H.R. Krishnan, J.
1. This and the application numbered 16 of 1957 are petitions by Sub-Inspectors of Excise dismissed from service by the orders of the State Government in similar circumstances. They had been dismissed after inquiry and punishment notices, by the Commissioner of Excise. Following a High Court judgment in what Government considered a comparable case, the order of dismissal by the Commissioner was set aside, the officer formally reinstated and simultaneously suspended, served wjth a fresh punishment notice, and now dismissed by the Government itself.
2. In each of them certain general arguments have been made, applicable, from the petitioner's view point, to the other case as well. These have been considered in the judgments of the respective petitions in which the particular grounds have been especially emphasized.
3. The prayer, under Article 226 of the Constitution, is for a writ on the State Government, directing it to reinstate the petitioner in his post of Sub-Inspector of Excise, and to give the consequential reliefs by way of full pay since his dismissal the allegation being that the order of dismissal passed on 29-10-56 is illegal for want of compliance with the Civil Service (Punishment and Appeal) Rules of 1950, which incorporate the principles of Article 311 and other reasons.
4. It may be noted that the petitioner was proceeded against on several heads of charges contained in two charge-sheets, and after inquiry by the Assistant Commissioner of Excise, and the usual punishment notices, was dismissed by the order of the Commissioner of Excise on 21-1-56. Sometime later, the High Court held that another Excise Officer, named Shri Abid Hussain, should not have been dismissed by the Excise Commissioner, but could have been dismissed only by the Government on the impression that this officer's position was analogous to that of Abid Hussain, the Government got the order of dismissal set aside and the officer accordingly reinstated. Simultaneously, that is, on the same day (24-2-56) and at the same hour, another order was passed suspending the petitioner with effect from the date of the original suspension namely 14-4-54.
I shall consider separately, the propriety or otherwise of the suspension order being made retrospective; it need only be noted here that the setting aside of the earlier dismissal order by the Commissioner, the reinstatement, and the suspension arc, as it were one order. Soon after, another notice to show cause on the findings already made, served on him; he had no new grounds to make, nor did he ask leave to lead any further evidence, but argued that the whole proceeding was illegal. The Government now recorded the order of dismissal adopting the same report, and on the same grounds as were the basis of dismissal by the Commissioner.
5. A large number of grounds have been canvassed with great ability and at very considerable length, but the material issues for decision are not very complicated, they being:
1. Whether the setting aside of the order of dismissal and the reinstatement in this case had the effect of quashing of the entire proceedings and the cancellation of the old charge-sheet and exoneration from all those charges;
2. If it had not, whether a new punishment notice alone was sufficient or a fresh charge-sheet and a fresh inquiry with all its incidents were necessary.
3. Whether, as a fact, the petitineor wanted a fresh inquiry and leave to adduce fresh evidence and that was refused.
4. Whether in the order of dismissal communicated to the petitioner it was necessary to give all the grounds; and
(5) Whether the original inquiry has been held in accordance with the Rules.
Point No. 1.
6. This is really a question of fact. The reinstatement here is not reinstatement in the sense of exoneration, but it is a formal reinstatement because the Government felt, in view of the decision of a High Court, that the authority who dismissed the applicant was not the proper one and that the dismissal should be by the Government itself. It was not going to exonerate him or drop the matter, The petitioner could have no doubt about it, because he was simultaneously suspended, and further within a few weeks, he was served with a fresh punishment notice, to show cause why Government should not dismiss him on the basis of the Assistant Commissioner inquiry report on the charge-sheets, copies of which report had already been furnished to the petitioner.
The petitioner had no doubt appealed to Government from the order of dismissal passed by the Commissioner of Excise, but that appeal was dismissed and the petitioner had been informed of that also. This reinstatement was not in course of that appeal. Certainly, there are circumstances when in appeal or otherwise, Government exonerates the officer of the charges, quashes or drops the charges and reinstates him. In that event he cannot be punished again; but this is. not one of them. Here the reinstatement was made as a consequence of the setting aside of the order of dismissal alone, not because the inquiry had been irregular, or the findings were not accepted, but because the dismissal was thought to be by an authority that was really not competent to order it. That is why the applicant was simultaneously suspended, and was Supplied with a new punishment notice with full particulars of the charges and the reports. Thus there is no force in this giound.
Points Nos. 2 and 3.
7. The case was taken up at this stage where the Government has accepted the inquiry report, and it is ripe to issue a punishment notice. Whatever happened upon and after the issue of the punishment notice by the Commissioner of Excise has been set aside for want of jurisdiction as the Government conceived it. It is certainly open to the officer to show cause against a particular form of punishment proposed, and in addition (as decided in Khem Chand v. Union of India AIR 1958 SC 300 and followed in State of Madhya Pradesh v. Ladli Saran Sinha, 1958 Jab LJ 446: (AIR 1958 Madh-Pra 326)) to assail the merits of the findings on charges as well. It would also be reasonable, for the punishing authority to give due consideration to any fresh grounds of argument at this stage, and, where sufficient grounds are made out to its satisfaction, to allow the officer to adduce further defence evidence, and even to order a supplementary enquiry. But this would be where the circumstances of the particular case justify it.
