STATE OF GUJARAT v. VRAJLAL HANSRAJ SANGHRAJKA — 1971 DIGILAW 57 (GUJ)

A. A. DAVE, J. ( 1 ) THE facts giving rise to this appeal are simple. The present respondent was serving as a store keeper at Veraval under the State of Gujarat and was drawing the salary of Rs. 108-50 as dearness allowance per month in October 1957. He was suspended from duty from 15th October 1957 as a result of certain allegations made against him. A charge sheet was submitted against him by the appellant in the Court of the learned Special Judge Junagadh for offences punishable under secs. 467 471 477 of the Indian Penal Code and sec. 5 (1) (c) and (d) read with sec. 5 (2) of the Prevention of Corruption Act. He was however given benefit of doubt and acquitted in all the three cases. Some departmental inquiry was also held against him on 19th February 1958 but no punishment was awarded to him thereunder. Thereafter he was reinstated on duty from 8th May 1959 by the order of the port officer. The period of suspension from 15th October 1957 to 8th May 1959 was treated as if he was on leave. However that period was counted as on duty only for the purpose of pension and not for other purposes. According to the plaintiff the said order dated 4th March 1960 regularising the period of suspension was arbitrary illegal unauthorised and was passed without giving him an opportunity to show cause against the same. According to him he was entitled to receive full salary for the whole period. He therefore filed a suit against the State of Gujarat and prayed for a decree of Rs. 2456. 61 paise being the amount of salary and other emoluments which he would have been entitled to receive during the period of suspension. The State by its written statement Ex. 14 admitted the facts stated in the plaint regarding suspension of the plaintiff and his subsequent reinstatement as a result of acquittal in those cases. However it contended that the impugned order regularising the period of suspension was lawfully passed. It stated that it was not penal and was not contrary to the provisions of the Bombay Civil Services Rules that the said decision of the executive officer was not justiciable and the plaintiffs claim was barred by limitation. The learned trial Judge raised several issues at Ex. 16. It stated that it was not penal and was not contrary to the provisions of the Bombay Civil Services Rules that the said decision of the executive officer was not justiciable and the plaintiffs claim was barred by limitation. The learned trial Judge raised several issues at Ex. 16. He held that the plaintiff had failed to prove that he was illegally suspended from service. In his opinion he was not entitled to receive full salary including dearness allowance for the suspension period. He also held that it was not a justiciable case and dismissed the suit. Against the said judgment and decree passed by the learned Civil Judge Senior Division Junagadh an appeal was preferred in the District Court which was heard by the learned Assistant Judge who held that the impugned order was justiciable and was penal in nature and was passed in breach of principles of natural justice. He also held that the claim was not time barred. He therefore allowed the appeal and decreed the plaintiffs suit with costs. Against the said judgment and decree the State has preferred the present appeal to this Court. 2 Mr. G. T. Nanavaty who appeared on behalf of the State submitted that the only material question which arose in this appeal is whether it was incumbent on the State to give an opportunity to the plaintiff of bearing heard before necessary orders were passed under rule 152 of the Bombay Civil Services Rules. He urged that rule 152 did not require the presence of the person concerned and it was quite competent to the authority to pass necessary orders. He submitted that it cannot be said that the order was not passed properly and that such an order passed without hearing the person concerned cannot be said to be without jurisdiction. He urged that if the plaintiff had no inherent right of being heard it would not be proper to say that the principles of natural justice were violated: ( 2 ) IN order to appreciate the submissions made by Mr. Nanavaty it will be worthwhile to refer to rule 152 of the Bombay Civil Services Rules. He urged that if the plaintiff had no inherent right of being heard it would not be proper to say that the principles of natural justice were violated: ( 2 ) IN order to appreciate the submissions made by Mr. Nanavaty it will be worthwhile to refer to rule 152 of the Bombay Civil Services Rules. It says (1) When a Government servant who has been dismissed removed or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order:- (A) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty and. (B) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed removed or suspended as the case may be. (3) In other cases the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe;provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such Competent authority specifically directs that it shall be so treated for any specified purpose. THE instant case will be governed by clause (3) of this rule. Apparently the rule does not require the presence of the employee concerned before passing any necessary orders. However if the rule is scrutinised closely it will be clear that in the interest of justice the person concerned must be heard before any order is passed under rule 152. While passing any order the competent authority will be required to hold as to whether his case will fall under clauses (1) (2) or (3) of the said rule. However if the rule