1. This appeal has been remanded by the Supreme Court for hearing on the limited question whether the order of suspension passed on the appellant on 28-7-49 by the State Government is invalid and ultra vires and if the appellant is entitled to any relief on this count.
2. The appellant was appointed as a Sub-Deputy Collector on 11-12-39 by the Government of Orissa. He was promoted to the rank of a Deputy Collector on 8-2-46 and was posted as the Sub-Divisional Officer & Special Assistant Agent on 4-5-48 at Koraput. On 18-10-48 he was transferred to Sundargarh and held the post of a Sub-Divisional Officer. He was confirmed as Deputy Collector with effect from 1-1-1949.
3. A case under Section 406, I. P. C. was pending in his Court against one Hitakrushna Sahu. It was alleged that the plaintiff officer demanded bribe from one Gopal Sahu, uncle of Hatakrushna. On 27-7-49, the Additional District Magistrate, Sundargarh decided to lay a trap against the plaintiff and secured the assistance of Gopal Sahu for the purpose. Gopal was given two marked hundred-rupee currency notes to be delivered to the plaintiff. The trap was laid on the night of 27-7-49. As soon as the money was handed over by Gopal to the plaintiff, the Additional District Magistrate and some police officers entered the house of the appellant and seized the two marked hundred-rupee notes along with a large sum of money found from different places in the house of the plaintiff. A sum of Rs. 1,074 was found from an open drawer in a room of the house and Rs. 6,600 in shape of currency notes were found in an almirah. Immediately thereafter the appellant was put under suspension on 28-7-49. A case under Section 161 I. P. C. (C. R. Case No. 1/268/115 of 1949) was started against the appellant and the appellant was arrested on 29-7-49. In the said C. R. Case the appellant was convicted by the trial court, but on appeal, the learned Sessions Judge by his judgment dated 24-5-50 acquitted the appellant holding that
'the evidence adduced by the prosecution did not completely exclude the possibility of the theory of planting, though there was enough room for suspicion against the conduct of the appellant.'
4. Another case under Section 5 (2) of the Prevention of Corruption Act (II of 1947) was also started against the appellant mainly on the basis of the recovery of a cash of Rs. 7,671 from the house of the plaintiff, but for insufficient evidence final report was submitted by the Police on 9-6-1950 and ultimately this sum was returned to the plaintiff. After termination of the aforesaid two cases, the Government started departmental proceedings (Ext. 12) on 6-12-1950 with eight charges framed against him. The charges included, amongst others, acceptance of illegal gratification as also recovery of large sums of money amounting to Rs. 7,674 made on search of the house of the appellant on 27-9-1949. The plaintiff submitted his explanation. The Government directed the District Magistrate, Sundargarh, to make a departmental enquiry in respect of the various charges levelled against the officer. In the said departmental enquiry, some witnesses were examined, cross-examined and the officer was also assisted by some lawyers. On 5-12-62 the District Magistrate submitted his findings on all the charges. Government though differed from the Dt. Magistrate in respect of his findings on some of the charges, they tentatively decided to dismiss the plaintiff from Government Service, Accordingly on 19-2-53 the Government served a notice on him under Article 311(2) of the Constitution calling upon him to show cause why he would not be dismissed from service. The plaintiff submitted his explanation which was not accepted by the Government. After consultation with the Public Service Commission, the Government discharged the plaintiff from service on 27-2-54. Thereafter the plaintiff made an appeal to the Governor but the same was rejected on 3-1-55. Thereafter the plaintiff-appellant filed the present suit now under appeal on 4-1-56.
5. In the said suit, the plaintiff prayed for a declaration; (a) that the Departmental proceedings, the order of suspension and the order of discharge are illegal and void: (b) that he still continued to be in service which has not been validly terminated and that he is entitled to his scale of pay along with all increments to which he would have been entitled but for the aforesaid illegal order of suspension, and (c) that the departmental proceedings are mala fide and without any legal effect. He claimed all his arrears of salary with usual increments from 29-7-49 the date following the order of suspension till the date of the suit, minus the sum received by him by way of subsistence allowance. He also claimed a sum of Rs. 5,000 by way of damage for expenses incurred by him regarding the criminal case and the departmental enquiries and a sum of Rs, 10,000 for his mental agony and loss of prestige etc. He thus made a total claim for Rs. 40,354-6-0 on all the above heads.
6. The State resisted the claim of the plaintiff and supported the order of suspension and discharge passed on the plaintiff. The learned Subordinate Judge who heard the suit framed the following issues :--
(1) Is the order of suspension of the plaintiff valid and legal Can the plaintiff be deemed to have been on duty throughout notwithstanding such order of suspension ?
