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Subba Rao (M.) Vs. Assistant Commissioner and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 971 of 1961
Judge
Reported inILR1962KAR972; (1963)IILLJ323Kant; (1963)1MysLJ434
ActsMysore Civil Services (Classification, Control and Appeal) Rules, 1957 - Rules 3(1), 10(1) and 10(6)
AppellantSubba Rao (M.)
RespondentAssistant Commissioner and anr.
Excerpt:
.....expiry of six months make his report to the government and although it is equally clear that the government should after the receipt of that report make its own orders on the matter as expeditiously as possible, what is incontrovertible is that the time necessary to make the report and the time necessary for the government to make its order when added to the period of six months, referred to in sub-rule (6) would make the aggregate period longer than six months thus effectively displacing the submission made to us by mr. but the fact that we are not satisfied that there is sufficient ground for the non-commencement of the disciplinary proceeding for a period of little more than six months, does not, in my opinion, entitle the petitioner to ask us to quash the order of suspension......proceeding was not commenced with the result that the petitioner issued a notice to the assistant commissioner on that date demanding reinstatement. that demand having been not complied with, this application has been presented to us in which the petitioner seek a mandamus to the assistant commissioner directing his reinstatement. 2. mr. hegde complains before us that although the order of suspension was made as long ago as on 1 february, 1961 no charge has been framed against the petitioner until today with the result that no disciplinary proceeding against him has yet commenced. his next submission was that under the provisions of rule 10(6) of the mysore civil services (classification, control and appeal) rules, 1957, the order of suspension made by the assistant.....
Judgment:
ORDER

Somnath Ayyar, J.

1. The petitioner is a shanbhogue in the district of South Kanara, and by an order made by the Assistant commissioner on 1 February, 1961 he was placed under suspension pending completion of a disciplinary proceeding which has contemplated against him. Until 18 August, 1961 that disciplinary proceeding was not commenced with the result that the petitioner issued a notice to the Assistant Commissioner on that date demanding reinstatement. That demand having been not complied with, this application has been presented to us in which the petitioner seek a mandamus to the Assistant Commissioner directing his reinstatement.

2. Mr. Hegde complains before us that although the order of suspension was made as long ago as on 1 February, 1961 no charge has been framed against the petitioner until today with the result that no disciplinary proceeding against him has yet commenced. His next submission was that under the provisions of rule 10(6) of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, the order of suspension made by the Assistant Commissioner spent itself on 1 August, 1961 entitling the petitioner to be reinstated in his post with effect from that date.

3. The Government Pleader's answer to the second submission made by Mr. Hegde was, firstly that the provisions of the Mysore Civil Service (Classification, Control and Appeal) Rules were inapplicable to the disciplinary proceeding which the Assistant Commissioner intended to commence against the petitioner, since as stated in rule 3(1)(d) of those rules they were inapplicable to persons for whose appointment and other matters covered by the rules, special provision has been made by or under some other law. The argument advanced before us by the Government Pleader was that provision for the appointment of the petitioner and for other matters covered by the Mysore Civil Services (Classification, Control and Appeal) Rules, had been made by the standing orders of the Madras Board of Revenue by which the petitioner was still governed, and that the Mysore Civil Service) Classification, Control and Appeal) Rules were therefore inapplicable to the petitioner.

4. It does not appear to me necessary to express any opinion on the validity of the argument advanced by the Government Pleader that the provisions of the Mysore Civil Service (Classification, Control and Appeal) Rules did not govern the disciplinary proceeding intended to be commenced against the petitioner, since even if those disciplinary proceedings were regulated by those rules, the petitioner cannot succeed in his contention that the order of suspension made by the Assistant Commissioner on 1 February, 1961 came to an end six months after that order was made.

5. Rules 10(6) on which Mr. Hegde founded his argument that the suspension came to an end in that way reads :

'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 orders as it may deem fit.'

6. Rule 10(1) is the provision under which an order of suspension may be made and that rule reads :

'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.'

7. No part of rule 10 delimits the period of suspension which may be made by the authority specified in that rule. Nor does sub-rule (6), in my opinion, on its true construction direct that an order of suspension should come to an end after the expiry of a period of six months from the date on which it was made. All that that sub-rule directs is that where an order of suspension has been made by an authority other than the Government and the disciplinary proceeding has not been concluded within a period of six months from the date of suspension, a report shall be made to Government by the authority who made the order of suspension for such orders as Government may deem fit to make.

