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1996 DIGILAW 62 (GAU)

Mochi Har Prasad v. Union of India

1996-04-08

A.K.PATNAIK, V.K.KHANNA

body1996
V.K. Khanna, C.J.— This appeal has been filed against the judgment dated 3.1.96 of the learned Single Judge given in Civil Rule No.5575 of 1995 by which the learned Single Judge alter taking into account the decision given in the earlier Civil Rule No.537 of 1994 dated 9.3.95 between the same parties has ordered that the suspension allowance which is due stall be paid within a period of one month from the date of receipt of the order passed by the learned Single Judge. A rider has also been placed that the enquiry will not proceed without payment of subsistence allowance. 2. We have heard Mr. RD Lal, learned counsel appearing for the petitioner/appellant and Mr. KN Choudhury, learned Senior Central Government Standing Counsel appearing on behalf of the respondents. 3. Mr. RD Lal, learned counsel appearing on behalf of the appellant, has urged that after setting aside of the dismissal order by the learned Single Judge hi title earlier Civil Rule, the petitioner/appellant would be deemed to have been reinstated in service; and the stand taken by the respondents that the appellant would be deemed to be under suspension is not in accordance with the law. Mr. Lal has relied on a decision of Calcutta High Court reported in AIR 1956 Calcutta 447 (Probodh Chandra Ghose vs. Executive Engineer, Canals Division & others) for the aforesaid proposition. 4. Mr. KN Choudhury, learned counsel appearing for the respondents has, however relied on the provisions of Rule 10 (4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which runs as follows: "10. Suspension ... 4. Mr. KN Choudhury, learned counsel appearing for the respondents has, however relied on the provisions of Rule 10 (4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which runs as follows: "10. Suspension ... (4) Whre a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared, or rendered void in consequence of or by decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the, allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Govt servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders: Provided that no such further inquiry snail be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case......" On the basis of the provisions of Rule 10 (4) of the Rules, 1965, it has been argued that if a Court of law has set aside the termination order on technical ground, then the provisions of the aforesaid sub-rule (4) of Rule 10 are attracted and the delinquent officer would be deemed to be under suspension from the date of dismissal. For the aforesaid proposition, Mr. Choudhury has placed reliance on a decision of Apex Court reported in (1992) 4 SCC 711 (Nelson Motis vs.Union of India & others). 5. It has not been disputed before us by the learned counsel appearing for the appellant that in the earlier Civil Rule, the dismissal order has been set aside on technical grounds and Court had itself expressed an opinion that it would be open for the disciplinary authority to proceed with the inquiry in accordance with the Rules. If that be so, the law laid down in the case of Nelson Motis (supra) is clearly applicable inasmuch as the validity of Rule 10 (4) of the Rules was challenged in the aforesaid case. If that be so, the law laid down in the case of Nelson Motis (supra) is clearly applicable inasmuch as the validity of Rule 10 (4) of the Rules was challenged in the aforesaid case. The provisions of the aforesaid Rule have been upheld on the ground that it has a distinctive feature and the aforesaid feature is that the aforesaid Rule is only applicable when one condition exhausts, i.e., dismissal order has been set aside by a Court of law on technical ground and in that eventuality the delinquent officer will be deemed to be under suspension from the date of dismissal, if an inquiry has been ordered afresh. 6. It has riot been disputed that inquiry has been ordered afresh and is still going on. If that be so, we are of the opinion that the provisions of Rule 10 (4) of the Rules will be applicable as has been held by the Apex Court In the case of Nelson Motis (supra). 7. Before parting, however, we may notice the arguments raised by Mr. RD Lal, learned counsel appearing for the appellant, that the appellant has initially been placed under suspension oh 27th July, 1990, the judgment by the learned Single Judge in the earlier Civil Rule has been pronounced on 9.3.95 and the judgment by the learned Single Judge in the Civil Rule put of which the present writ appeal arises has been pronounced on 3.1.96. Mr. KN Choudhury, learned Senior Central Government Standing Counsel has frankly conceded that the inquiry shall be completed within two months from today. It is however being made clear that the petitioner/appellant will be provided with legal aid as has been observed by the learned Single Judge in the earlier Civil Rule No.537 of 1994. We are constrained to observe that the proceedings are pending for the last six years and they must now come to an end at an early date. However, in view of the specific statement made by Mr. KN Choudhury that the inquiry will be completed within a period of two months, we are of the opinion that no specific directions are required to be given. However, in view of the specific statement made by Mr. KN Choudhury that the inquiry will be completed within a period of two months, we are of the opinion that no specific directions are required to be given. We however make it clear that the petitioner/appellant will co-operate in the inquiry and, of course, in case the petitioner/appellant does not co-operate With the inquiry, the law is clear that the disciplinary authority can proceed exparte in accordance with the Rules. 8. Mr. RD Lal, in the end, has brought it to our notice that the subsistence allowance has not been paid fully. We are of the opinion that there is a Mandamus issued by the learned Single Judge and the respondents are bound to comply with the direction. 9. Subject to the aforesaid observations, the judgment of the learned Single Judge stands modified to the extent indicated above, The appeal is finally disposed of. However, looking to the entire facts and circumstances of the case, the parties shall bear their own costs.