(2) Is the order of discharge passed against the plaintiff valid and tenable ?
(3) Are the orders of suspension and discharge mala fide ?
(4) Is the plaintiff entitled to any damage, as claimed in the suit If so, to what extent ?
(5) Is the suit maintainable in the present form ?
(6) Is the claim barred by limitation ?
(7) To what relief, if any, is the plaintiff entitled
The learned Subordinate Judge answered all the issues in favour of the plaintiff. He declared the order of suspension and discharge of the plaintiff as void and illegal and that the plaintiff shall be deemed to be on duty from 28-7-49 (the date of suspension) till the date of filing of the suit and continuing as such thereafter so as to be entitled to his scale of pay and usual increments to which he would have been ordinarily entitled to but for the impugned order. Of the amounts claimed by the plaintiff he had rejected the claim of Rs. 5,000 said to have been incurred by the plaintiff on account of expenses in the Criminal case and departmental proceedings, on the ground that the plaintiff had not adduced any evidence in support of such a claim. Except for this item of claim he allowed the other item of his claim amounting in all to Rs. 35,354-6-0 from the defendant. He further directed interest to be paid on the decretal amount at the rate of 6 per cent per annum.
7. Against the decision of the Subordinate Judge the State preferred an appeal (First Appeal No. 59 of 1958) before this Court. A Division Bench of this Court by its judgment dated 18-1-62 upheld the order of discharge and set aside the order of the Subordinate Judge and dismissed the plaintiff's suit. At the time of the disposal of the First Appeal by this Court no specific finding regarding the validity of the order of suspension of the plaintiff had been recorded. The plaintiff carried an appeal to the Supreme Court against the aforesaid decision of this Court. The Supreme Court upheld the decision of this Court that the order of discharge made by the State Government is not illegal or ultra vires. But as there was no specific finding given by the High Court regarding the validity of the order of suspension and if the plaintiff was entitled to any relief on this account, the Supreme Court by their order dated 25-2-1965 passed in the Civil Appeal No. 547 of 1963 remanded the case to the High Court in the following terms for rehearing of the appeal on the limited question :
'Whether the order of suspension dated 28-7-49 made by the Government is invalid and ultra vires, and whether the appellant is entitled to any relief on this account. If the High Court comes to the finding that the order of suspension is ultra vires it should proceed to grant a proper decree to the appellant. If on the contrary the High Court should and that the order of suspension is not defective in law, it should make an order dismissing the suit.'
Accordingly the appeal is now reheard after the aforesaid order of remand passed by the Supreme Court.
8. The main question for consideration therefore is whether the order of suspension dated 28-7-49 made by the State Government is invalid and ultra vires and whether the appellant is entitled to any relief on this account. As will appear from the issues hereinbefore stated that the issue regarding the validity of the order of suspension was raised in issues Nos. 1 and 4. The case of the plaintiff in plaint paragraph 21 was that the order of suspension was not made by the authority appointing him to Government service and as such the same was ultra vires and invalid. The State in paragraph 9 of their written statement refuted the correctness of the allegation in paragraph 21 of the plaint saying that the order of suspension was legal and valid and in accordance with the law.
9. The order of suspension (Ext. 7) which was communicated by the District Magistrate to the plaintiff on 28-7-49 is quoted below :
Sri Saila Behari Chatterji. S. D. O. Sadar
As per orders of the Chief Secretary to the Government of Orissa conveyed by wireless, dated 28-7-49 (copy enclosed), you are hereby placed immediately under suspension and directed to make over charge of your duties as S. D. O. Sadar, Sundargarh, to Sri Gouri Sankar Behera, Temporary Deputy Magistrate and Deputy Collector, Sundargarh. Detailed charges against will follow.
Sd. Illegible 28-7-49
District Magistrate, Sundargarh'
Copy of Wireless message dated 28-7-49 from the Chief Secretary to the Government of Orissa, Cuttack, to the District Magistrate, Sundargarh, referred to above was as follows :
'SUSPEND SRI SAILA BEHARI CHATTERJI WITH IMMEDIATE EFFECT AND MAKE TEMPORARY LOCAL ARRANGEMENT OFFICIATING S. D. O. UNTIL CONVENIENT MAKE THE POSTING'
It is not the case of the State that this order of suspension was passed by or under orders of the Governor. The contention of the State is that the Chief Secretary was fully competent to pass an order of suspension and it is he who passed the said order. The learned Subordinate Judge, however held that the Governor alone is competent to pass the order of suspension and not the Chief Secretary. The argument that the Governor alone is competent to pass the order of suspension is based on the provision of Section 17 of the Orissa General Clauses Act (Orissa Act I of 1937), corresponding to Section 16 of the Central General Clauses Act of 1897. Section 17 lays down that where by any Orissa Act a power to make any appointment is conferred, then unless a different intention appears, the authorities having power to make the appointment, shall also have the power to suspend or dismiss any person appointed by in exercise of that power.
