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Mohinder Singh Jagdev Vs. the Secretary, Ministry of Irrigation and Powergovernment of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberSuit No. 342 of 1968
Judge
Reported in11(1975)DLT243; 1974RLR542
ActsCentral Civil Services (Temporary Service) Rules, 1949 - Rule 5; Constitution of India - Article 311(2); Limitation Act, 1963 - Article 74; Fundamental Rules - Rule 52
AppellantMohinder Singh Jagdev
RespondentThe Secretary, Ministry of Irrigation and Powergovernment of India and ors.
Advocates: Keshav Dayal,; J.N. Aggarwal,; R. Dayal,;
Cases ReferredState of Madras v. A. N. Anantharaman. It
Excerpt:
service - termination - article 311 (2) of constitution of india - plaintiff terminated from service - plaintiff challenged termination order as wrongful, illegal and unconstitutional - impugned order of termination cast stigma on plaintiff and is not order of termination simplicities - police investigation still pending - plaintiff put under suspension because of pendency of police investigation - order passed in violation of provisions of article 311 (2) - held, impugned order bad in law and passed without jurisdiction. - - tekchandani, the then executive engineer, central water and power commission posted at bhopal is claimed to have lodged a report on october 6, 1956 with the police station, hardinge bridge (now tilak bridge), new delhi, alleging that the plaintiff bad made.....paraksh narian, j.(1) the plaintiff has filed a suit in forma pauperis claiming a declaration that the termination of his services with the respondent government is wrongful, illegal and unconstitutional and so, the plaintiff continues to be in services and a decree for rs. 84,000.00 out of which the plaintiff claims rs. 40,000.00 by way of salary. rs. 40,000/by way of damages and rs 4,000.00 by way of expenses allegedly incurred by the plaintiff to defend himself in a criminal prosecution alleged to have been commenced on a report of defendant no. 2. (2) according to the plaint the plaintiff was appointed as a supervisor on 8th june 1954 by defendant no. 2, the chairman, central water and power commission, new delhi, which post he claims he held up to october 11, 1954 when he submitted.....
Judgment:

Paraksh Narian, J.

(1) The plaintiff has filed a suit in forma pauperis claiming a declaration that the termination of his services with the respondent Government is wrongful, illegal and unconstitutional and so, the plaintiff continues to be in services and a decree for Rs. 84,000.00 out of which the plaintiff claims Rs. 40,000.00 by way of salary. Rs. 40,000/by way of damages and Rs 4,000.00 by way of expenses allegedly incurred by the plaintiff to defend himself in a criminal prosecution alleged to have been commenced on a report of defendant No. 2.

(2) According to the plaint the plaintiff was appointed as a Supervisor on 8th June 1954 by defendant No. 2, the Chairman, Central Water and power Commission, New Delhi, which post he claims he held up to October 11, 1954 when he submitted his resignation. He joined the Central Public Works Department as Section Officer in August, 1956, Shri N.D. Tekchandani, the then Executive Engineer, Central Water and Power Commission posted at Bhopal is claimed to have lodged a report on October 6, 1956 with the police Station, Hardinge Bridge (now Tilak Bridge), New Delhi, alleging that the Plaintiff bad made certain misstatements about his educational qualifications and had allegedly produced forged certificates and on the basis thereof secured appointment as Supervisor in the Office of the Central Water and Power Commission, New Delhi. The Delhi Police is claimed to have registered a case under sections 420/468/471 Indian Penal Code against the plaintiff. A challan as submitted against him on the basis of the report after investigation by the Police. The plaintiff was suspended from service from the office of defendants 5 to 6 in the C.P.W.D. and his services were terminated on October 10, 1967. The plaintiff was acquitted by the Criminal Court on May 8, 1964. According to him a copy of the judgment was supplied to him on August 18. 1964. This prosecution which the plaintiff calls malicious is claimed to have been caused him great mental agony, worries and heavy financial losses besides defamation of his character and lowering of his position among people known to him. It is claimed that his service career was ruined. In March, 1965 the plaintiff claims he was able to get a job but had to lead a hand to mouth existence. The plaintiff claims that the order of Octorber 10th 1957 terminating his services was, in fact, an order of dismissal and so, is liable to be quashed as vocative of Article 311 of the Constitution. It is also alleged that the order was mala fide and passed with ulterior motives, the plaintiff also asserts that the order of termination of service having been passed on the basis of the criminal case instituted against him while he was under suspension was bad in law as no such order could be passed till the criminal trial was concluded. In consequence, the plaintiff claims that the order of termination be quashed and he ba treated as being in service throughout. As already noticed the plaintiff further claims salary, damages -- for malicious presecution which he calls defamatory and compensatory damages and expenses incurred by him while facing trial on the criminal charge. A notice under section 80 Civil Procedure Code is claimed to have been served on the defendants but as they did not admit the claim or give him any relief the plaintiff has filed the persent suit.

