Skip to content


Dandapani Gouda Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 35 of 1952
Judge
Reported inAIR1953Ori329
ActsRegistration Act, 1908 - Sections 13; Constitution of India - Article 311(2); Civil Services (Classification Control and Apopeal) Rules - Rule 55
AppellantDandapani Gouda
RespondentThe State of Orissa
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateAdv. General
Cases ReferredIndia v. I. M. Lall
Excerpt:
.....1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - clearly not the rank which he occupied at the date of suspension. it would appear, therefore, that the accused officer has got two opportunities of representing his case, once before the punishment proposed to be awarded against him is recommended by the enquiring officer and again before the punishment is actually awarded, before the appellate authority......dated 27-6-51 of the district registrar he was placed under suspension for alleged misconduct. the districtregistrar reported the same to the state govern-merit who passed orders on 2-8-52 approving of the action of the district registrar in suspending the petitioner and allowed him to draw the subsistence allowance according to rules, pending enquiry into his conduct.3. the affidavit filed by the opposite party discloses that there were a number of complaints against the petitioner by the villagers of patrapur about his own behaviour in his official capacity. in particular it was alleged by them that he was not staying in the village and was often running away from the station. there had been previous proceedings taken against the petitioner for neglect of duty and for absence from.....
Judgment:

Panigrahi, C.J.

1. This is an application under Article 226 of the Constitution, praying for a writ for quashing the order of suspension passed by the opposite party against the petitioner.

2. The petitioner is a probationary Sub-Registrar appointed by the State Government under Section 7, Registration Act. He joined his duties on 26-11-1947 and was working as Sub-Registrar at Patrapur from 14-5-48. By an order dated 27-6-51 of the District Registrar he was placed under suspension for alleged misconduct. The DistrictRegistrar reported the same to the State Govern-merit who passed orders on 2-8-52 approving of the action of the District Registrar in suspending the petitioner and allowed him to draw the subsistence allowance according to rules, pending enquiry into his conduct.

3. The affidavit filed by the opposite party discloses that there were a number of complaints against the petitioner by the villagers of Patrapur about his own behaviour in his official capacity. In particular it was alleged by them that he was not staying in the village and was often running away from the station. There had been previous proceedings taken against the petitioner for neglect of duty and for absence from headquarters. On 14-6-1951 the District Registrar received a complaint from one, Ladi Satyanarayana of Patrapur that the petitioner had left headquarters without permission, falsely asserting that the office was closed for two days, namely the 15th and 16th June, 1951. On receiving this report the District Registrar deputed the District Sub-Registrar to verify it and make an inspection of the petitioner's office. The District Sub-Registrar reached Patrapur at 8 P.M. on 14-6-51 and found the petitioner absent. He finished his enquiry and left Patrapur on the afternoon of 16th June. The Sub-Registrar had not returned till then. The petitioner was, therefore, charged with having absented himself without permission from the 14th to the 16th June & that he had unauthorizedly closed his office.

It was also found in the course of the enquiry that the petitioner had registered two documents at 9 P.M. on 13-6-1951, post-dating them to 14-6-51 and that he had made false entries in the registers. On receipt of the District Sub-Registrar's report on 19-6-51, the District Registrar reported the matter to the Inspector-General of Registration, recommending the dismissal of the petitioner as he was only a probationer and that it was not necessary to draw up any formal proceedings against him. While the orders of the Inspector-General of Registration were being awaited, on this recommendation, the petitioner sent a telegram on 26-6-51 to the effect that he had actually joined duty and had assumed charge the previous day but that the villagers were hostile and that he was apprehensive of an attack by them on his person and the records. On receipt of the telegram the District Registrar proceeded to the village on 27-5-51 to make a further enquiry into the truth or otherwise of this statement. He found the contents of the telegram to be absolutely false and immediately passed orders suspending the petitioner pending enquiry as a 'prima facie' case of misconduct had been made out against him. The suspension of the petitioner was necessary to enable the holding of a formal enquiry, and it was obviously not desirable that he should be permitted to continue in office while the enquiry was going on.

In the meanwhile, the state Government, acting on the report of the Inspector-General of Registration asked him to frame draft-charges against the petitioner. But before this was done the petitioner sent a letter of resignation on 28-8-51 which was forwarded by the District Registrar, recommending that it may be accepted and the proceedings dropped. The Inspector-General of Registration accepted the resignation of the petitioner on 29-12-51 and dropped the proceedings--subject to the approval of Government. The matter would have ended there but for the petitioner praying, by another letter dated 21-1-52, that his letter of resignation be treated as withdrawn. The Inspector-General accepted the withdrawal of resignation on 4-2-51. Government, however decided that the suspension should not be terminated and that the enquiry should be expedited. On 2-8-52 charges were framed against the petitioner and he was asked to submit his explanation, which he did on 2-9-52. On 2-8-52 Government also passed orders approving the action of the District Registrar suspending the petitioner and allowed him to draw subsistence allowance, according to rules, pending enquiry.