is scrutinised closely it will be clear that in the interest of justice the person concerned must be heard before any order is passed under rule 152. While passing any order the competent authority will be required to hold as to whether his case will fall under clauses (1) (2) or (3) of the said rule. Sometimes it may happen that even though the criminal Court on merits may have acquitted the accused and yet the final order may disclose as if benefit of doubt was given to him and he was acquitted. Therefore in order to decide whether the person concerned was acquitted on merits or whether he was given benefit of doubt it is essential that the person concerned should be heard by the competent authority. If without giving him an opportunity any order is passed behind his back there was every likelihood of injustice being done to him. Even for the purpose of calculation of the actual suspension period it would be necessary to hear the person concerned. Naturally he would be vitally interested in any order which may be passed against him. If he is vitally interested in an order it goes without saying that any order which may be passed would be of a quasi judicial nature. In such a case if he is not given an opportunity of being heard and if the order is passed behind his back even though the order may not be said to be completely without jurisdiction it can well be said that the principles of natural justice were violated. I am supported in my view by the case of Vasant Raghunath Gokhle v. The State of Maharashtra and another A. I. R. 1963 Bombay 137 wherein the division bench of the Bombay High Court observed thatrule 152 is one of the rules framed or continued under the proviso to art. 309 of the Constitution of India and is therefore a statutory rule. Rule 152 finds place in Chapter VIII of the Bombay Civil Services Rules. Chapter VIII is headed as dismissal removal and suspension. Apparently the Chapter deals with determination of the pay and allowances payable to Government servants who are either dismissed or removed from service or who are suspended. Rule 152 finds place in Chapter VIII of the Bombay Civil Services Rules. Chapter VIII is headed as dismissal removal and suspension. Apparently the Chapter deals with determination of the pay and allowances payable to Government servants who are either dismissed or removed from service or who are suspended. Under rule 152 what is required is that the competent authority must act judicially in exercise of its power under the rule This itself postulates that before any action adverse to the interests of Government servant concerned is taken he must be given a reasonable and adequate opportunity to show cause against the action to be taken against him. Under rule 152 the decision whether the Government concerned is or is not fully exonerated or whether the suspension order is justified or unjustified in whole or part is a matter of serious consequences to the Government servant concerned. The competent authority is required to apply its mind to the facts of each case and all material on record and to come to a definite conclusion as to whether or not it would come to an opinion that the Government servant is fully exonerated or whether the period of his suspension was not wholly justified. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the absence of such opportunity being given the competent authority has not exercised its powers under Rule 152 of the Bombay Civil Services Rules in the manner in which it is required to exercise. WITH respect I am in complete agreement with the observations made by the Bombay High Court. In the instant case in the departmental inquiry it was not deemed necessary to inflict any penalty on the plaintiff. It was all the more necessary for the competent officer therefore to hear the plaintiff in order to decide whether he was completely exonerated or not and in order to calculate the period for which he was under suspension. Admittedly the impugned order was passed without hearing the present respondent. It was all the more necessary for the competent officer therefore to hear the plaintiff in order to decide whether he was completely exonerated or not and in order to calculate the period for which he was under suspension. Admittedly the impugned order was passed without hearing the present respondent. The learned Assistant Judge therefore was right in holding that the said order was passed in contravention of the principles of natural justice. Such an order passed in contravention of the principles of natural justice is justiciable and such an order would not be barred by limitation. 4. . . . . . . . . . . . . . . . . . . . . . . . . ( 3 ) THE result of this declaration is that there is no order of the competent authority under rule 152 of the said Rules. In that case it will be necessary for the competent authority to pass appropriate orders under the said rule. After hearing the plaintiff it will be open to the competent authority to pass appropriate orders as laid down under rule 152 of the Rules. 1 therefore pass the following order : ( 4 ) THE appeal is partly allowed. The decree of the learned Assistant Judge for Rs. 2456. 61 paise is hereby set aside. However his finding that the order passed by the competent authority under rule 152 of the Bombay Civil Services Rules was illegal and void being in contravention of the principles of natural justice is upheld. The Port Officer Veraval is directed to pass appropriate orders under rule 152 of the Bombay Civil Services Rules after hearing the plaintiff. In view of the facts of this case parties to bear their own costs of this appeal. .