(3) The original application under order 33 rule 2 Civil Procedure Code was amended by a plaint dated August 13, 1965/October 7th .965 and further amended by the petition of plaint dated March 13, 1969. The application of the plaintiff allowing him to sue in forma pauperis was granted on August 12th 1968 and thereafter the suit was registered. Written statements were filed on behalf of the defendants. It may be mentioned that the defendants cited by the plaintiff are : The Secretary, Ministry of Irrigation & Power, Government of India, New Delhi, The Chairman, Central Water & Power Commission, Bikaner House, New Delhi, Shri N. D. Tekchandani, the then Executive Engineer, C/o Investigation Division, C.W.P.C., Bhopal, The Secretary, Ministry of Works & Housing, Government of India, New Delhi The Chairman, Coordination Committee of Section Officers, CP.W.D., New Delhi, and the Superintending Surveyor of Works (N), C.P.WD, Nagpur The plaintiff filed a replication to the written statement on behalf of the defendants but it is not clear to which written staement he is referring for there were two written statements, one on behalf of defendants I to and the other on behalf of defendants 4 to 6.

(4) In the written statement of defendants 1 to 3 they raised the plea of limitation. It is mentioned that the report was lodged by defendant No. 3 not with Police Station Hardinge Bridge but with the Superintendent of Police, Parliament Street, New Delhi. It is denied that the report was either false or baseless or malicious. The ulterior motive alleged by the plaintiff is denied. It is stated that the plaintiff's services were terminated on September 10, 1957 and not on October 10, 1957. it is not disputed that the plaintiff was acquitted. All the other a.llegations were denied. In the written statement of defendants 4 to 6 it is contended that no suit was competent against the answering defendants except defendant No. 3 named in person as they were not legal entities, the suit was barred by time and that the plaintiff binga temporary eployee and his services having been terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 after requisite notice of one month, there was no justiciable cause of action. On merits the factum of the two employments of the plaintiff was not disputed nor the lodging of the report with the Police. It was admitted that the plaintiff was suspended with effect from April 12, 1957 on receipt of a report from the Superintendent of Police, New Delhi about his having been proceeded against the connection with a criminal case. Later on while the trial was still pending his services were terminated with effect from September 10, l957asalready noticed above. It is denied that the plaintiff is entitled to any amount by way of salary, damages or expenses. Receipt of notice under section 80 Civil Procedure Code was not disputed

(5) In the replication the plaintiff reasserted his earlier stand. On the pleadings of the parties the following issues were settled on September 2,1969:-

1. Whether the suit is barred by limitation O.P.D. 2. Whether the termination of the service of the plaintiff was wrongful and mala fide OP.P 3. Whether the prosecution of the plaintiff was on false and malicious reports It so, what are the damages and losses sustained by the plaintiff ?O.P.P. 4. Whether the impugned orders dated September 10, 1957 terminating the services of the plaintiff and that of December 3, 1964 refusing to reinstate the plaintiff after his acquittal amounts to dismissal O.P.D. 5. To what arrears of salary and damages if any, is the h the plaintiff entiled 6. Relief,