4. The present petition was filed on 18-7-52 just two weeks prior t to the framing of charges.

5. It is contended for the petitioner that the order of suspension passed against him contravenes the mandatory provisions of Article 311 of the Constitution, inasmuch as the

'petitioner while being reduced in rank was not given a reasonable opportunity of showing cause against any action proposed to be taken against him.'

Secondly, it was contended that the State Government alone is competent to suspend the petitioner, and that the order of suspension passed by the District Registrar is contrary to the statutory provisions and the rules contained in the Registration Manual.

6. The opposite party's case is that the order of suspension was passed in this case, not as a punishment but only for the period of the enquiry, and is to be in force during the pendency of the same, and that Article 311 cannot have any application. It is also further claimed that the District. Registrar is empowered to suspend the petitioner in anticipation of the sanction of Government by a departmental order passed by him, in order to maintain the proper working of the office.

7. I shall take up the second contention raised on behalf of the petitioner first. Section 6. Registration Act, vests the power of appointment of Registrars and Sub-Registrars on tne Provincial Government. It says :

'The Provincial Government may appoint such persons, whether public officers or not, as it thinks proper, to be Registrars of the several districts and to be sub-Registrars of the several sub-districts formed aforesaid, respectively.''

Section 12 of the Act says that when any Sub-Registrar is absent or when his office is temporarily vacant any person whom the Registrar of the district appoints in this behalf, shall be the sub-registrar during such absence until the vacancy is filled up. Section 13(1) provides that all appointments made Under Section 12 shall be reported to the Provincial Government by the Inspector-General. On a plain reading of this group of sections it appears to me that the District Registrar has the power to fill up temporary vacancies caused by the absence of a sub-Registrar pending approval of Government. Chapter V part II, Rule 21, Registration Manual, also indicated that the District Registrar is empowered to make arrangements during the temporary absence of a registering officer on duty, or casual leave. Part in deals with dismissal, re- moval, reduction and suspension. Rule 34 says that the Sub-Registrars shall not 'ordinarily be suspended in anticipation of the sanction of Gov- eminent required under Section 13, Registration Act. It would, therefore, appear that in extraordinary cases in the interests of administration the District Registrar has the power to suspend a Sub-Registrar in anticipation of Government sanction. The District Registrar has also the power of inspection and supervision of the sub-registrar's office and he is required to inspect each office at least once a year. Having regard to these provisions, therefore, I am unable to accede to the contention that the order 'of suspension passed by the District Registrar against 'the petitioner, pending enquiry into his conduct and in anticipation of Government's approval is contrary to any of the provisions of the Registration Act or the rules made thereunder.

8. The other contention is that the order of suspension amounts to an order reducing the petitioner in rank, and that it violates Article 311 of the Constitution inasmuch as, before passing the order of suspension, the petitioner had not been given a reasonable opportunity of showing cause against the action proposed to be taken against him.

9. Article 311(1) says :

'No person who holds a civil post under a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.'

Article 311(2) says :

'No such person, as aforesaid, shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'

Clause (1) does not apply as the petitioner has neither been dismissed nor removed by any authority so far. The only question, therefore, is whether the petitioner has suffered a reduction in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, merely by reason of the order of suspension passed against him, pending enquiry into his conduct.

10. There is no mention of the word 'suspended' in Clause (2) of Article 311. There is a difference between 'reduction in rank' and 'suspension'. Suspension literally means 'the act of debarring for a time from a function or privilege'. It means a temporary deprivation of one's office or position. The suspended officer does not cease to be a public servant : he is only prevented from discharging the duties of his office for the time being. 'Reduction in rank' on the other hand implies bringing down to a lower rank or position or dignity, either in the same cadre, or giving a lower place either in the same class of officers or to a lower class of Officers.

11. In order to understand the use of the two different expressions and their different connota-tions reference may be made to Section 7 of the Police Act of 1861. That section says that the I. G. of Police, the Dy. I. G. of Police, the Assistant I. G. of Police, and the District Superintendent of Police may at any time dismiss, suspend or reduce in rank any police officer of the subordinate rank whom they think remiss, or negligent in the discharge of his duty or unfit for the same. Rule 840, Orissa Police Manual, Volume I, also lays down that where a police officer has been suspended, not by way of punishment but pending the result of an enquiry Into his conduct, Section 7 has no application as such an order of suspension is not by way of punishment under Section 7. The rule makes a specific provision that suspension shall not be awarded as a specific punishment and suspension, pending enquiry, is authorised on the ground that the continuance on duty of the officer would be prejudicial to the public interest.

