Baldev Raj Bhatia v. State of U. P — 1985 DIGILAW 337 (ALL)

JUDGMENT K.C. Agrawal, J. - This petition under Article 226 of the Constitution has been filed by the petitioner Baldeo Raj Bhatia seeking, amongst others, the following relief : (i) To issue a writ of certiorari, order or direction in the nature of certiorari calling for the record of the case and quashing the order dated 15th July, 1976. (ii) To issue a writ of mandamus, order or direction in the nature of mandamus directing the respondents to pay the salary and allowances as is admissible under the Rules 54-A(3) to the petitioner at once. 2. The petitioner was employed as a Junior Division Clerk (Civilian) in the IVth Battalion, N.C.C. Kanpur. He was dismissed from service by an order of the Officer Commanding IVth Battalion, U.P. NCC, on certain charges of misconduct, on 9.1.1961. His appeal was dismissed by the Group Commander of the National Cadet Corps, Group Headquarters, Kanpur. The petitioner filed Writ Petition No.2368 of 1972 in this Court. The writ petition was allowed on 18.11.1975. The High Court found that as the petitioner had not been given any opportunity to defend himself, his dismissal was void. The relevant observations were: "No show cause notice as contemplated by Rule 55 and Article 311(2) was given to the petitioner. It is well settled that if an order of dismissal is passed in violation of Article 311(2) of the Constitution the order would be void. In the instant case, the petition was denied the constitutional protection and the order of dismissal was passed without affording him opportunity as contemplated by Article 311(2) of the Constitution, hence the order of dismissal is void." 3. Upon the writ petition being allowed, the petitioner applied for reinstatement. He was reinstated by the order dated 11.5.1976 with effect from 1.3.1976. The petitioner made a representation for payment of arrears of salary with effect from the date of his dismissal. By the letter dated 15th July, 1976 (Annexure 3') the petitioner was allowed payment of full salary and allowances for a period of three years immediately preceding the date of his reinstatement. The petitioner preferred a representation before the Officer Commanding, IVth Battalion, U.P., NCC for the payment of salary for the full period during which he remained dismissed. By the letter dated 15th July, 1976 (Annexure 3') the petitioner was allowed payment of full salary and allowances for a period of three years immediately preceding the date of his reinstatement. The petitioner preferred a representation before the Officer Commanding, IVth Battalion, U.P., NCC for the payment of salary for the full period during which he remained dismissed. The petitioner claimed that since his dismissal order had been found to be void by the High Court, he was entitled to be given the full salary under Rule 54-A(3) of the Uttar Pradesh Fundamental Rules. The representation was rejected by an order dated 15.2.1977. The authority held that as the dismissal order of the petitioner had been set aside by the High Court on the ground of non-compliance of article 311(2) of the Constitution and the punishment was not set aside on merits, the petitioner was not entitled under the Proviso to Fundamental Rule 54-A(2) to get his full salary. The view was that Rule 54-A(3) could apply if the dismissal, removal or compulsory retirement of the petitioner would have been set aside by the High Court on merits. Upon the representation being rejected, the petitioner approached this Court by means of the present writ petition. 4. The first contention was that as the order of the High Court allowing the writ petition and setting aside the dismissal order was one on merits, under Fundamental Rule 54-A(3) the petitioner was entitled to the salary for the full period beginning from the date of suspension till reinstatement. The submission is not correct. We have quoted the order of the High Court showing that the petitioner's dismissal had been found to be void or illegal by the High Court on the ground of non-compliance of Article 311(2) of the Constitution and Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. On certain charges of misconduct the petitioner had been dismissed: In the writ petition, the High Court did not give any finding on the, merits of those charges. It confined itself to the ground of non-compliance of Article 311(2) of the Constitution. If the order would have been on merits, resort to Fundamental Rule 54-A(3) could be taken. Since the High Court did not quash the order of dismissal on merits, it was open to the authorities to direct a fresh enquiry against the petitioner. It confined itself to the ground of non-compliance of Article 311(2) of the Constitution. If the order would have been on merits, resort to Fundamental Rule 54-A(3) could be taken. Since the High Court did not quash the order of dismissal on merits, it was open to the authorities to direct a fresh enquiry against the petitioner. The petitioner in the earlier proceedings was not exonerated by the High Court in respect of the alleged charge of misconduct against him. Consequents, the first argument of the petitioner's learned counsel about the applicability of Fundamental Rule 54-A(3) has no merits. 