(6) Before I proceed to deal with the issues it may be noted that the petition under Order 33 C.F.C. was filed by the plaintiff on August 17, 1965. His services were terminated by a notice dated September 10, 1957 (Exhibit P. 16) giving him one month's notice of termination of service. In other words his services stood terminated on October 10 1957. The plaintiff was placed under suspension by an order dated April 12, 1957 and he was acquitted by the criminal court on May 8, 1964. The certified copy of the order of acquittal L Exhibit Public Witness . 10/6. An application for grant of this certified copy was moved on August 17, 1964' and the copy was prepared on August 18, 1964- I have given all these dales as argununts have been addressed on the question 'of limitation etc. for the claims made in this suit and for those cont entions these dates may be relevant.

(7) Looking at the pleadings of the parties the issues settled, the points that arise for consideration are :

1. Whether the termination of plaintiff's services was had in law including the question as to whether such termination of service would amount to dismissal within the meaning of the term under Article 311 of the Constitution 2. Whether the plaintiff is entitled to damages for malicious prosecution 3. Whether the plaintiff is entitled to salary and/or damages qua his claim of wrongfu termination of service 4. Whether refusal to reinstate after the plaintiff's acquittal amounts to dismissal from service and 5. Whether the suit for declaration and the claim for damages and/or salary is within Imiltation

(8) Taking the first point regarding validity of the termination of service, it is common ground that the plaintiff was placet under suspension on April (2, 1^37 by an order of that date, copy of which is Exhibit P. '7. Suspension of a Government servant could be ordered at the relevant time under the Central Civil Services (Classification, Control and Appeal) Rules, 1957 which came into force from February 28,1957. According to rule 12 of the Central Rules the appointing authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf could place a Government servant under suspension, inter alia, where a case against him in respect of any criminal offence is under investigation or trial. It is not disputed that such a contingency did exist to warrant the order of suspension dated April 12, 1957 being passed with regard to the plaintiff. While the crimina trial or investigation was still pending the plaintiff's services were terminated by an order dated September 10,1957 purported to have been pissed under Rule 5 of Central Civil Services (Temporary Service )Rules, 1949 which is Exhibit P. 16 on the record. On the fact-of the order it appears that it was passed under Rule 5 of the said Rules but the contention is that: (a) in reality this was an order of dismissal having been passed b cause of the criminal trial pending against the plaintiff; and (b) no such order could be passed while the plaintiff ' as under suspension by virtue of Rule 12 of the Classification Control and Appeal Pules of 1957. It is also urged that the very fact that it is mentioned in Exhibit P. 16 that service of Mohinder Singh Jagdev, Section Officer (under suspension) are being terminated casts a sigma on the plaintiff and so, it was not atermination of the services of temporary Government servant which can be regarded as a terminatination simplicited. Nothing has been brought on the record to show that the services of the plaintiff were terminated purely as an administretive measure. It is quite obvious his services were terminated because of the pendency of the criminal case against him.

(9) Insupport of the contention that describing the plaintiff as a Government servant under suspension amounts to a stigma on him and so, reliance on Rule 5 of Temporary Service Rules is of no avail, my attention was first invited to a bench decision of the Assam and Nagaland High Court in N.B.Chakroberty v.The Union of India. It was held that where a temporary employee whose services are terminated under Rule 5 (1) is described as ' at present under suspension ' but before his termination provisions of Article 311(2) are not complied with, the termination is illegal as the order leaves a stigma on the person concerned and any future employer may reasonably think that he must have been suspended in service on some serious allegations and may refuse employment to him on that ground alone. In Jagdish Mitter v. The Union of India', the mention of Jagdish Mitter being found undesirable to be retained in government service in an order purporting to be a discharged simplicities was held to cast a stigma on him and so, vocative of the rule enunciated by Article 311(2) of the Constitution. It was observed that test in such cases must be : Doss the order cast aspersions or attach stigma to the officer when it purports to discharge him