Rule 842 of the Manual also lays down that

'during the farm of such suspension, the powers, functions and privileges vested in him as a police officer are in abeyance but he continues to be subject to the same responsibilities, discipline and penalties and the same authorities as if he had not been suspended.'

It is clear therefore that the petitioner did not cease to be an officer of the Department of Registration and that his responsibilities continued as a public servant, even when he was under suspension.

12. Chapter VIII of the Fundamental Rules, made under Section 96(b). Government of India Act, deals with dismissal, removal and suspensions, F.R. 53 provides that a Government servant under suspension is entitled to payment of a subsistence grant at such rate as the suspending authority may direct. FP.R. 5 provides that when the suspension of the Government servant is held to have been unjustified and he is honourably acquitted, after enquiry, by the appellate authority, the period of his absence from duty will be treated as a period spent on duty and the officer will be entitled to full pay to which he would have been suspended. But if the order of suspension is held to be not wholly unjustified, unless the appellate authority otherwise directs, the officer will be entitled to proportionate pay and allowances. The revising or appellate authority may also authorise the payment of any leave salary which would be permissible to the officer, if the period of suspension is treated as one of leave. It is clear from these provisions, therefore, that reduction in rank is not a necessary consequence of an order of suspension.

As stated already, Article 311 does not use the word 'suspended' although suspension may, in certain cases, be awarded as a form of punishment. The penalties provided in the Civil Services (Classification, Control and Appeal) Rules, which ore In force by reason of Article 313 are; censure; withholding of increment or promotion; reduction to a lower post or time-scale; recovery from pay of a part or the whole of any pecuniary loss caused to Government by negligence or breach of orders; suspension; removal from civil service which does not disqualify from future employment; and dismissal from civil service which ordinarily disqualifies from future employment. Among the different penalties that may be Imposed dismissal, removal and reduction to a lower post are the only ones which have been provided for in Article 311(2) and no other penalty is mentioned in that clause against which a public servant is sought to be protected.

13. It was urged, however, that suspension 'ipso facto' amounts to 'reduction in rank'. The only authority for this extravagant proposition is to be found in -- 'Provincial Government, C. P. & Berar v. Shamshul Hussain', AIR 1949 Nag 118 (A). The passage relied on by learned counsel for the petitioner reads as follows :

'When a man is suspended he is, in our opinion, reduced in rank. It is evident that suspension is not equivalent to dismissal, because if it were then the present contention must fall to the ground. But if the man continues in service what rank does he hold? Clearly not the rank which he occupied at the date of suspension. He is not entitled to discharge any duties while under suspension. He is not entitled to draw his pay. It is evident, then, that he does not continue to hold his substantive rank becaust two of the fundamental attributes of rank (except honorary rank) are : the right to discharge his duties and the right to draw his pay. if then he continues in service but ceases to hold the rank he did, there must have been a reduction in rank &, in our opinion, an officer under suspension means an officer whose rank has been reduced.....'

With great respect I am unable to follow the reasoning of the learned Judges and must express my dissent. A suspended officer is not necessarily reduced in rank. Undoubtedly, he cannot discharge his duties while under suspension. But even so, an officer on leave cannot. There is no alteration in the status of either. It has to be remembered that a public servant is bound to discharge his duties irrespective of the rank he holds. There is an abeyance of the discharge of his normal duties by reason of an order of suspension and that is all. True that the Sub-Registrar under suspension cannot register any documents. But that does not mean, for instance, that he can or has to discharge the duties of a clerk. He still continues to hold the rank of a Sub-Registrar, and if the enquiry during which he is suspended does not reveal any misconduct the order of suspension is withdrawn and he is fully restored to his rank on the date of his suspension. It is only when he is demoted or reduced to a lower post, or to a lower scale, or reduced to a lower pay in the same time-scale, or reduced in the cadre, can he be said to have suffered a reduction in rank; and this can happen only when the enquiry is completed.

I am unable to subscribe to the view that a Government servant is entitled, as of right, to discharge his duties, and the moment he ceases to do so he suffers a reduction in rank. He is entitled to discharge his duties only so long as he is fit to do so and so long as he conforms to the rules of his office. He cannot claim any inherent right to perform his duties according to his pleasure and in violation of the rules. The whole time of a Government servant is at the disposal of Government which pays him and he may be employed in any manner by the proper authority. Suspension for an indefinite period may in some cases amount to removal or even dismissal from service, as was the case before their Lordships of the Nagpur High Court. But the observation that when a man is suspended he is automatically reduced in rank is, in my judgment, wide of the mark.

