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S.V.G. Iyengar Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 235 of 1959
Judge
Reported inAIR1961Kant37; AIR1961Mys37; ILR1959KAR829; (1960)IILLJ574Kant
ActsStates Reorganization Act; Constitution of India (Seventh Amendment) Act, 1956; General Clauses Act, 1897 - Sections 14 and 21; Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 - Rule 10(1) and 10(4); Mysore Civil Services Rules, 1958 - Rule 98; Hyderabad Civil Services (Classification, Control and Appeal) Rules, 1952 - Rule 17; Hyderabad Civil Services (Classification, Control and Appeal) (Amendment) Rules, 1955 - Rule 16(1); Constitution of India - Articles 309, 311, 311(2), 367, 367(1) and 372
AppellantS.V.G. Iyengar
RespondentState of Mysore
Excerpt:
- mines and minerals (regulation and development) act (67 of 1957) section 9-a & mineral concession rules, 1960, rules 31 & 27: [ram mohan reddy, j] power to tax - levy of lease rent and supervision charges on leased forest land release of forest land for mining purposes in favour of petitioners subject to payment of lease rent and supervision charges - impost of lease rent and supervision charges not established to be by way of tax under article 265 in exercise of executive functions under article 162 of constitution. it is illegal being without authority of law. the preamble in the orders of the state government, impugned, discloses reference to particulars regarding recommendations made by the state to central government for release of forest land for mining purposes in favour of.....ordera.r. somnath ayyar, j.1. the petitioner is a deputy chief engineer in the service of the state of mysore. on 25 march 1959, the government of mysore placed him under suspension pending enquiry into four charges framed against him. in this writ petition, the petitioner asks that that order should be quashed. 2. the impugned order was made in the following circumstances. 3. the petitioner entered the service of the erstwhile state of hyderabad in the year 1926, as a probationary assistant engineer. in june 1949 by which time he had become an executive engineer, he was in charge of a project known as the khasapur project in the bandsura project division of that state. in june 1951 he was called upon to explain some irregularities stated have been committed by him in the performance of.....
Judgment:
ORDER

A.R. Somnath Ayyar, J.

1. The petitioner is a Deputy Chief Engineer in the service of the State of Mysore. On 25 March 1959, the Government of Mysore placed him under suspension pending enquiry into four charges framed against him. In this writ petition, the petitioner asks that that order should be quashed.

2. The impugned order was made in the following circumstances.

3. The petitioner entered the service of the erstwhile State of Hyderabad in the year 1926, as a Probationary Assistant Engineer. In June 1949 by which time he had become an Executive Engineer, he was in charge of a project known as the Khasapur Project in the Bandsura Project Division of that State. In June 1951 he was called upon to explain some irregularities stated have been committed by him in the performance of his official duties. On 16 March 1955, a notice was issued to him to show cause why he should not be proceeded against in respect of four charges which were enumerated in the enclosure to that notice. After an enquiry was made into those charges, it was decided by the Government of the erstwhile State of Hyderabad that three of the four charges had not been established and that action should be taken in respect of only the fourth charge. But no final orders were made by that Government before that State ceased to exist by reason of the Reorganization of States, which took place on 1 November 1956.

4. Under the provisions of the States Reorganization Act, the petitioner was provisionally allotted to the new State of Mysore. But the petitioner, however, continued to work in, the new State of Andhra Pradesh in connexion with a project known as the Nagarjuna Sagar Project. It is stated that this was done with the concurrence of the new State of Mysore. It was only in February 1958 that the petitioner entered upon his duties in the new State of Mysore as Deputy Chief Engineer. Thereafter, the new State of Mysore appears to have continued the proceedings started by the erstwhile State of Hyderabad in regard to the charges of misconduct framed against the petitioner. Eventually on 14 October 1958, an order was made by the Government of Mysore. In the course of that order, after alluding to the fact that out of the four charges framed against the petitioner, the Government of Hyderabad had exonerated him in regard to charges 1 and 2 and given the petitioner the benefit of doubt in regard to the third charge, the Government of the new State of Mysore proceeded to hold that the fourth charge had been established. The punishment imposed by the Government of Mysore on the petitioner was that the petitioner should be compulsorily retired. He was also called upon to make good to the Government the sum of Rs. 4,576. In W.P. No. 424 of 1958, that order was set aside by this Court on the basis of a memo filed by the learned Advocate-General which reads as follows :-