(10) In K.H.Phadnis v. State of Maharashtra, the only question with which the court was concerned was whether the order of the Government of Bombay ' repatriating ' the appellant from temporary post of Controller of Food Grains Department, to his parent Department of Excise and prohibition amounted to a reduction in rank in violation of the provisions contained in Article 311 of the Constitution. The Government resolution sending Phadins to his parent department itself was innocuous but the events leading up to that resolution, the pendency of an investigation into the allegations against Phadnis when the resolution was passed, his protest at the so called repatriation, the unwillingness of the parent department to have him back and that though Phandis held a temporary post it was practicaily of quasi permanent character were all taken into account. It was then observed that the order of reversion simplicities will not amount to a reduction in rank or a punishment and I he Government has a right to revert a Government servant from his temporary post to the substantive post but as the matter has to be viewed as one of substance and all relevant matters are to be considered in ascertaining whether the impugned older is a genuine one of' accient of service ' or whether it was one of reversion amounting to a punishment. On the facts of the case it was held that the impuged repatriation amounted to a reduction in rank attracting Article 311 of the Constitution.

(11) In Union of India v. Gian Singh Kadian, a bench of this court held that there was an abundant authority For the proposition that if a Government servant is suspended and his services are terminated without holding any enquiry against him. termination of service under Rule 5 of the Temporary Service Rules would amount to punishment so as to attract the provisions of Article 311 of the Constitution. In other words the rule laid down was that since suspension has to be either because of a pending departmental enquiry or pending trial or investigation a termination of service under Rule 5 of the Temporary Service Rules while such enquiry or investigation is still pending would really show that the termination of service was not on account of the exigencies or accident of service but for an ulterior motive.

(12) In R. C. Roy v. Union of india, a bench of this court elaborated on the circumstances in which termination of service of atemporary Government servant can be regarded as punishment or otherwise. It was observed that services of a temporary Government servant can be terminated in two ways, viz. (i) on subjective assessment of his work as part of his service contract and in ordinary course of administrative routine, and(ii) dismissal or removal by way of penalty. It is only the latter action which attracts the operation of Article 311(2) of the Constitution. A distinction was drawn between a preliminar enquiry into had confidential reports and a formal enquiry. The test laid down was whether a stigma vitiates the order of termination and whether the stigma is contained in the order itself or is at least inseparable. The bench considered all the decisions of the Supreme Court starting from the decision in Purushottom Lal Dhingra v Union of India up to the Delhi Transport Undertaking v. Balbir Saran Goel. In my respectful opinion the rule laid down is a perfect guide to find out whether an impugned order amounts to inflicting a punishment or it is an innocuous order passed under the rules of service or the contract of service.

(13) Applying the aboveprinciples there can be no manner of doubt that the impugned order of termination of service. Exhibit P. 16, did cast a stigma on the plaintiff and is not an order of termination simplicities under Rule 5 of the Temporary Service Rules. The Police Investigation/trial was still pending. The plaintiff had been placed under suspension because of the pendency of the Police investigation, the order itself describes the plaintiff to be an officer' under suspension . I, thereforee, hold that the said order was passed in violation of the provisions contained in Article 311(2) of the Constitution and so, was had in law That is not the same thing as an order being void ab initio as for instance an order being passed without jurisdiction.