Our attention was drawn to the decision of a single Judge reported in -- 'Kaliprosanna Roy v. State of West Bengal AIR 1952 Cal 769 (B) where the interpretation put on the expression in the Nagpur decision was dissented from.

14. It has also to be remembered that the petitioner is only a probationer. 'Probationer' has been defined in Rule 39 of the Rules made by the Governor of Orissa under Section 241, Government of India Act, as a

'government servant employed on probation in or against a substantive vacancy in the cadre of a department.'

The discharge of such a person, during the period of probation, does not amount to 'removal' or 'dismissal' within the meaning of the Civil Services (Classification. Control and Appeal) Rules. A fortiori it would follow that his suspension does not amount to reduction in rank, either to a lower post or to a lower time-scale, or to a lower stage in the same time-scale.

15. The Bihar and Orissa Board's Miscellaneous Rules also lay down in App. EE that the discharge of a person appointed on probation, during the period of his probation, does not amount to removal or dismissal; but that before an order of dismissal, removal or reduction in rank is passed the procedure prescribed in Rule 55, Civil Services, Classification Control and Appeal Rules, has to be followed.

16. According to the contention of learned counsel, the petitioner is entitled to a reasonable opportunity being given to him to show cause why a departmental enquiry against him should not be started. This contention is wholly unfounded. Rules 172 and 173, Bihar and Oriesa Board's Miscellaneous Rules, prescribe the procedure to be followed in cases of dismissal and removal of ministerial officers. There is no reason to think that the procedure is different in the case of gazetted officers. These rules are modelled on the Civil Services (Classification, Control and Appeal) Rules. Rule 55 of these Rules which regulates the procedure to be followed in the conduct of enquiries against Government servants says that (1) the officer has to be informed in writing of the grounds on which Government is taking action; (2) the grounds have to be reduced to the form of definite charges with a statement of the allegations on which each charge is based; (3) the accused officer should be required within a reasonable time to put in a written statement of defence; (4) an early enquiry is to be held and the accused officer is entitled to examine witnesses; (5) he should be afforded an adequate opportunity of defending himself; (6) the proceedings should contain a sufficient record of the evidence and a statement of the findings and the grounds, and (7) after the enquiry against the Government servant is completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed the accused officer should, if the penalty proposed is dismissal, removal or reduction, be supplied with a copy of the report of the enquiring authority and be called upon to show cause within a reasonable time, not ordinarily exceeding one month, against the particular penalty proposed to be inflicted. And any representation submitted by the accused in this behalf should be duly taken into consideration before final orders are passed.

Appendix G, Bihar & Orissa Board Miscellaneous Rules, gives the form in which proceedings are to be drawn up and the order of the district officer has to be recorded. It would appear, therefore, that the accused officer has got two opportunities of representing his case, once before the punishment proposed to be awarded against him is recommended by the enquiring officer and again before the punishment is actually awarded, before the appellate authority. Article 311(2), therefore, says that he has to be given a reasonable opportunity of showing cause against the 'action proposed to be taken in regard to him'. No action can be said to have been proposed to be taken against accused officer until the enquiry into his conduct is completed. In the -- 'High Commr. for India v. I. M. Lall', AIR 1948 PC 121 (C) the Judicial Committee had occasion to interpret this very expression which occurred in Section 240(3), Government of India Act. The Board observed :

'In the opinion of their Lordships no action is proposed, within the meaning of sub-section until a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined on. Prior to that stage the charges are unproved, and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-section (3) (corresponding to Article 311(2)) makes provision.'

That stage has not been reached yet and, as I have said, all that the opposite party has done so far is to call upon the petitioner to stand an enquiry and answer certain charges of corruption and indiscipline. The action 'proposed to be taken in regard to him' has not yet been determined and consequently there has been no violation of the mandatory provision of Article 311.

17. Although the order of suspension was passed on 27-6-51, this petition was filed a year later on 18-7-52. Nonetheless, as the petitioner raised a question relating to the interpretation of the Constitution we allowed him to have his case argued at length. We cannot help observing, however, that even the opposite party has been very dilatory in starting proceedings against the petitioner who has been under suspension for nearly two years. Government received a report about the petitioner's misconduct and the order passed by the District Registrar suspending him on 2-7-51. The charges were framed against him only on 2-8-52. Government's order approving the action of the District Registrar suspending the petitioner was passed on that day, more than a year after the order of suspension was passed. We are of opinion that all this delay could have been avoided if the Inspector-General of Registration had been vested with powers to deal finally with at least orders of suspension.

18. On a consideration of all the circumstances we have no hesitation in arriving at the conclusion that this petition is devoid of merit and is misconceived, and this is not a fit case for grant of a writ. The rule is discharged, but in the circumstances there will be no order as to costs.

Mohanty, J.

19. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //