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Varadha Rao Vs. State of Karnataka and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.A. No. 523 of 1976
Judge
Reported inILR1977KAR635; 1977(1)KarLJ291; (1978)ILLJ78Kant
ActsMysore Civil Services Rules - Rules 10(1), 10(5), 10(6), 93(A) and 98(A)
AppellantVaradha Rao
RespondentState of Karnataka and anr.
Excerpt:
.....envisages that an order passed by the suspending authority under sub-rule (1) of rule 10 would continue to be operative till the completion of the enquiry and sub-rule (6) did not place any fetter on the power of the suspending authority to pass an order which could be co-extensive with the period of enquiry as the said rule merely required the suspending authority to intimate the government about the suspension of the employee if it felt that the enquiry against the said employee was unlikely to be concluded within six months from the date of passing of the suspension order......of six months from the date of suspension it passed an order ext. e on 28-1-1976 extending the period of suspension of the appellant for a further period of six months or till the date of completion of the enquiry whichever happened earlier and also sanctioned subsistence allowance by the very order at a scale mentioned therein. the government on again being informed by the labour commr. about the factum of the enquiry not likely to be completed by the enquiry not likely to be completed by the date of the expiry of the extended] period of suspension, passed another order on 2-7-1976 (ext. a), whereby it extended the period of suspension by another two months or till the date of completion of the enquiry whichever happened earlier, and, by the same order, also sanctioned payment of.....
Judgment:

Tewatia, J.

1. This appeal arises out of Writ Petition No. 7948 of 1976 filed by the appellant challenging there in an order dated 10-9-1976 annexed to the petition as Ext. B, whereby the Government had ordered the continuance of the suspension of the appellant for a further period of three months or till the dated of the completion of the enquiry whichever event occurred first.

2. In order to appreciate the import of the challenge to the impugned order, a few relevant facts which are not in dispute may be noticed. These can be stated thus : The appellant, a Labour Inspector, was suspended by the Labour Commissioner pending enquiry against him by his order dated 2-7-75. On the very day, the Labour Commissioner sanctioned subsistence allowance to the appellant by order Ext. D. The Government on being apprised by the Labour Commissioner that the enquiry initiated by him against the appellant was unlikely to be completed before the expiry of six months from the date of suspension it passed an order Ext. E on 28-1-1976 extending the period of suspension of the appellant for a further period of six months or till the date of completion of the enquiry whichever happened earlier and also sanctioned subsistence allowance by the very order at a scale mentioned therein. The Government on again being informed by the Labour Commr. about the factum of the enquiry not likely to be completed by the enquiry not likely to be completed by the date of the expiry of the extended] period of suspension, passed another order on 2-7-1976 (Ext. A), whereby it extended the period of suspension by another two months or till the date of completion of the enquiry whichever happened earlier, and, by the same order, also sanctioned payment of subsistence allowance to a scale mentioned therein. When Government was again informed by the Labour Commissioner that the enquiry against the appellant was unlikely to be completed before the expiry of the extended period of suspension, it passed the impugned order dated 10-9-1976 according sanction to the continuance of the period of suspension for a further period of three months or till the completion of the enquiry whichever event occurred first.

3. The appellant challenged this latest order of the Government on the ground that it amounted to an order suspending him with retrospective effect from 1-9-1976 the date on which the operation of the order dated 2-7-1976, came to an end. His contention did not find favour with the learned single Judge, who, relying on the ratio of a Division Bench decision of this Court, in M. Subba Rao v. The Assist. Commr. (1963) 1 Mys. L.J. 434, held that the original order of suspension dated 2-7-1975 continued to ensure.

4. The appellant who appears in person before us, has reiterated his contention advanced before the learned single Judge. While elaborating his submission, he urged that the original order dated 2-7-75 stood modified by the order of the Government dated 28-1-1976 and thereafter it was the modified order which held the field from time to time. The order dated 2-7-1976 was the last of the series of such orders, the operation whereof exhausted itself on 1-9-1976. On that date, there being no fresh order of suspension, the result was that the suspension of the appellant came to an end on that date and notionally from that date onwards he had to be considered as on duty. The order dated 10-9-1976 which sought to extend the period of suspension with effect from 2-9-1976 was in the nature of an order of suspension operating with retrospective effect which was not warranted by any provision of law or rules. He sought to sustain his submission that no order of suspension with retrospective effect could be passed by the ratio of the Division Bench decision of this Court rendered in W.P. No. 1250 of 1970 on 2-2-1973.

5. Mr. Puttaswamy appearing for the respondent-State, on the other hand, argued that the three orders that State Government passed from time to time including the impugned one, should be construed to have been passed under Rule 93(A) of the Mysore Civil Services Rules granting subsistence allowance to the appellant.

6. We do not think that the contention advanced on behalf of the State can bear scrutiny. A bare perusal of the three orders in question including the impugned one, leaves no manner of doubt that these are composite orders, one extending the period of suspension from time to time and the other sanctioning payment of subsistence allowance. For case of reference and for illustration, the impugned order dated 10-9-1976 is extracted. It reads :

PROCEEDINGS OF THE GOVT. OF KARNATAKA

Sub : Extension of period of suspension of Sri B. Varadha Rao, Labour Inspector, from 2-9-1976.