(14) It was urged that when a person is under suspension his services could not be terminated till the suspension was revoked. Reliance in support of this contention was place on V. P. Gidroniya v. State of MadhyaPradesh. It was held that when a Government servant is placed under suspension the relationship of employer and employee stands suspenied for the time being and so, during the per od of suspension of a temporary Government servant there cannot be any termination of the Government servants service by a notice either by the Government servant or by the appointing authority. Support for enunciat- ing this rule was found by the bench from the decision of the Supreme Court in Hotel Impenal, New Delhi v. /^c/ Workers' Union^. In my opinion the rule laid down cannot be applied to Government servants. In the case of an ordinary contract of service between Master and servant a suspension of the employee amounts to a suspension of the contract of personal service or to apostponement of an actual performance of the contract. In other words the relationship of master and servant remains in abeyance for the period of suspension. A question that, however, arises is ; Can an employee during this period go and seek employment elsewhere and whether the matter can with hold wages due to the servant during his period It will really depend upon the terms of the contract of service whether this can be done or not. As far as Government service is concerned the government servant under suspension cannot seek employment elsewhere nor can the Government withhold payment of wages. Indeed, as is apparent from a reading of Exhibit P. 17 itself the subsistence allowance that the plaintiff was to draw is specified. It is also set out in Exhibit P. 17 that he will in addition to subsistence allowance also draw city cornpersatory allowance and othe allowances. Obviously if that is to be done it cannot be said that no relationship of master and servant existed between the plaintiff and the Government while he was under suspension.

(15) I was also referred to Union of India v. Gian Singh Kadian, but this decision has nothing to do with the contention raised. My opinion, thereforee, is that even during suspension the relationship of employer and employee continues to be in existence in the case of Government service, I am further fortified in taking this view by a reading of the Fundamental Rules which are applicable to Central Government employees. Fundamental Rule 53 provides for the pay' ments to which a Government servant under suspension would be entitled. A government servant is entitled to a salary by virtue of his terms of appointment read with such rules as may be framed under Article 309 of the Constitution and the provisions of pay to be found in Chapter Iv of Part 3 of the Fundamental Rules, Inasmuch as salary etc , can be claimed as of right by virtue of the rules under which the same are payable and the terms of appointment, similar payments contemplated by Fundamental Rule 53 can also be claimed as of right. thereforee there is absolutely no force in the contention that during suspension the contract of employment between the Government and the plaintiff was suspended and till the suspension was revoked his services could not be terminated The argument may he looked at from another point of view also. There is no bar to services being terminated accordance with law of a Government servant under suspension. For example, if a Government servant is placed under suspension but in the meantime circumstance for invoking the provisions of clause (e) of the proviso to article 311(2) are brought to light, it cannot be said by any stretch of imagination that where a government servant under suspension becomes a security risk his services cannot be terminated without first revoking the order of suspension.

(16) I will first take up the plaintiff's claim for damages for malicious prosecution. The plaintiff's contention is that he was falsely implicated because of ulterior motives, as is apparent from the fact that he was honourably acquitted. The prosecution against the plaintiff failed on account of lack of evidence as is evident from a perusal of the certified copy of the judgment of the Magistrate, Exhibit Public Witness . 10/6. There is no observation in the said judgment to warrant the suggestion that the prosecution was malicious or motivated. The allegation in the plaint is that it was defendant No. 3 who lodged a false complaint against the plaint ff. Defendant No. 3 is Shri N. D' Tekchandani. The plaintiff in his testimony as P, 10 has not made any allegations against Shri Tekchandani. In this view of the matter it is held that there is nothing on record to come to the conclusion that the prosecution lodged against the plaintiff, which failed, was commenced by Shri Tekchandani maliciously or with ulterior motives. If that be so, merely because the plaintiff was ultimately acquitted he cannot claim damages for malicious prosecution. Apart from the claim being untenable it must also be held to be barred by time. The limitation for filing a suit for compensation for malicious prosecution is one year under Article 74 of the Schedule to the Limitation Act of 1963 The time is to be computed from the date when the plaintiff is acquitted or prosecution is otherwise terminated. The plaintiff was acquitted on May 8, 1964. The suit may be deemed to have been filed on August l7, 1965. Even if the two months' notice period provided by section 80 Civil Procedure Code is added the limitation for filing the suit expired on July 8, 1965. I am not impressed with the argument that the limitation has to be computed from the date when the copy of the judgment of the criminal court was made available to the plaintiff, particularly when the application for such copy was moyed after the expiry of the period of limitation. The claim of Rs. 4000.00 for expenses allegedly incurred by the plaintiff in defending himself at a criminal trial is also rejected. First of all, the e is no proof of the actual amount spent. Secondly, this amount would also be in the form of damages and the limitation for claiming the same would be governed by Article 74.