'Memo

As a fresh show-cause notice as contemplated by Art. 311(2) of the Constitution was not given to the petitioner after the Chief Engineer of the then State of Hyderabad held a fresh enquiry, the respondent does not oppose the impugned order of compulsory retirement of the petitioner being set aside, without prejudice to the right of the petitioner to put forward his contentions if and when the State should take further or fresh proceedings according to law. The Hon'ble Court may be pleased to allow the writ petition with no order as to costs.'

5. This was done on 9 December 1958.

6. About a month thereafter, by an order made on 16 January 1959, another order was made by the Government. That order runs :

'Read :

Government Order No. P.W.D. 16 DAF 57, dated 14 October 1958, directing inter alia that Sri S. V. G. Iyengar, Executive Engineer, be retired compulsorily from service.

2. Orders dated 4 December 1958 and 9 December 1958 of the High Court of Mysore, setting aside the order of Government dated 14 October 1958 read above.

Order No. P.W.D. 16 DAF 57, Bangalore, dated the 16 January 1959/Pushya 26, Saka Era 1880.

On a consideration of the circumstances of the case, Government has decided to hold a further inquiry against Sri S. V. G. Iyengar in respect of the allegations made against him. As he is deemed to be under suspension with effect from 14 October 1958 under sub-rule (4) of rule 10 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, he shall be paid subsistence allowance admissible under rule 98 of the Mysore Civil Services Rules, 1958, until further orders.

By order and in the name of the

Governor of Mysore,

(Sd.) D. S. Raghavendrachar,

Deputy Secretary to Govt.,

P.W. & Elcty. Dept.'

7. It is not disputed that before making the aforesaid order Government had decided very strangely to make a fresh enquiry not merely into the fourth charge, which alone in its view had been proved but also into the three charges which had been found to have been not established.

8. In W.P. No. 52 of 1959 [1960 Mys. L.J. 815] on 17 March 1959, the above order was also quashed by this Court on the ground that the petitioner was not governed by the rule which provided for retrospective suspension.

9. The order impugned in this writ petition was next made by the Government on 25 March 1959. That order is as follows :

'Read

Government Order No. P.W.D. 16 DAF 57 dated 16 January 1959, directing to hold an enquiry against Sri S. V. G. Iyeagar, Executive Engineer, in respect of certain allegations made against him and that he should be deemed to be under suspension from 14 October 1958 under rule 10(4) of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957.

2. Letter No. PWD 16 DAF 57 dated 16 January 1959, communicating to Sri S. V. G. Iyengar the charges framed by Government against.

3. Letter No. 6659/58-59 dated 18/19 March 1959 from the Advocate-General for Mysore, Bangalore, addressed to the Additional Secretary to Government, Law Department, Bangalore, communicating the decision of the High Court of Mysore in W.P. No. 52 of 1959 (Sri S. V. G. Iyengar v. The State) that the portion of the order made by the aforesaid Government order under rule 10(4) of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, had been set aside.

Order No. P.W.D. 64 SDA. 59, Bangalore, dated the 25 March 1959/Chaitra 4, Saka Era 1881

Government considers that in view of the nature of the charges framed against Sri S. V. G. Iyengar, he should be placed under suspension pending enquiry and hereby places him under suspension with immediate effect and until further orders. He shall be paid subsistence allowance admissible under the rules.

By order and in the name of the

Governor of Mysore,

(Sd.) V. Shankarappa, 25-3-59,

Under Secretary to Govt.,

P.W. & Elcty. Dept.'

