the first respondent to review as per Ext. A/5 his earlier order covered by Ext A/2 dated 12-11-1964 and transferring him to the Manipur State Central Jail as Chowkidar as evidenced by Ext. A/6. 6. The first point, which was argued and which arises for determination, is whether the first respondent was entitled to review his earlier order covered by Ext. A/5 his earlier order covered by Ext A/2 dated 12-11-1964 and transferring him to the Manipur State Central Jail as Chowkidar as evidenced by Ext. A/6. 6. The first point, which was argued and which arises for determination, is whether the first respondent was entitled to review his earlier order covered by Ext. A/2 dated 12-11-1964 to the detriment of the petitioner depriving him of the arrears of pay for his period of suspension and removal from service. The contention of the learned counsel for the petitioner is that when the petitioner filed application as per Ext A/4 dated 18-11-64 before the second respondent requesting him to grant him arrears of pay in pursuance of the order of the first respondent as per Exhibit A/2, the second respondent made a note on the application even on 18-11-1964 itself that the previous order as per Ext. A/2 was reviewed and that the petitioner was not entitled to the arrears of pay, but that the actual order as per Ext. A/5 was passed on 20-11-1964, and that, therefore, Sri Ch. Somorendra Singh, the then State Trading Officer was actuated by mala fides. This contention is not correct. For, the original records show that the first respondent reviewed the order on 18-11-1964 itself, though it was communicated to the petitioner as per Ext. A/5 on 20-11-1964. 7. The contention of the learned Government Advocate in this behalf is two-fold. His first contention is that the first respondent committed a clerical mistake in omitting to add the word only in Cl. (3) of the order covered by Ext. A/2 and, that, therefore, he corrected the mistake by adding the word only to make the order appear that the period of suspension and removal of the petitioner from service would be treated as on duty for the purpose of pension only. This contention is a belated one. For, no such plea was taken by the respondents in their counter. In para. 6 of the counter which deals with this aspect of the case no such plea was raised by the respondents. So, this contention of the learned counsel for the respondents cannot be upheld. The second contention of the learned counsel for the respondents is that the first respondent was entitled to review his order under R. 33 of the Rules. Part VII of the Rules relates to the proceedings in review. So, this contention of the learned counsel for the respondents cannot be upheld. The second contention of the learned counsel for the respondents is that the first respondent was entitled to review his order under R. 33 of the Rules. Part VII of the Rules relates to the proceedings in review. Rule 32 empowers the President to review any order which is made or which is appealable under the Rules or the Rules repealed by R. 34 on his own motion or otherwise after calling for the records of the case. He may pass any order as mentioned in R. 32. But, he cannot pass any order imposing or enhancing a penalty unless the person concerned has been given opportunity of making any report which he may wish to make against such enhanced penalty. Rule 33 is relevant for the purpose of the present petition and it is extracted below. "33. Review of orders in disciplinary cases. The authority to which an appeal against an order imposing any of the penalties specified in Rule 13, lies may of its own motion or otherwise, call for the records of the case in a disciplinary proceeding, review any order passed in such a case and, after consultation with the Commission where such consultation is necessary, pass such orders as it deems fit, as if the Government servant had preferred an appeal against such order : Provided that no action under this rule shall be initiated more than six months after the date of the order to be reviewed." Rule 33 thus applies under three conditions. Firstly, it applies only to disciplinary cases. Secondly it is confined to cases where there is a right of appeal and where it has not been availed of. Thirdly, it is limited to matters concluded within six months Vide page 105 of A Case study of Disciplinary Proceedings Against Government Servants (prepared under the auspices of the Indian Law Institute, New Delhi) and also page 307 of the Disciplinary Action Against Government Servants and its Remedies by K.D. Srivastava and N.K. Srivastava, 1965 Edition. As the first respondent was the appellate, authority in this case, he could review the order. But, as suggested by the language of Rule 33 itself, he could review the order of the second respondent, if no appeal was filed