There is, however, no justification for deriving from the Supreme Court judgment a principle, such as is canvassed before me to the effect that the officer is entitled as of right to demand an inquiry into the charges de novo, whenever a punishment notice is given. In fact, if we accepted this, the results would be preposterous and no proceedings can ever end. Every finding on a charge should be followed by a punishment notice before any action is taken. If every punishment notice becomes the occasion for a demand as of right for inquiry de novo, then there will be a de novo inquiry, again another punishment notice, again another de novo inquiry and so on ad infinitum, however repeatedly the officer concerned chooses to demand.
The punishment notice should be given by an authority competent to punish and has accepted the findings of the inquiry (sic). The result is that the officer can show cause against a particular punish-ment, can assail in argument the facts found against him, and can further ask for a supplementary inquiry, only if sufficient grounds are showed such as a material omission on the part of the inquiring authority, or a condoned omission on the part of the officer himself. Subject to this there is nothing wrong in the original charge-sheet and the original inquiry report, being acted upon by the new punishing authority.
8. In reply to Government's punishment notice the applicant has given an argument, and has not expressly asked either permission to adduce in further evidence any documents or to examine any Witness, on acount of there having been such and such omission during the inquiry before the Assistant Commissioner. He has before us made an allegation that after this punishment notice he wanted leave to examine the file and see some documents and that it was refused. This is denied by the State. Actually he has no receipt, there is no such application within the file. I have no hesitation in holding this allegation to be baseless.
Point No. 5.
9. The question therefore is whether the inquiry by the Assistant Commissioner has been held in violation of the Rules which incorporate the principles contained in Article 311 of the Constitution, During argument he made out that 'no opportunity to cross-examine and adduce his evidence' had been afforded to him. An opportunity to cross-examine or to adduce evidence is not something that the inquiring authority can tie around the neck of the officer proceeded against; but it is an occasion that arises, and is to be availed of. The usual procedure is that the charge-sheet is served and the cause. if any, is taken. The evidence if documentary is communicated to the person proceeded against and if oral the witnesses of the department are examined before him. If he is not present he is asked, if he would like to be heard in person. He is then invited to cross-examine, and after it is over, to file his own documentary evidence and call his witnesses, if any, and give his argument.
10. In the present case there were 4 main counts. In regard to three of them the department did not examine any witnesses but produced only documents. In regard to the fourth, that is the matter relating to Ramcharanlal, oral evidence was adduced in presence of the petitioner and the petitioner was expressly invited to cross-examine; but he would not. Nor did he want to bring his own evidence. In this, as in other matters arising in this proceeding, the petitioner seems to have always been creating difficulties for himself, under a perverse notion that if he picked up arguments with the inquiring authority he may have some grounds for making allegation in future.
11. Out of the remaining three charges, the first was the use of abusive language to his superiors. He himself admitted this, and did not want either to cross-examine anybody, or to call witnesses of his own. He stated that, in the heat of the moment he was justified but the Assistant Commissioner thought otherwise. The second count was that in the transport of excisable goods from a region called Pohri to the Shivpuri district, the petitioner did not ask for permits and licences. This he admitted, but explained that for excise purposes Pohri 'was treated as part of Shivpuri district'. The department did not call any oral evidence, but proceeded on the petitioner's own admission.
The petitioner for his part did not adduce any evidence, did not even state that there was any order by Government or by the Commissioner, or by anybody, to the effect that Pohri should be treated as part of Shivpuri district. In argument before us this ground was taken with hopeless inconsistency. We were prepared to look into whether or not Pohri was a part of Shivpuri for purposes of excise. We were told that there was an order by Government, and then that there was one by the Commissioner, and then it came down to 'an oral order by some superior officer'. Any way, the petitioner did not want to adduce evidence on this point.
12. The third was a charge based on a written seizure report signed by the petitioner himself, that he had seized 190 maunds (i.e.) a full lorry load of Mahua flowers, and had not accounted for it. Shri J. P. Gupta, counsel for the petitioner was shown this report; he argued that it was a mistake, and the petitioner had not at all seized any mahua and had signed a printed form without knowing what it was. But this is not the explanation given by the petitioner himself in his cause. He says,
'when the goods had not at all been seized, no question arose where they are and to whom they have been given. On 25-5-1953 Sawandas has noted in his register that be purchased 220 maunds of mahua from Shanker Lal and this quantity included 190 maunds also.'