10. The validity of this order is questioned on behalf of the petitioner on several grounds.

11. Before adverting to those contentions, it would be necessary to refer briefly to the material conditions of service by which persons holding civil posts in the two States were governed from time to time. After the commencement of the Constitution, the Rajpramukh of the erstwhile State of Hyderabad made rules under the proviso to Art. 309 of the Constitution, regulating the recruitment and the conditions of service of persons appointed to services and posts in connexion with the affairs of that State. It is undisputed that the legislature of that State, and after the reorganization of the States the legislature of this State, has till now made no law regulating the recruitment and conditions of service of persons appointed to services and posts in connexion with the affairs of the aforesaid States. Those rules made by the Rajpramukh of the erstwhile State of Hyderabad were made on 17 March 1952, and were called the Hyderabad Civil Services (Classification, Control and Appeal) Rules. These rules will hereafter be referred to as the 1952 rules. In supersession of those 1952 rules, the Rajpramukh of that State made another act of rules under the same provision of the Constitution on 24 November 1955, regulating the recruitment and the conditions of service of persons appointed to the services and posts of that State. Those rules were called the Hyderabad Civil Services (Classification, Control and Appeal) Rules, 1955. They will hereafter be referred to as the 1955 rules. After the reorganization of the States, the Governor of the State of Mysore, in the exercise of the powers conferred an him by the proviso to Art. 309 of the Constitution, similarly made rules, regulating the recruitment and the conditions of service of persons appointed to services and posts in connexion with the affairs of the new State of Mysore. These rules were made on 10 December 1957, and will hereafter be referred to as the 1957 rules.

12. Rule 17(d) of the 1952 rules is the rule providing for the suspension of a Government servant from service pending enquiry into charges against him. It reads as follows :-

'17 * * *

(d) A member of a service may be placed under suspension from service pending inquiry into charges against him, where such suspension to necessary in the public interest. The period of suspension, however, shall not exceed six months without the previous order of Government : Provided that in the case of the members of the State services, the period of suspension may be extended beyond a total period of one year only with the sanction of H.E.H. the Nizam.'

13. Rule 16(1) of the 1955 rules which superseded the 1952 rules contains the corresponding provision for the suspension of a Government servant. That sub-rule reads :

'16. (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place a Government servant under suspension where

(a) an enquiry into his conduct is contemplated or is pending, or

(b) a complaint against him or any criminal offence is under investigation or trial.'

14. The provision corresponding to that rule in the 1957 Mysore Rules is rule 10(1). That sub-rule is as follows :

'10. Suspension. - (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf may place a Government servant under suspension -

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(b) where a case against him in respect of any criminal offence is under investigation or trial : Provided that, where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority, the circumstances in which the order was made.'

15. It is first urged by Mr. Venkataranga Ayyangar, the learned advocate for the petitioner, that the petitioner was governed only by the provisions of rule 17(d) of the 1952 rules, and that the corresponding provisions contained in rule 16(1) of the 1955 rules, and rule 10(1) of the 1957 Mysore Rules had no application to his case. He, therefore, urged that it was necessary for the Government of Mysore when it suspended him by the order which is impugned in this writ petition, on 25 March 1959, to state in the order of suspension that such suspension was necessary in the public interest. It is urged that since the impugned order of suspension does not contain a statement that the suspension of the petitioner was considered to be necessary in the public interest, the order has to be quashed as not conforming to the requirements of rule 17(d) of the 1952 rules.

16. It is, I think, clear that even if we come to the conclusion that the petitioner was governed by the 1952 rules, although they were superseded by the 1955 rules, it would be impossible to uphold the contention that the order of suspension has to fail for the reason urged on behalf of the petitioner. It is stated in the impugned order of suspension that Government considered that in view of the nature of the charges framed against the petitioner, he should be placed under suspension pending the proposed enquiry. It is perfectly manifest that the Government having considered the nature of the charges into which an enquiry was proposed, came to the decision that the petitioner should be placed under suspension. This recital in the impugned order clearly reveals that, in the opinion of the Government, the suspension of the petitioner was necessary in the public interest, the omission to reproduce the very words of the rule in the impugned order being immaterial. The contention urged on behalf of the petitioner to the contrary must, therefore, fail.

17. But, although the view that I have taken on this question would make it unnecessary for us to embark on a discussion of the question whether the petitioner was governed by the 1952 rules or by the 1955 rules or by the 1957 rules, since this question was fully argued before us, it seems to me that we should make our pronouncement on that question.

18. The argument advanced on behalf of the petitioner that the conditions of service applicable to him are only those contained in 1952 rules, rests on the language of the proviso to Art. 309 of the Constitution. That article reads :

'309. Recruitment and conditions of service of persons serving the Union or a State. - Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connexion with affairs of the Union or of any State : Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connexion with the affairs of the Union, and for the Governor or Rajpramukh of a State or such person as he may direct in the case of services and posts in connexion with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'

19. I should mention here that it was by the Constitution (Seventh Amendment) Act, 1956, that the words 'or Rajpramukh' occurring after the word 'Governor' in the aforesaid proviso were deleted. So it was that the Rajpramukh of the erstwhile State of Hyderabad made the 1952 rules. What was strenuously urged on behalf of the petitioner was that the rules which could be made by the Governor or the Rajpramukh of a State under the proviso to Art. 309 could be made by him only once and once those rules ware made regulating the recruitment and the conditions of service of the persons appointed to the services and posts referred to in that proviso, they could not be altered, modified or varied except by an Act of the appropriate legislators. It was, therefore, urged that the 1955 and 1957 rules were beyond the competence respectively of the Rajpramukh of the erstwhile State of Hyderabad and the Governor of the new State of Mysore.

20. In my opinion, the answer to this contention is what is contained in Art. 367(1) of the Constitution which reads :

'367. Interpretation. - Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Art. 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India.'

21. Section 21 of the General Clauses Act, 1897, referred to in the aforesaid article, reads :

'21. Power to make, to include, power to add to, amend, vary or rescind orders, rules or bylaws. - Where, by any Central Act or regulation a power to issue any notifications, orders, rules or bylaws is conferred, then that Power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bylaws so issued.'

22. If the above section applies, as it should, apply having regard to the provisions of Art. 367 of the Constitution for the interpretation of Art. 309, it becomes clear that the power conferred by the proviso to that article on the Rajpramukh of the erstwhile State of Hyderabad included a power to add to, amend, vary or rescind the 1952 rules made by him under that proviso.

23. But it was urged that the provisions of the General Clauses Act, 1897, had no universal application for the interpretation of the Constitution as revealed by the opening words of that article and those words, according to Mr. Venkataranga Ayyangar, are 'Unless the context otherwise requires.' He urged that there is something in the language of the proviso to Art. 309 of the Constitution which constitutes the context which requires that the General Clauses Act shall not apply for the interpretation of that article of the Constitution. It was argued that the concluding words of the proviso to Art. 309 which read, 'and any rules so made shall have effect subject to the provisions of any such Act,' make it abundantly clear that it was not the intention of the Constitution-makers that the provisions of the General Clauses Act should apply for the interpretation of the said proviso. What is urged on behalf of the petitioner is that once the rules are made by the Governor or the Rajpramukh, as the case may be, under the proviso referred to above, those rules and those rules alone shall be rules regulating the recruitment and the conditions of service of the persons referred to in that proviso and that it was only the appropriate legislature of the State that has the competence to abrogate, vary or modify those rules. In support of this argument, emphasis is laid on the words 'rules so made' occurring in that part of the proviso which has been reproduced above. It is urged that the words 'so made' clearly indicate that the rules which shall have effect subject to the provisions of a law made by the legislature are the rules made for the first time under the proviso, whereas the modified rules made in the exercise of power conferred under S. 21 of the General Clauses Act of 1897 could not be regarded as rules made under the proviso, and, therefore, not rules 'so made' within the meaning of that expression occurring in the proviso to Art. 309 of the Constitution.