before him. As the first respondent was the appellate, authority in this case, he could review the order. But, as suggested by the language of Rule 33 itself, he could review the order of the second respondent, if no appeal was filed before him. Condition No. 2 mentioned above does not apply, as an appeal was filed by the petitioner against the order of the 2nd respondent. It is, therefore, doubtful whether he could review under Rule 33 his own order passed in the appeal. But, as the enquiry was a quasi-Judicial one, it can be said that he could review the order under section 152, C.P.C. No. doubt, the first respondent was entitled to decide whether the petitioner should get arrears of pay for the period of his suspension etc. or not as can be seen from F.R. 54 and Secretary of State v. Surendra Nath Goswami, AIR 1938 Cal 759 and Rupa Ram v. Divisional Supdt. N.W. Rly., Lahore, AIR 1954 Punj 298. But, the first respondent passed the order as per Ext. A/2 impliedly allowing the petitioner to draw arrears of salary for the period of suspension. Though he had the right to review his own order disallowing him of the same, still he should have done so after giving notice to the petitioner. It is, no doubt, true that Rule 33 does not mention specifically that notice should be given to delinquent. But, Rule 32, which contains analogous provisions of review, mentions that the delinquent should be heard before any penalty is imposed on him. The arrears of pay are not much still, on principle the petitioner should not have been deprived of the same by the first respondent by reviewing his previous order without notice to the petitioner. As such, the order of the first respondent covered by Ext A/5 is liable to be set aside and his previous order as per Ext A/2 would stand. 8. The other point which was argued and which arises for determination is whether the order of the first respondent transferring the petitioner as Warder in the Central Jail. Manipur, as per Ext. A/6 dated 20-11-1964 is liable to be set aside. Ext. A/6 reads that the petitioner was transferred to Manipur State Jail in the interest of public service and appointed as Warder with the same scale of pay which he was enjoying as Chowkidar. Manipur, as per Ext. A/6 dated 20-11-1964 is liable to be set aside. Ext. A/6 reads that the petitioner was transferred to Manipur State Jail in the interest of public service and appointed as Warder with the same scale of pay which he was enjoying as Chowkidar. So, the transfer was made by the first respondent administratively in the interest of public service. It does not show that the transfer was made by way of any punishment. The Court is not concerned with the motive of the first respondent, as the transfer was made on administrative grounds Vide also the passage at page 163 of the Law of Wrongful Dismissal by Suranjan Chakravarti. 1959 Edition and Sangam Lal Dube v. Director of Education, U.P. Allahabad. AIR 1957 All 70 and Samsul Hussain v. Union of India, AIR 1957 Assam 143. The contention of the learned counsel for the petitioner is that the post of the Warder in the Central Jail carries the scale of Rs. 35-1-51-2-55 but that the petitioner was not given that scale and that he was posted on the same scale of Rs. 25-1-40 which the petitioner was enjoying while working as Chowkidar. The petitioner was, no doubt, not deprived of his original emoluments. Instead of working as Chowkidar in the State Trading Office, Manipur, he was asked to work as Warder in the Central Jail. The Government is entitled to make such changes. The High Court will not interfere with a transfer made on administrative grounds so long as the provisions of Article 311 of the Constitution of India are not attracted. But, in this case as the petitioner was posted to a higher grade, he is deprived of that grade, though he is setting the old scale as Chowkidar. It is not just that he should be deprived of the scale of the post to which he was appointed without any proper grounds. So, he must be considered to have been penalized and the provisions of Art. 311 of the Constitution of India are attracted. His transfer amounts to punishment without any enquiry. It is open to the Government to transfer him to some other post which carries the same scale of pay. As such, the order as per A/6 is also liable to be set aside. 9. In the result, the writ petition is allowed and the orders in question are quashed. His transfer amounts to punishment without any enquiry. It is open to the Government to transfer him to some other post which carries the same scale of pay. As such, the order as per A/6 is also liable to be set aside. 9. In the result, the writ petition is allowed and the orders in question are quashed. Under the circumstances of the case I direct the parties to bear their own costs. Petition allowed.