Read :

1. GO. No. SWL 170 LET 76 dated 2-7-1976.

2. Letter No. CA/CR-8/75-76 dated 21-8-1976 from the Commissioner of Labour in Karnataka, Bangalore.

Preamble :

In the GO. dated 2-7-1976 read at Sl. No, (1) above, sanction was accorded to the continuance suspension period of Sri Varada Rao, Labour Inspector,

'for a period of two months from 2-7-1976 and to the payment of subsistence allowance at an amount equal to 90 per cent of the pay under Rule 98(A) of KCS Rules. For the reasons explained in his letter dated 21-8-1976 read at Sl. No. (2) above, the Commissioner of Labour has requested orders of Government for further continuance of suspension period for a period of three months from 2-9-1976.

Order No. SWL 170 LET 76, Bangalore, dated 10th September, 1976.

Sanction is accorded to the continuance of suspension period of Sri B. Varadha Rao, Labour Inspector for a further period of three months from 2-9-1976 or till the completion of the enquiry whichever is earlier and to the payment of subsistence allowance to him at an amount equal to 90 per cent of the pay which he was in receipt, immediately prior to the date of suspension as admissible under Rule 98(A) of KCS Rules during the extended period.

By Order and in the name of the Governor of Karnataka,

Sd./- (K. Mylarappa),

Under Secry. to Govt,

Social Wel. & Labour Dept.

7. Rule 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, hereinafter referred to as 'the Rules' is the one which bears upon the suspension of an employee. The relevant provisions thereof read as under :

'10. Suspension (1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Govt. 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 forth with report to the Appointing Authority the circumstances in which the order was made.

* * * (5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.

* * * (c) An order of suspension made or deemed to have been made under this rule may at any be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.

(6) Where a Government servant has been suspended by an authority other than Government and final orders in the inquiry pending against him have not been passed within a period of six months from the date of order of suspension, the case shall be reported to Government for such order as it may deem fit'.

8. A combined reading of sub-rule (1) and sub-rule (5)(a) of Rule 10 leaves no doubt about the fact that an order passed under sub-rule (1) of Rule 10 could be indefinite and terminable only with the termination of the enquiry, unless the authority which passed the order of suspension or the authority to which it was a subordinate authority, modified or revoked the same acting under clause (c) of sub-rule (5) of Rule 10. The question, therefore, which arises for consideration is as to whether the very first order dated 28-1-1976 (Ext. E) was an order passed by the Government in exercise of its power under clause (c) of sub-rule (5) of Rule 10. That order is in the following terms :

PROCEEDINGS OF THE GOVT. OF KARNATAKA

Sub : Extension of the period of suspension of Shri B. Varada Rao,Labour Inspector.

Read : Letter No. CCA/CR. 8/75-76 dated 20-12-75 of the Commr. of Labourin Karnataka, Bangalore.

Preamble :

The Commissioner of labour has reported that Shri B. Varadha Rao, Labour Inspector was placed under suspension with effect from 2-7-75 pending enquiry into certain allegations against him and that the period of suspension expired on 1-1-1976 and that the enquiry could not be completed :

'Order No. SWL 18 LET 76 Bangalore dated the 28th January, 1976.

Sanction is accorded to the continuance of Sri B. Varadha Rao, Labour Inspector, under suspension for a further period of six months from 2-1-1976 or till the completion of the enquiry whichever is earlier and to the payment of subsistence allowance to him at an amount equal to 75 per cent of the pay which he was in receipt immediately prior to the date of suspension as admissible under Rule 98(A) of the KCRs during the extended period.

By Order and in the name of the Governor of Karnataka,

Sd./- (K. Mylarappa),

Under Secry. to Govt.,

Social Wel. & Labour Dept'.

A perusal of the aforesaid order leaves no room for any doubt about its true nature, and it could not have been more expressive about its nature. The Government by this order expressly modified the order passed by the Labour Commissioner on 2-7-1975 which regarding the period of suspension was indefinite in nature. The modification made by the Government to this order by order dt. 28-1-1976 was that it fixed a time limit to the operation of the order of suspension. While there is no fetter on the power of the Government to pass an order extending the operation of its earlier order from time to time, that could be done only when the earlier order was still in operation.

9. An argument was advanced on behalf of the State which appealed to the learned single Judge, that the Government could pass an order only after a report was sent to it under sub-rule (6) of Rule 10, and since in the nature of things at times it would be unlikely for the Government to deal in time with the communication received from the authority which had passed the initial order of suspension, so it could not be said that if the Government passed the order sanctioning continuance of suspension after the expiry of six months of the earlier order, the later order would be invalid and would be construed as retrospective in nature.