24. This argument, in my opinion, cannot succeed. It is clear from the proviso to Art. 309 that the rules which shall be effective until the appropriate legislature makes a law are not only the rules made for the first time under that proviso but include also those which are made from time to time in the exercise of the power conferred by S. 14 of the General Clauses Act, 1897, and also those rules as modified, amended or varied in the exercise of the power conferred by S. 21 of the General Clauses Act. Rules so made in the exercise of the power conferred by the General Clauses Act have, it is clear, to be regarded as rules undoubtedly made under the proviso to Art. 309 of the Constitution. The source of the power in the exercise of which the 1955 and 1957 rules were made is undoubtedly the proviso to Art. 309 of the Constitution. If the 1952 rules were superseded by the 1955 rules or by the 1957 rules, the power exercised for such supersession is still the power conferred by the proviso to Art. 309 of the Constitution, the exercise of which is however regulated by the provisions of Ss. 14 and 21 of the General Clauses Act. Any other interpretation would, it is obvious, lead to incongruous and extraordinary situations such as where the rule-making authority would be powerless to rescind or modify the conditions of service however absurd, unreasonable, and unsatisfactory they might be. We should, in my opinion, refrain from adopting any such unreasonable rule of interpretation.

25. We should, in my opinion, therefore, hold that the 1955 and 1957 rules made respectively by the Rajpramukh of the erstwhile State of Hyderabad and the Governor of the new State of Mysore, were entirely within their competence.

26. That being so, the petitioner before he was provisionally allotted to the new State of Mysore was governed by the 1955 rules in which the rule relating to the suspension of a Government servant is rule 16(1). The 1957 rules made by the Governor of the new State of Mysore under the proviso to Art. 309 of the Constitution after the reorganization of the States superseded the 1955 rules. It is obvious that the 1957 rules should be held to have superseded the 1955 rules unless there was something in the 1957 rules which could be considered to amount to a variation of the 1955 rules to the disadvantage of the petitioner. If they had been so varied, as pointed out by us in Writ Petition No. 52 of 1959 [1960 Mys. L.J. 815] those rules which have the effect of varying the 1955 rules to the disadvantage of the petitioner cannot constitute the conditions of service of the petitioner, violating as they do the protection afforded to him by the proviso to Sub-section (7) of S. 115 of the States Reorganization Act.

27. In that view of the matter, rule 10(1) of the 1957 rules which provides for the suspension of a Government servant would constitute one of the conditions of the service of the petitioner unless that rule varied to his disadvantage the corresponding rule 16(1) of the 1955 rules. It was not urged before us that there was any such variation of rule 16(1) of the 1955 rules to the disadvantage of the petitioner when the Governor of the new State of Mysore made rule 10(1) of the 1957 rules. It is, therefore, clear that rule 10(1) of the 1957 rules constituted one of the conditions of the petitioner's service when he was placed under suspension be the order impugned in this writ petition on 25 March 1959. Rule 16(1) of the 1955 rules ceased to be a condition of his service after the promulgation of the 1957 rules.

28. Now, as can be seen from rule 10(1) of the 1957 rules, the petitioner who was undoubtedly governed by that rule, was liable to be placed under suspension where a disciplinary proceeding against him was contemplated or was pending or where a case against him in respect of any criminal offence was under investigation or trial.

29. It is, however, not disputed that no case against the petitioner in respect of any criminal offence is under investigation or trial. What is urged on behalf of the State and what is stated in the impugned order is that a disciplinary proceeding against the petitioner had been commenced. If a disciplinary proceeding against the petitioner had been commenced on the date of the impugned order, there can be no difficulty in coming to the conclusion that the suspending authority was competent to place the petitioner under suspension.

30. But it was contended on behalf of the petitioner, though faintly, that in this case, no disciplinary proceeding against the petitioner was either contemplated or pending on the date of the impugned order. It was urged that a disciplinary proceeding during the pendency of which a Government servant may be placed under suspension should be a a disciplinary proceeding for misconduct and that in this case there was no such disciplinary proceeding against the petitioner. The argument was that the four charges in respect of which the proceedings against the petitioner has been commenced related only to conduct on the part of the petitioner giving rise to a civil liability on his part, not amounting to misconduct in regard to which a disciplinary proceeding could be commenced against him.