10. There is no doubt that the plaintiff was suspended the day following the search of his house where the marked currency notes and a large sum of money were found and before he was arrested and the departmental proceedings were started. Thus the order of suspension at that stage was not imposed by way of punishment but must be said to be of a precautionary or regulatory nature. In decision of the Supreme Court reported in (S) AIR 1957 SC 82 Lakshmi Devi Sugar Mills & Co. Ltd. v. Ram Sarup, it was held that suspension of workers pending enquiry is not a punishment. Such orders of suspension are meant only as security measures or precautionary ones taken in the interest of the Industry itself. These measures are sometimes called for immediately after the incident and any delay, however small, might defeat the purpose for which such measures are intended. Such suspension, however, would not be a punishment itself. Though that was a case that arose out of an industrial dispute, it clearly lays down the law that the order of suspension by itself is not a punishment, but is passed as a precautionary measure.
11. In a case relating to the order of suspension of a civil servant also the Supreme Court maintained the same distinction; R.P. Kapur v. Union of India, reported in AIR 1964 SC 787. It was held in that case that on general principles the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending a departmental enquiry or a criminal proceeding. This may be called an interim suspension, after which the Government may proceed to hold the departmental enquiry and on his being found guilty order suspension as a punishment, if the rules so permit. This will be suspension as a penalty.
12. On the facts of this case, there is no doubt that the order of suspension in question, was passed not as a penalty, but as an interim measure pending some enquiries. We shall later on see if the order of suspension was in relation to a departmental enquiry or a criminal proceeding.
13. No doubt when the order of suspension is imposed as a penalty, the provision of Section 17 is attracted and the authority entitled to appoint the public servant would alone be entitled to suspend him. There is, however, no specific provision as to who is the authority, competent to suspend, when the suspension order is made as an interim or precautionary measure. There is no express provision in the Civil Service (Classification, Control and Appeal) Rules as to the authority to pass an interim order of suspension pending an enquiry.
14. It is urged on behalf of the State that the power to pass an interim order of suspension impliedly vests on the superior authority, like the Chief Secretary as in the case, though that superior authority may not be the appointing authority within the meaning of Section 17 of the Orissa General Clauses Act. In support of the contention, reliance was placed on a Division Bench decision of this Court reported in ILR (1962) Cut 222 Sribatsa Karmi v. District Magistrate, Dhenkanal. There the question was whether in the absence of any provision in the Orissa Grama Panchayat Act or the rules made thereunder, the Dt. Magistrate can place a Sarpanch under suspension. Following a decision of the Allahabad High Court reported in AIR 1952 All 681 Badri Pra-sad v. President Dist. Board, Mirzapur, it was held that the power to pass an interim order of suspension may be impliedly held to have been conferred on the authority even though that authority may not have the power to inflict any punishment on the person concerned. The District Magistrate who exercises a general power of control and supervision over the Grama Panchayats has also the power to pass interim order of suspension.
In a case reported in (S) AIR 1957 SC 246, Md. Ghouse v. State of Andhra Pradesh the fact was that a member of the Provincial Judicial Service in respect of whom the Slate is appointing and the dismissing authority was suspended by the High Court in connection with certain proceedings against him. Their Lordships observed that the order passed by the High Court was merely one of suspension pending final orders by the Government and such an order is neither one of dismissal nor removal from service. No doubt, under Rule 13 of the Madras Civil Service (Classification Control and Appeal) Rules the Madras High. Court may impose a suspension order pending: enquiry, but this was taken only as an additional ground in support of such order of suspension as will appear from the discussion in paragraph 8 of the judgment. This observation also lends support to the contention that a Government servant can be placed under suspension by an authority other than the appointing authority of course when the suspension is not a punitive one. It is nobody's case that the order passed on the plaintiff in this case was imposed by way of a punishment.