8. Now one thing which is very clear from the provisions of this sub-rule is that the report which is directed to be made under its provisions, has to be made only after the period of six months referred to in it has expired. The fact that a report has to be made only after the expiry of that period of six months makes it abundantly clear that the argument that the order of suspension comes to an end the moment the period of six months expires, cannot stand scrutiny. The only duty enjoined by this sub-rule is that the officer who made the order of suspension must make a report to the Government to all cases in which the disciplinary proceeding is not concluded within a period of six months so that the Government may by the application of its mind to the facts and circumstances of the case make a proper order. It is obvious that when a report is received by the Government in that way, it would be open to Government to make an order vacating the order of suspension or to make some other order including one directing the expeditious disposal of the disciplinary proceeding or the discontinuance of that disciplinary proceeding. Whatever may be the order, which the Government may make under sub-rule (6), it is clear that neither the fact that the Government has been conferred the power to make that order nor the fact that the suspending authority has been enjoined to make a report to the Government, can justify the view that the order of suspension despairs with the expiry of the period of six months referred to in it. Although it is manifest that the authority who made the order of suspension must within a reasonably short time after the expiry of six months make his report to the Government and although it is equally clear that the Government should after the receipt of that report make its own orders on the matter as expeditiously as possible, what is incontrovertible is that the time necessary to make the report and the time necessary for the Government to make its order when added to the period of six months, referred to in sub-rule (6) would make the aggregate period longer than six months thus effectively displacing the submission made to us by Mr. Hegde that the maximum period during which an order of suspension can be in force unless that period is extended by Government under sub-rule (6), can only be six months.

9. This is therefore a case in which it is not, in my opinion, possible for us to say that the order of suspension made by the Assistant Commissioner ceased to have effect on and from 1 August, 1961. The true meaning of sub-rule (6) of rule 10 is that an order of suspension made under sub-rule (1) continues to be in force notwithstanding the fact that a period of six months has expired after that order was made until by an order made by the Government under sub-rule (6) that order of suspension is vacated or until the order of suspension disappears by some other process known to law. This being the true construction to be placed upon sub-rule (6), it becomes immaterial whether the disciplinary proceedings which were intended to be commenced against the petitioner and which unfortunately have not been commenced until now although a period of nearly eighteen months have elapsed after the order of suspension was made, were governed by the Mysore Civil Services (Classification, Control and Appeal) Rules or by the standing orders made by the Board of Revenue, Madras.

10. With regard to the other complaint made by Mr. Hegde, it must be said that it is very regrettable that no disciplinary proceedings were commenced against the petitioner until this application was made to us although a period of more than six months had elapsed by then. The Government Pleader has not been able to tell us why the Assistant Commissioner did not find it possible to start the disciplinary proceeding which he wished to commence. But the fact that we are not satisfied that there is sufficient ground for the non-commencement of the disciplinary proceeding for a period of little more than six months, does not, in my opinion, entitle the petitioner to ask us to quash the order of suspension. The Government Pleader is, in my opinion, perhaps justified in asking us to think that the omission on the part of the Assistant Commissioner to start the disciplinary proceeding after the presentation of the writ petition to this Court, was attributable to the pendency of this writ petition during the pendency of which the Assistant Commissioner thought that he could not properly commence the disciplinary proceeding. We have also been informed that the Assistant Commissioner has not till now made any report to the Government under sub-rule (6) seeking its orders under its provisions. It seems to me that the petitioner himself was responsible for the difficult predicament in which the Assistant Commissioner found himself in regard to the report directed by sub-rule (6). He hardly gave the Assistant Commissioner any time to make that report : within about a fortnight after the expiry of six months referred to in that sub-rule, he issued a notice to the Assistant Commissioner demanding his reinstatement and within ten days after the issue of that notice he presented this writ petition.

11. In those circumstances, the only direction that we need, in my opinion, issue would be that the Assistant Commissioner should now commence his disciplinary proceedings and complete them within a period of two months from this date. An order is made accordingly.

12. Mr. Hegde has pointed out to us that a clerk who had also been placed under suspension along with the petitioner has since been reinstated without the commencement of any disciplinary proceeding against him. It would be for the Assistant Commissioner to consider whether at this distance of time it would be just and equitable particularly since for one reason or the other no disciplinary proceeding has yet been commenced against the petitioner, that similar reinstatement should also be made in the case of the petitioner also.

13. Let this order be communicated to the Assistant Commissioner forthwith.

14. There will be no order as to costs.

Kalagate, J.

15. I agree.


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