The real question was what had happened to the quantity that the petitioner himself wrote that he had seized. For this he gave no reply at all. As for the 'opportunity' he did not ask at any time either for witnesses to be called, or for his documentary evidence to be taken in this regard, or in regard to any of the charges. Thus, I find that during the inquiry before the Asst. Commissioner the petitioner was given every opportunity, and if he did not adduce evidence of his own in defence, or in the case of Ram Charan Lall did not cross-examine the witnesses, he has only to thank himself. As already noted 3 out of the 4 charges are such that it is difficult to imagine what evidence he could have adduced.
Point No. 4.
13. It is urged that in the letter communicating the order of dismissal the grounds are not given; and therefore it should be set aside; I certainly fail to see any force in it. The letter communicating the dismissal is as it were, the decree, the inquiring authority's report as adopted by the punishing authority is, as it were, the judgment. The reasons will be contained in the judgment and the operative direction would be given in the decree. I find no irregularity in it.
14. Though it is of academic interest only in the present case, the suspension order calls for one comment. Shri Mongre appearing for the State has argued that when a final order of dismissal is made, the suspension order is, as it were absorbed into it, and, 'therefore, ceases to exist; Om Prakash v. State of U. P. (S) AIR 1955 SC 600. This is, as it should be, the position in the vast majority of cases, because almost invariably a suspension order never contains anything going outside, either in scope or in time, the contents of the subsequent order of dismissal. In this case, however, it does go beyond the dismissal order. The petitioner had been originally suspended on 12-4-54, reinstated on 26-2-56. Obviously the officer could not be dismissed with effect from 21-1-55.
Therefore, he could not have been suspended, as indeed the suspension order states, with effect from an earlier date, that is 12-4-1954, but could have been suspended only with effect from that date namely 26-2-56. In principle, therefore, the suspension order is wrong to the extent of its retrospective effect.
14a. However, the dismissal was operative from a later date that is 25-10-56 ('from the date of this order' No. 52347 S.R. signed by Durga Prasad by order of Government). Thus, the officer has suffered no consequence at all from the suspension order being retrospective, because he was deemed to have been in service till 25-10-56, a date later than one from which he could have been dismissed, if the Government had so desired. Therefore, while disapproving of the form of the suspension order we find that, as matters: took shape, it has given rise to no grievance;
15. In the result, the application is dismissed. It has been quite groundless. Costs to the non-applicant and hearing fee of Rs. fifty only.
A.H. Khan, J.
16. I agree with my learned brother that in dismissing the petitioner, the Government has observed the formalities prescribed by Article 311 of the Constitution of India. But I should like to add a few words in respect of the order of Government, suspending the petitioner with retrospective effect.
17. In this case, the petitioner was first of all suspended on 12-4-54 and after an enquiry against him and after giving him a show cause notice of punishment, he was dismissed by the Commissioner of Excise on 21-1-55.
Thereafter, it was realised that the order of dismissal was erroneous, because it was passed by an authority subordinate to that by which he was appointed. To obviate this mistake the petitioner was reinstated on 24-2-56 by the Rajpramukh of the Madhya Bharat State, and, the order of his dismissal was set aside. But on the same day i.e. on 24-2-56, he was served with an order suspending him with effect from 12-4-54. In other words, the petitioner was ordered to be suspended with retrospective effect. The short question is: Can the Government suspend a civil servant with retrospective effect? My answer is no.
18. Suspension of a servant means temporary stopping or cessation of work by the servant. Naturally this cessation of work will be in the future, because whatever work has been performed by the servant in the past, he cannot be asked to stop that which he has already done. Like the proverbial moving finger, which writes and having writ moves on, and no wit can lure it back to cancel half a fine, the service which is rendered in the past cannot be undone by an executive fiat. This is what a suspension order with retrospective effect seeks to accomplish. I, therefore, hold that a suspension order is effective from the day it is passed for the future, but it is ineffective ex post facto.
This point was considered in Hemanta Kumar Bhattacharjee v. S. N. Mukherjee, AIR 1954 Cal 340 and Chakravarti C. J. observed that 'the basic idea underlying the root word 'suspend' and all its derivatives is that person in the service of the Central Government while holding an office and performing its functions or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position or privilege. He is intercepted in the exercise of his functions or his enjoyment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such being the concept of a suspension order, suspension with retrospective effect is a contradiction in terms. There is thus both reason and authority that suspension with retrospective effect is meaningless.
19. In the instant case the applicant was reinstated on 24-2-56. An order of suspension passedagainst him on 24-2-56, saying that the petitionerwas suspended from 12-4-54 is bad so far it purports to suspend the petitioner from 12-4-54. Thepetitioner is held entitled to full pay till 24-2-56and that his suspension order would be effectivefrom 24-2-56 for the future alone.