There are instances where such suspensions were made by an authority other than the appointing authority. In a case reported in AIR 1962 SC 1334 Devendra Pratap v. State of Uttar Pradesh the Collector suspended an Inspector--though he was not the appointing authority. No doubt the question whether he had such power of suspension did not directly arise in that case.
In a case reported in AIR 1953 Orissa 329 Dandapani v. State of Orissa a Sub-Registrar appointed by the State Government was placed under suspension by the Dt. Magistrate. The Court upheld the order of suspension and held that it was not a punishment. It was argued that the Chief Secretary who exercises supervisory power and control on the work of the plaintiff as a Deputy Collector was entitled to pass such an order of suspension. It was also argued that under the 'Rules of Business' framed under Section 59(3) of the Government of India Act, 1935, which was in force at the relevant period, the Chief Secretary was vested with the general powers so as to pass the order of suspension on behalf of the Government as well as the Governor. It is clear from the rules of business that the Home Department was in charge of 'appointment' and the plaintiff was under the administrative control of the Department. It was also shown from the records that the Chief Secretary was the Secretary for Home on the relevant date. In the plaint the specific case of the plaintiff was that the order of suspension was not passed by the Governor. The State's case was that it was the Chief Secretary who passed the said order and was competent to do so. In fact, the learned Subordinate Judge in clear terms gave a finding to that effect. He said,
'The wireless quoted in Ext. 7 clearly reveals that the Chief Secretary had ordered the suspension and authorised the District Magistrate to implement the same.'
He, however, held the order of suspension to be invalid on the ground that the Governor did not pass the said order. It is however clearly borne out by the authorities cited above that the Chief Secretary is quite competent to pass the interim order of suspension.
15. Notwithstanding the allegation in the plaint itself, and the clear finding of the learned Subordinate Judge to the effect that the wireless message, Ext. 7 reveals that the Chief Secretary passed the order of suspension, it is now urged that there is nothing on record to show that the Chief Secretary did in fact pass the said order of suspension. But it appears that Ext. 7 was admitted in evidence and was marked without any objection by the plaintiff and thus the State was not called upon to adduce any evidence in strict proof of its contents. The whole contention before the learned Subordinate Judge, in relation to paragraph 21 of the plaint, was that the impugned order of suspension was not passed by the Governor. The State admittedly did not produce any papers at that stage of the trial to show it the order was passed by the Governor. For non-production of those papers relating to the same order by the Governor, the Court said that he was entitled to draw an adverse Inference on that count against the State. He expressly stated so in paragraphs 53 and 54 of his judgment. But the non-production of any paper is not material for the determination of the question whether the Chief Secretary passed the said order. In fact that was not challenged at all before the trial Court. On behalf of the State it was urged that Ext. 7 being an official communication, the Court is entitled to presume that the order contained in the said document was in fact passed by the Chief Secretary. We have already seen that in Ext. 7 the District Magistrate while communicating the order of suspension to the plaintiff that he was placed under suspension as per the order of the Chief Secretary conveyed by a wireless message dated 28-7-1949, also enclosed a copy of the said message, which shows that the plaintiff was directed to be placed under suspension with immediate effect. The question is whether in the circumstances, a presumption under Section 114(e) of the Evidence Act can be drawn that the order conveyed under Ext. 7 was in fact passed by the Chief Secretary.
16. In a case reported in AIR 1963 SC 666 Tulsiram v. State of Uttar Pradesh a letter from the Under Secretary to the Government addressed to the District Magistrate intimating a sanction under Section 196-A Cr. P. C. was produced in proof of sanction accorded by the Governor to prosecute some persons. Their Lordships held that a presumption under Section 114 would arise that the sanction referred to therein had in fact been accorded and the official act of granting sanction was regularly performed. In that case the contents of the letter from the Under-Secretary to the District Magistrate communicating that the sanction was granted by the Governor were not challenged by the accused. That decision undoubtedly supports the contention that a legal presumption is permissible that in fact the Chief Secretary had passed the order of suspension. Moreover as observed by their Lordships in that case, had the point been raised in the trial court, the State would have been able to lead evidence to establish that the Chief Secretary had in fact passed the order.
17. It cannot also be disputed that the District Magistrate received the wireless message quoted in Ext. 7 from the Chief Secretary. under Section 88 of the Evidence Act, though the Court shall not make any presumption as to the person by whom such message was delivered for transmission, it may presume that the message corresponds with the message delivered for transmission at the office from which the message purports to be sent. We can however rely on other evidence in proof of the authorship of the message conveyed under Ext. 7.