31. On a careful persual of the charges framed against the petitioner, it becomes abundantly clear that this contention is groundless.

32. The first charge is that the petitioner got some work done in the project, of which he was in charge, without obtaining, as required, the approval of the Chief Engineer to the estimate for the work, which was objectionable and contrary to rules. The second charge is that the petitioner purchased sleepers for an item of work without calling for any quotations as a result of which the State was exposed to pecuniary loss. The third charge is that the petitioner carried out another item of work without obtaining the approval of the competent authority. The fourth charge is that the petitioner let out the work of collection of some quantities of sand to petty contractors without calling for tenders and without obtaining, as required, the permission of the competent authorities. The general charge against the petitioner was that he had thus shown

'gross negligence, disregard of procedure, lack of foresight and organizing capacity, and remissness in (his) duties as Executive Engineer, which have occasioned pecuniary loss.'

33. There can be no doubt that there is no merit in the contention that the charges made against the petitioner are not charges of misconduct in regard to which a disciplinary proceeding can be commenced, nor can it be reasonably urged that the conduct of the petitioner such as what is referred to in those charges is only such conduct as would give rise to a mere civil liability on the part of the petitioner without exposing him to a disciplinary proceeding in respect thereof.

34. There remain to be considered two other attacks made on the impugned order. The first of them is that the order of suspension has to be quashed on the ground that it has been made as a result of the commencement of an enquiry into all the four charges, originally framed against the petitioner though in respect of the first three of those charges the petitioner was exonerated, as stated in the Government order dated 14 October, 1948. It has to be recalled at this stage that when the Government of Mysore made an order on 14 October, 1958, that the petitioner be compulsorily retired, that punishment was imposed only in respect of the fourth charge which, according to the Government, had been proved. When that order of compulsory retirement was set aside by this Court in W.P. No. 424 of 1958 on the admitted ground that the second opportunity required by Art. 311 of the Constitution had not been afforded to the petitioner, Government decided to make a further regular enquiry not merely into the fourth charge, which alone according to the Government was established, but also into the remaining three charges of which he had been already exonerated. The submission made to us on behalf of the petitioner is that that proposed enquiry into those three charges was illegal and that it was not open to the Government to make an enquiry into those charges which had been already held to have been not established. It is, therefore, urged that if that part of the enquiry has to be held as incompetent and in excess of jurisdiction, the enquiry has to be directed to be confined only to the remaining fourth charge. If that is done, it is argued that the order of suspension which rests on a consideration of all the four charges has also to fail.

35. The other attack made by the petitioner on the impugned order is that it was made mala fide. It is submitted on behalf of the petitioner that the order of suspension was actuated by collateral considerations. It is pointed out that although the enquiry into the irregularities with which the petitioner was charged commenced as long ago as in the year 1951, in the erstwhile State of Hyderabad, the enquiring authorities of that State never considered it necessary to place him under suspension during that enquiry. It is further pointed out that although by the time of the reorganization of the States that enquiry had almost reached its termination, the petitioner, instead of being placed under suspension as a result of the tentative conclusion reached in that enquiry, was posted to work in a project known as the Nagarjuna Sagar Project in the State of Andhra Pradesh and that thereafter the petitioner continued to work in that project till February, 1958, when he was posted as a Deputy Chief Engineer of the State of Mysore. Even thereafter, till the order of compulsory retirement was made on 14 October 1958, the petitioner was not placed under suspension.