5. The second submission of the learned counsel for the petitioner was that the Proviso to Fundamental Rule 54-A(2) is ultra vires the Constitution and, as such, the authorities were bound to order for payment of salary of the entire period even though the dismissal order was set aside on the ground of non compliance of Article 311(2) of the Constitution. We do not find substance in this submission. 6. Upon an order of dismissal/removal or compulsory retirement of a Government servant on the ground of non-compliance of article 311(2), and where he is not exonerated on merits, and when no further enquiry is proposed to be held, the. Government servant is entitled to be paid such pay and allowances to which he would have been entitled and had he not been dismissed,removed or compulsorily retired or suspended. For applying this provision, two things are necessary : (i) that he has not been exonerated on merits, and (ii) that no further enquiry is proposed to be held. It is upon the proof of these two facts that Fundamental Rule 54-A(2) applies This Rule has, however, a Proviso laying down that any payment under Sub-rule (2) would be restricted to a period of three years immediately preceding the date on which the judgment of the Court was passed, reading the main Sub-rule (2) and the Proviso, it would be found that no discretion has been left to the authorities to divide the persons whose dismissals have been found to be void on the ground of non-compliance of Article 311(2) of the Constitution. It is not possible under this Sub-rule for the authorities to discriminate in between the Government servants and to order for payment of salary for the full period of dismissal or removal in some cases 'and not to do so while in others by restricting the payment of salary to three years. In every case where a Government servant has not been exonerated and the authority does not want to hold further enquiry the payment of salary has to be made in accordance with Sub-rule (2), which is subject to the Proviso. 7. "Discretion" means a power or right conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others, In the cases governed by Sub-rule(2) there is no discretion left and every body has to be treated alike for payment of salary. The argument of the petitioner therefore, that under the proviso the officials may act in some cases in a particular fashion while in other cases falling in the same category differently. As already observed, the Proviso does not confer discretionary power. Discretionary power is one which is not imperative, or if imperative, the time, manner or extent of execution of which is left to the public functionary. 8. Under Article 14 of the Constitution, the principle underlying the guarantee is that the same rules of law should be applicable to all persons similarly placed alike. It only means that all persons similarly circumscribed shall be treated alike. Equal legislations will have to be applied to all in the same situation, and there should be no discrimination between one person and another, if, as regards the subject matter of the legislation, their position is substantially the same. 9. For what we have said above, we are unable to hold that the Proviso to Sub-rule 54-A is liable to be struck down on the ground of Article 14 of the Constitution. This could be possible if the authorities would have had the discretion of paying full salary in one case and salary restricted to a period of- three years in the same type of case of a Government employee falling in the same category. 10. This could be possible if the authorities would have had the discretion of paying full salary in one case and salary restricted to a period of- three years in the same type of case of a Government employee falling in the same category. 10. In the instant case, while acting under Fundamental Rule 54-A(2), the authorities ordered for payment of salary to the petitioner for a period of three years. The authorities did not have the power to direct for payment of salary for the period in excess of three years. Consequently, the impugned order, could not be said to be illegal. The authorities had to act in accordance with the provisions of the Rules which conferred power of making an order for payment of salary. 11. For the relief of salary for the period of other than what was ordered to be paid to the petitioner, his remedy had since not been curtailed by rule, lay else where. In Maimoona Khatoon v. State of U.P. 1980(3) SLR 455 the Supreme Court has held that cause of action for filing a suit for payment of salary to a Government servant who had been dismissed accrues on the date of reinstatement. In this case, the Supreme Court held that until a Government servant is reinstated, he cannot claim any arrears of salary or pay. The right 'or" issue for arrears of salary would accrue only after the employee was reinstated. 12. In the instant case, we are, however, not called upon to decide this controversy. Before us, the restricted question was about the applicability of Fundamental Rule 54-A(3) and interpretation of rule 54-A(2). We have found above that Fundamental Rule 54-A(3) did not apply and while acting under the Proviso to Rule 54-A(2), the authorities did not act illegally. The petitioner also has confined his prayer to the quashing of the order for payment of salary made under Fundamental Rule 54-A(2). 13. In the result, the writ petition fails and is dismissed. But, in the circumstances, we make no order as to costs.