In a case reported in (S) AIR 1957 SC 857 Mobarik Ali Ahmed v. State of Bombay, their Lordships held that it is true that under Section 88 there is a presumption only that the message received by the addressee corresponds with the message delivered for transmission at the office of origin and there is no presumption as to the person who delivered such message for transmission. But the proof of authorship of the message need not be direct and may be circumstantial. The contents of the message received in the context of the chain of correspondence may well furnish proof of authorship of the message at the despatching end. Thus other evidence can be relied upon in proof of authorship of Ext. 7. Ext. 12 is the proceeding drawn up against the plaintiff by the Chief Secretary on 6-12-50. In that proceeding he has expressly referred to the plaintiff as the Officer now under suspension. No doubt, there is nothing in Ext. 12 to show that the Chief Secretary passed the order, though it sufficiently establishes that he was aware of the fact that the officer was under suspension. It is not the case of either of the parties that any other order except the order of suspension conveyed in Ext. 7 was passed by any other authority. In another document, such as Ext. 35/A which is a minute of the note submitted by the Chief Secretary to the Chief Minister, the Chief Secretary mentioned that the plaintiff had already been placed under suspension for a very long time. Thus in the context of the relative documents, such as Exts. 12 and 35/A and a number of other correspondences on the subject such as Exts. 13, 13/A, 13/B and 13/F as also Ext. 34, there is no room for doubt that it was the Chief Secretary who sent the wireless message to the District Magistrate directing suspension of the plaintiff.
18. A feeble submission was attempted to be made that the presumption regarding telegraph message under Section 88 of the Evidence Act has no application to wireless message. But now that wireless apparatus is being extensively used by Governments of countries in transmitting messages, it is conceived that the presumption under this Section will also apply to Radio message. (See the discussion on this point under Section 88 of Sarkar on Evidence 11th Ed.). In consideration of the factual and legal position it must therefore be held that it was the Chief Secretary who passed the order of suspension in question. I have already held that the Chief Secretary is competent to pass an order of suspension of the plaintiff, and as such the said order must be held to be valid.
19. It was next contended that assuming the order of suspension is a valid one, the said order related only to the criminal case and it automatically lapsed on 24-5-1950, the date on which the plaintiff' was acquitted after the order of conviction was set aside by the appellate Court. In this connection, it is urged that the plaintiff having been suspended on account of some criminal charges levelled against him, the order of suspension shall automatically lapse on 24-5-50 when the Criminal Proceeding ended in the acquittal of the plaintiff, by order of the Sessions Judge in appeal. Rule 93-A of the Orissa Service Code, Vol. I lays down that a Government servant against whom a criminal charge is pending shall be placed under suspension by the issue of specific orders to the effect during the period when he is not actually detained in custody or is undergoing imprisonment (i.e., while released On bail). Reliance was placed by the trial Court on a decision of this Court reported in AIR 1957 Orissa 51 Narayan v. State where Rule 93 and Rule 93-A were construed to mean that an interim order of suspension passed in connection with a criminal case will remain in force so long as the criminal proceeding is pending, and will expire after the termination of the criminal proceeding unless by a fresh order by a competent authority the order of suspension is kept alive. That case is clearly distinguishable. In that case the order of suspension was passed on account of the criminal case. It said . . ' . . is placed under suspension with effect from the date of his arrest by the Police.' and Rule 93 was noted in the memo sent to the accused.
20. In connection with a criminal case an officer may be suspended either under Rule 93 or 93-A of the Orissa Service Code. Under Rule 93 if a Government servant is arrested on a criminal charge he shall be considered to be under suspension for the period during which be is detained in custody or undergoes imprisonment. That rule obviously has no application to the present case, as the plaintiff was released on bail immediately after his arrest on 29-7-49. The plaintiff's house was searched on the night of 27-7-49 and he was placed under suspension on the following day and he was arrested thereafter on 29-7-49. There was no legal bar for the authorities to proceed against the plaintiff in a departmental enquiry on the basis of recoveries made from his house. That is clearly provided in the Orissa Service Code itself. That the Government had the power to start departmental proceedings even in respect of the very charges on which the plaintiff was acquitted in the criminal case, cannot be disputed. See AIR 1962 SC 1334.