36. It was strenuously urged on behalf of the petitioner that after the order of compulsory retirement was set aside, although it was done on the basis of a memo produced by the learned Advocate-General on behalf of the State in which it was admitted that that order could not be sustained, the new enquiry which was started was made to embrace even the charges that had been disproved, by way of reprisal. It was next pointed out that having done that, the Government made an order on 16 January, 1959, treating the petitioner as being under what may be described as retrospective suspension under rule 10(4) of the 1957 rules. It was submitted that it should have been clear to the Government that that rule could have no application whatsoever to the case of the petitioner since the provisions of that rule are clearly inapplicable to a case where the disciplinary authority decides to hold a further enquiry not only on the allegations in which the penalty of compulsory retirement was originally made, but also on the other allegations in regard to which the petitioner had been exonerated.

37. It is argued before us that when that order under rule 10(4) of the 1957 rules was set aside by this Court by the order made on 17 March, 1959, the order which is impugned in the present writ petition placing the petitioner under prospective suspension was made in undue haste on 25 March, 1959, even before the order of this Court was communicated to the government. The petitioner has also referred in the course of his affidavit to other circumstances which according to him establish his contention that the order which is challenged in this writ petition was based on collateral considerations and therefore mala fide.

38. After the arguments addressed on behalf of the petitioner had concluded, the learned Government Pleader stated before us that Government would drop the three charges in respect of which the petitioner had been exonerated and that the enquiry now pending against him would be confined only to the fourth charge. The learned Government Pleader presented a memo to that effect before us on 15 June 1959.

39. I have not the slightest hesitation in coming to the conclusion that the enquiry which was commenced against the petitioner in respect of the three charges which have now been dropped was beyond their competence since in respect of those charges the Government had exonerated him by its order dated 14 October, 1958. That being so, the commencement of an enquiry into those three charges along with the fourth charge was plainly in excess of jurisdiction, and when the Government made the order of suspension which is challenged in this writ petition, they could not have based it on those three charges and could not have properly taken into consideration the nature of those charges to reach the conclusion whether or not the petitioner should be placed under suspension under rule 10(1) of the 1957 rules. But the order of suspension makes it very clear that the decision taken by the Government to suspend the petitioner rested not merely on the fact that an enquiry had been commenced against the petitioner in respect of the fourth charge but also on the fact that that enquiry had been commenced in respect of the other three charges. If no further enquiry into those three charges could have been legitimately commenced by the Government against the petitioner, it becomes manifest that the order of suspension made after the commencement of an enquiry which was substantially outside the competence of the State in the sense that the three disproved charges could not have been properly made the Subject-matter of that enquiry, must be regarded to have been partially, if not principally, based on irrelevant and extraneous considerations.

40. It was, however, urged by the learned Government Pleader that the fourth charge to which the enquiry has now been confined is also a serious charge in respect of which the Government considered it proper to impose a penalty of compulsory retirement and that therefore oven if the three other charges which have now been dropped could not have been properly made the Subject-matter of the further enquiry commenced by the Government, the order of suspension which also rests on the fourth charge was entirely within the competence of the State and is not liable to be disturbed.

41. I am not convinced that we should take the view that although the order of suspension rested when it was made on the fact that the further enquiry had been commenced into all the four charges and it is clear that that enquiry could not have been properly commenced in respect of three of them, and therefore, has to be confined, as it has been done, only to the fourth charge, we should nevertheless proceed to hold that the order of suspension should be maintained. Whether or not the Government would have placed the petitioner under suspension if the further enquiry had been restricted to the fourth charge and to what extent the gravity of the three other charges influenced the decision of the Government, is a matter on which it would not be open to us to speculate. If a substantial part of the foundation for the order of suspension was irrelevant as it has been hold to be, and has now disappeared by reason of the decision taken by the Government to drop the three other charges, it to, I think, clear that the order has to be set aside.

42. In this view of the matter, it becomes, in my opinion, unnecessary for us to express any opinion on the contention urged before us that the order of suspension is also liable to be set aside on the ground that it was actuated by collateral considerations and was therefore mala fide.

43. In the result, this writ petition succeeds. The order of suspension made by the Government on 25 March 1959 is set aside.

44. The petitioner must get the costs of this writ petition from the respondent, advocate's fee being fixed at Rs. 100.


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