1. The order of the Court was delivered by Shrivastava J. This petition under Article 226 of the Constitution has been filed by L. P. Hirway against the order of the State Government dated 5-8-1958 by which he has been suspended with effect from 21-6-1956.
2. The following facts are undisputed. The petitioner was employed in the judicial service of Gwalior State, but he was dismissed from his post in the year 1946. He represented against his dismissal. On 2-11-1949, he was appointed in a temporary post for six months, and he continued to work therein even after the expiry of that period. On 28-10-1952, the Madhya Bharat Government allowed his representation and issued a memorandum re-instating him permanently.
Thereafter, the petitioner again committed some irregularities and a departmental enquiry was started against him. The enquiring officer, Shri Banwalikar submitted a report to the Government, and thereafter, on some more charges, Shri NarayanSingh, Collector, Indore, submitted a report after making enquiries. While these enquiries were going on, the petitioner was suspended by memorandum, dated 15-7-1955.
No decision was taken on the reports submitted by Shri Banwalikar and Shri Narayan Singh, but, on 19-6-1956, the Government issued an order cancelling the restoration order of 1952 and thus putting the petitioner on a temporary basis. Two days later, a notice of one month terminating his services was given to him.
3. Thereafter, the petitioner moved the Madhya Bharat High Court for a writ for quashing the two orders passed in 1956. The High Court allowed the petition and quashed the orders, holding that they amounted to 'dismissal' and were hit by the provisions of Article 311 of the Constitution. This decision was by a Division Bench of the High Court of Madhya Pradesh on 8-10-1957 and is re-ported in L.Hirway v. M. B. State, AIR 1958 MP 135; Later, the Government passed the impugned order dated 5-8-1958, by which the petitioner was reinstated but was again continued under suspension.
4. The petitioner's case is that the impugned order is invalid, in so far as it gives effect to his suspension retrospectively. He states that there was no enquiry really pending against him, and the order was mala fide. The order of suspension is, therefore, totally inoperative. It is also stated that the effect of the cancellation of the orders of the Government passed in 1956 by the High Court was that the Government could not take action on the reports of officers submitted prior to 1956, Accordingly, he prays--
(i) for quashing the order dated 5-8-1958,
(ii) for a direction ordering the Government to pay him the arrears of pay, and
(iii) for prohibiting the Government to pass orders on the reports made by the enquiring officers.
5. In the return submitted on behalf of the Government, it is stated that the orders passed in 1956 had nothing to do with the earlier departmental enquiries. They were passed, as the order of reinstatement passed in 1952 was found to be irregular. The cancellation of the orders of 1956 by the High Court restored the position which was obtaining prior to 19-6-1956, and therefore the order suspending the petitioner was revived. The impugned order only states this position and is therefore not liable to be set aside.
As regards the enquiry, it is still pending and an auditor has been appointed to enquire into the amounts which were embezzled by the petitioner out of the compensation amounts payable to workmen deposited with him. It is claimed that the suspension was justified on account of the nature of the charges.
6. The first contention of Shri Inamdar for the petitioner is that the order dated 5-8-1958 is invalid in so far as it gives retrospective effect to the suspension. He relies upon the decision in Om Prakash Gupta v. State of U. P., (S) AIR 1955 SC 600, for the proposition that the suspension order merged in the removal order and could not be revived by the cancellation of the removal order.
Further, he also urges that an order of suspension, by its very nature, cannot be retrospective. On the other hand, Shri S. B. Sen for the State contends that the order of removal passed in 1956 had nothing to do with the departmental enquiry and was not therefore connected with the suspension. Accordingly, he contends that the decision inOm Prakash Gupta's case, (S) AIR 1955 SC 600, has no application to the facts of the case.
7. It is, no doubt, true that in Om Prakash Gupta's case, (S) AIR 1955 SC 600, the order of removal, which was held to be wrong, was passed. in the departmental enquiry in which the suspension order was also passed. The following observations were made in that case on the effect of the cancellation of the order of removal:
'The order of suspension made against, the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the enquiry an order of dismissal by way of penalty had been passed against the appellant. With that order, the order of suspension lapsed.
The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an. order of suspension which did not exist.'
8. In that case, the learned Attorney-General had advanced the argument that the cancellation of the order of removal did not affect the suspension order, which was passed earlier, and that it only restored the position which existed prior to it. The argument was not accepted. It appears to us that the reasoning on which the learned Attorney-General's contention was repelled applies equally. to a case where the order of removal is passed for reasons not connected with the departmental en-quiry.
The effect of the termination of the service of an employee is that the relationship of master and servant ceases to exist, and thereafter no departmental enquiry can be held to punish the employee. The termination may be for any cause; the order of suspension must, by its very nature, come to an end. The effect thus is the same, whether the termination of the service is in consequence of the enquiry or otherwise. On the reasoning of the decision of the Supreme Court in Om Prakash Gupta's case, (S) AIR 1955 SC 600, we must, therefore, hold that the order of suspension merged into the order of removal, and that it could not revive when the latter order was cancelled.
9. Next, we pass on to the second point raised by Shri Inamdar, attacking the prospective effect of the order. He says that sufficient reasons as required by the Madhya Bharat Civil Service Rules did not exist to justify the suspension,, which could1 only be done for one of the reasons given therein. In the first place, we must say that this point was not specifically raised in the petition, and hence-the full facts are not before us. Secondly, the return filed by the Government shows that the petitioner is suspected of embezzlement of moneys. This averment must be accepted for the purpose of this petition.
Now, if an officer is suspected of such conduct, it is clearly in the public interest not to allow him to hold the charge of his office pending the departmental enquiry. Thus the suspension was amply justified. Further, this is a matter within the discretion of the Government, and the order of the Government cannot normally be interfered with.
10. We may also add that, according to the view which prevailed in the Madhya Bharat High Court consistently, the Madhya Bharal Civil Service Rules were merely in the nature of administrative directions. This is what was observed on this pointin Prem Biharilal v. State of M. B., AIR 1954 Madh-B 49:
'It was further observed in that case that the Madhya Bharat Civil Services (Punishment and Appeal) Rules, 1950 contain merely administrative rules for the guidance of the officers of the Government in the imposition of penalties and in the conduct of departmental inquiries against Government servants and that the dismissal, removal or reduction in rank of a civil servant in violation of these rules would not by itself entitle himself to come to the High Court but would leave him to appeal to the administrative authorities and that if in the termination of civil servants' employment there is no contravention of Article 311, the High Court would have no jurisdiction to quash the order terminating the service.'
This view was also taken in an earlier Madhya Bharat case: Mrs Lilawati Mutatkar v. State of M. B., AIR 1952 Madh-B 105. Thus, it has consistently been held that the Rules are only for the guidance of the officers of the Government and a breach of them is not by itself sufficient ground for interference. Accordingly, we must hold that the suspension of the petitioner cannot be attacked even if the officers did not fully follow the instructions,
11. It is also contended on behalf of the petitioner that the order of suspension is by way of punishment and should therefore be set aside. An order of suspension pending a departmental enquiry is not punishment and is not hit by the provisions of Article 311 of the Constitution. This view has been taken in a large number of cases, but we need refer only to Prem Biharilal's case, AIR 1954 Madh-B 49, (supra), where, after discussing the authorities on the point, the learned Judges arrived at that conclusion.
12. The last contention against the suspension order is that it is mala fide and no departmental enquiry is, in fact, pending. On this point, we must accept the affidavit filed on behalf of the State Government that the enquiry is pending and an auditor is enquiring into embezzlements made by the petitioner. The matter is likely to take sometime. Merely because there has been some delay, we are not prepared to hold that the action of the Government is mala fide or that no departmental enquiry is pending,
13. We now pass on to the question whether the petitioner can claim to prohibit the Government from acting on the reports of the previous enquiring officers. We need only state that this matter was specifically raised by the petitioner in his earlier petition decided by this Court on 8-10-1957. He had prayed for a writ of prohibition against the Government 'not to pass any order on the enquiry that was conducted against him by Shri Narayan Singh, Collector, Indore'. That request was considered and rejected. It is not now open to the petitioner to make the same request, and thus ask us to reconsider the earlier decision.
14. The petitioner has prayed that we should allow him arrears of pay with interest. In our opinion, we can only quash the order to the extent we find it illegal but cannot grant a decree for money in these proceedings. Shri Inamdar relies upon the decision in Jamini Kanta v. Union of India, (S) AIR 1955 Cal 45, where arrears of pay were allowed, but that was a case in which a regular civil suit for recovery of arrears had been filed. Shri Inamdar has not been able to show us any decision in which arrears of pay have been allowed in a petition under Article 226 of the Constitution, and we do not think that this can be done.
The matter raises complicated questions of fact regarding accounts of what is due and what has been paid. Further, Shri S. B. Sen points out that the Government would be entitled to set-off amounts which the petitioner may have earned during the period, and part of the claim can also be resisted on the ground of limitation. It is obvious that the matter requires elaborate pleadings on questions of facts and can best be determined in a regular suit only. We, therefore, refuse to grant any arrears of pay in these proceedings,
15. In view of what we have said, the impugned order is invalid in so far as it gives retrospective effect to suspension. Accordingly the petition is allowed in part. The order dated 5-8-1958, in so far as it purports to place the petitioner under suspension for any period prior to that date is quashed. In view of the fact that the success is divided, we make no order as to costs.
16. The amount of security for costs deposited by the petitioner shall be returned to him.