21. In the suspension order there is absolutely no reference to the criminal charge or either to Rule 93 or 93-A of the Orissa Service Code as was in the case reported in AIR 1957 Orissa 51. In Ext. 7 itself it has been clearly mentioned that the charge will follow. It is manifest that the charges mentioned therein refer to the charges in relation to the departmental proceeding as the authorities might not, at that stage be sure of the result of any police investigation, which may or may not result in submission of a charge-sheet. In fact one of the two cases ended in a final report on 9-6-50. The mere fact that the departmental proceedings were drawn up on 6-12-50, sometime after the termination of the Criminal Proceedings, will not, in any way establish that the original order of suspension was solely in relation to a criminal proceeding. The departmental proceedings had nothing to do with the result of the criminal case. It is open to the authorities to start departmental proceedings irrespective of the result of the Criminal case. In case of a conviction, this may proceed in accordance with the proviso (a) to Article 311(2) of the Constitution and even in case of acquittals, it was competent for the authorities to take departmental action even in respect of the very charges covered in the criminal case. From the charges mentioned in Ext. 12 it is clear that they covered a number of items which were covered by the criminal case. There is nothing on record to sustain the contention that the Chief Secretary while passing the order of suspension wanted to keep the order confined only to the charges in the criminal case. No doubt, if it would have been apparent from the order of suspension that it solely related to the criminal case and not to any contemplated departmental proceeding, then certainly the authorities could (Sic) take advantage of that order after the expiry of the criminal proceedings, but should have passed a fresh order of suspension as laid down in AIR 1951 Orissa 51. That however is not the case here. On the other hand, the authorities treated that order (Ext. 7) as an order of suspension for the departmental proceeding. It may be that they might have treated the order as concerning both the criminal proceeding as well as the departmental action. Under the circumstances, the order of suspension passed on the plaintiff operated as a valid order from 28-7-1949 and continued to remain in force even after the termination of the criminal proceeding and until the date of discharge of the plaintiff from service. Thus, it must be held that the order of suspension is not ultra vires or invalid or in any way defective in law and it remained in force from 28-7-49 till the date of discharge of the plaintiff-appellant on 27-2-54.
22. When remanding the case for rehearing, the Supreme Court gave a specific direction that :
'If the High Court comes to the finding that the order of suspension is ultra vires, it should proceed to grant the proper decree to the appellant. If on the contrary, the High Court should find that the order of suspension is not defective in law, it should make an order dismissing the suit of the plaintiff. '
I have already held that the order of suspension is not defective in law and is a valid one and in view of that finding, the only order that could be passed, in accordance with the direction of the Supreme Court, is to dismiss the suit of the plaintiff.
23. In the result, the suit of the plaintiff is dismissed. Under the circumstances of the case the parties to bear their own costs throughout.
24. I agree that the suit by the plaintiff should be dismissed and that the parties should bear their own costs throughout.
25. It is not disputed that the order of suspension in question was passed not as a penalty but as a interim measure. Further there is no doubt as found by my learned brother that the authorities treated that order as an order of suspension for the departmental proceedings and therefore the submission made on behalf of the plaintiff that it was a suspension made in relation to the criminal proceedings cannot be accepted.
26. The controversy in the present case has been indeed raised before us by the plain tiff mainly on two grounds :
(i) That there is nothing on record to show that it was the Chief Secretary who passed the said order of suspension, and
(ii) That in any event the order of suspension not having been passed by the appointing authority namely the Governor the same is void and inoperative in law.
27. In my opinion, so far as the first point is concerned that is on the facts of this case hit by the rule of pleading; there is no averment made in the plaint to that effect. In the plaint the only case made out is that the order of suspension was not made by the Governor, and not that it was not made by the Chief Secretary. On the contrary, there is no (an ?) implied admission made therein that the order was made by the Chief Secretary. Rightly, therefore in the face of this admission it was not necessary any more for the State to prove that the order was passed by the Chief Secretary. In these circumstances it is now not open to the plaintiff to go back to the pleading and to assert for the first time in appeal that it was not an order passed by the Chief Secretary. It is true that there is no specific mention in the order made that it was passed by the Governor. But in my opinion this much in any case is clearly established, that at the relevant time the Chief Secretary under the Rules of Business framed under Section 59(3) of the Government of India Act, was vested with general powers so as to pass an order of suspension on behalf of the Government as well as the Governor. Therefore, that by itself is sufficient to establish that, in the eye of law, it was an order passed by the Governor who was the admitted appointing authority of the plaintiff. In that view of the matter it is not necessary to decide that in law an interim order of suspension can be passed not only by the appointing authority, but also by any superior authority (other than the appointing authority) as seems to have been held in some of the cases referred to by my learned brother.
28. Therefore as at present advised I do not express any concluded opinion on this aspect of the case, though, as already stated, I entirely agree with the conclusion arrived at by my learned brother.