10. In our opinion, the contention advanced in absolutely irrelevant, for one thing that neither of the three orders including the one that has been impugned could be said to have been passed under sub-rule (6), for sub-rule (6) merely casts an obligation on the authority which passed the initial order of suspension to apprise the Government of the factum of suspension of the employee concerned if it felt that the enquiry against the said employee was unlikely to be concluded within six months from the date of suspension. In a case where, for instance, the suspending authority apprehended no such eventuality, it would not address a communication to the Government and the Government would have no occasion to pass any such order, and, even in a situation where the suspending authority had to apprise the Government under sub-rule (6), it did not oblige the Government to pass any order. It is clause (c) of sub-rule (5) of Rule 10 that in fact invests both the suspending authority as also the Government to modify or to revoke the initial order of suspension; (2) and for another that suspending authority is in our view obliged to communicate to the Government only to the first instance under sub-rule (6) if it felt that the enquiry was not likely to conclude before the expiry of six months from the date of suspension of the employee. Having done so, it was not again obliged to do so, and, therefore, there is no merit in the submission that sub-rule (6) was attracted to the facts of the present case, and the provision thereof could be given effect only to if Government was not constrained to pass orders before the expiry of six months either from the date of the initial order of suspension or the subsequent orders modifying the initial order passed by the suspending authority itself or by the Government.

11. As already observed, that the order dt. 28-1-76 and 2-7-76 were the orders passed by the Government modifying the earlier order by the later order, and the later order dt. 2-7-1976 exhausted itself on 1-9-1976 and the appellant's suspension came to an end on that date and from that date onwards he was to be treated notionally on duty, the impugned order dated 10-9-1976, not being an order suspending the appellant under sub-rule (1) of Rule 10 and merely seeking to extend an order which no longer existed as it had come to an end on 1-9-1976, was clearly beyond the powers of suspension conferred on the Government under Rule 10.

12. Subba Rao's case relied upon behalf of the State before the learned single Judge is clearly distinguishable. That was a case in which an order indefinite in regard to its operation was passed by the suspending authority under sub-rule (1) of Rule 10. The enquiry had not concluded within six months of the passing of that order. The petitioner therein challenged the validity of that order on the ground that an order passed under sub-rule (1) of Rule 10 would not ensure for more than six months and unless that order was extended within six months, the same would automatically come to an end on the expiry of six months of its passing. In support of the said submission, reliance was placed on sub-Rule (6) which is already extracted. The provisions of sub-rule (6) do not, in our view, support the submission advanced before the Court and the Division Bench rightly repelled the contention, for sub-rule (5)(a) clearly envisages that an order passed by the suspending authority under sub-rule (1) of Rule 10 would continue to be operative till the completion of the enquiry and sub-rule (6) did not place any fetter on the power of the suspending authority to pass an order which could be co-extensive with the period of enquiry as the said rule merely required the suspending authority to intimate the Government about the suspension of the employee if it felt that the enquiry against the said employee was unlikely to be concluded within six months from the date of passing of the suspension order.

13. For the reasons aforesaid, we quash the impugned order and allow the writ petition, while setting aside the judgment of the learned single Judge. The appellant shall have his cost in this appeal.

14. Before parting with the judgment, we might take note of some post-petition development. In the wake of the dismissal of the writ petition, an order dated 11-11-76 was passed which sought to place the appellant under suspension. It reads :

'Consequent on the dismissal of the W.P. 7948 76 filed by Sri B. Varadha Rao in the Hon'ble High Court of Karnataka, this office memo of even number dated 12-10-1976 reinstating Shri B. Varadha Rao, as Labour Inspector, Shimoga, is hereby cancelled.

Shri B. Varadha Rao, Labour Inspector, Shimoga is placed under suspension with immediate effect pending enquiry.

Shri Basheeruddin, Labour Inspector, Hospet is transferred and posted as Labour Inspector, Shimoga in the interest of public service.

Shri D. S. Giriyan, First Divn Clerk, office of the Labour Officer, Shimoga will relieve Shri B. Varadha Rao, immediately and be in additional charge of the Labour Inspector, Shimoga until Shri Basheeruddin reports for duty.'

The Bench admitting the present appeal granted stay of the operation of the order dated 10-9-1976 as also the order Ext. F. dated 11-11-1976. The stay order so granted was later on vacated and in the wake of vacation of the said stay order, another order dated 10-2-1977 Ext. H suspending the appellant came to be made. This order is in the following terms :

'Consequent on the vacation of the interim order of stay issued in W.A. 523 of 1976 on the file of the High Court of Karnataka Sri B. Varadha Rao, Labour Inspector, Shimoga, is placed under suspension with immediate effect until further orders.

Shri Basheeruddin, Labour Inspector, Hospet is transferred and posted as Labour Inspector, Shimoga in the interest of public service.

Sri B. Varadha Rao will be relieved immediately by Sri D. S. Giriyan, First Divn. Clerk of the Labour Officer, Shimoga who has been placed in additional charge of the duties of Labour Inspector, Shimoga until Shri Basheeruddin reports for duty'.

It is needless to mention that these two orders came to be passed on the footing that the order dated 10-9-1976 was a valid one. Since we have already held the said order to be an invalid order, these later orders would have no basis to survive, in so far as the same related to the suspension of the appellant.


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