(17) Because the termination of plaintiff's services has been held to be vocative of Article 311(2) of the Constitution it can be urged that he is entitled to a declaration that the said order of termination is not binding on him and he still continues to be in service. It can also be urged that he is entitled to his claim for salary or damages for this period when he has been kept out of service.

(18) The plaintiff's suit would be deemed to have been filed on August 17, 1965 while the orde of termination of service was passed on September 10, 1 57, the service of the plaintiff being terminated from 9/10th October. 1957. The Limiation Act, 1963 came into force from January 1, 1964. The cause of action for challenging the order of dismissal arose to the plaintiff in September or October. 195/. Article 58 in the First Division of the Schedule to the Limitation Act of 1963 provides for limtation of three years. If this article applies then the suit would obviously be barred by time. Even if Article 120 of the Limitation Act, 1908 was attracted the suit would be barred by time notwithstanding the provisions of Section 30 of the Limitation Act of 963. It has, however, been urged that the limitation for the claim of declaration should be computed from the time when the plaintiff was refused reinstatement inspire of acquittal on May 8, 1964. After the plaintiff was acquitted he applied for reinstatement but was not reinstated as is evident from the office memo dated September 3. 1964, which is Exhibit P. 25. In support of the contention that it is refusal to reinstate which really amounts to dismissal and gives a case of action to the plaintiff to challenge the order of termination of service I was first referred to Union of India v. R. Akbar Shariff This was a suit where a Government employee dismissed from service on being convicted by a criminal court was reinstated on the conviction being set aside in appeal. He then claimed salary for the intervening period. The rule laid down in this case does not support the contention that limitation for challenging wrongful termination of service will commence only after acquittal or that cause of action for claim that the termination of service was wrongful will accrue only after reinstatement is refused after acquittal. My attention was also invited to State of Madras v. A, V. Anantharaman. This was also a case for recovery of salary after reinstatement and is not relevant to the issue in hand. To my mind the contention on behalf of the plaintiff that it is refusal to reinstate which amounts to dismissal has no force. The plaintiff was placed under suspension because of a criminal investigation pending against him. His services were terminated purportedly under Rule 5 of the Temporary Service Rules. As criminal trial was pending aginst him, possibly he was considered undesirable for being retained in Government service. The suit for declaration challenging the termination of service as wrongful has nothing to do with the suspension order/ The cause of action for challenging the order of dismissal as being wrongful arose when that order was passed or implemented. Subsequent events did not give any more force to the conditions that prevailed at the time when his services were terminated. That the plaintiff was acqitted may suggest that ; e was not at fault and so, should not have been proceeded against in a criminal court but the reason for termination of service was not his conviction as in the Madras case. So, the ground available to the plaintiff now is the same as was available to him when the order of termination was passed. Rightly or wronly anorder of termination of service has been passed and though the order has been held to be violativeof Article 311(2) of the Constitution it does not mean that the order is void ab initio. Right or wrong, the order subsists and unless it is quashed it will have full effect. To have it quashed the plaintiff should have come to court within the period of Imitation and it is no defense to say that he was busy in prosecuting his criminal case and could not come to court earlier. I, thereforee, hold that the suit for declaration is barred by time. .

(19) I now come to the question of the claim for salary. The plaintiff could claim salary only if he was in service. If he was not in service he could not claim any salary. It has been contended that the plaintiff could not ask for salary till he was reinstated by virtue of of Fundamental Rule 52 and it is only after his dismissal is set aside that salary would become due to him. inasmuch as the order of termination of service or dismissal cannot bs set aside no relief regarding salary can also be given.

(20) In Union of India v.Gian Singh Kadian, bench of this court held that the cause of action for claiming full pay and allowances would arise only when the wages become due and that is from the time when the order of suspension stood revoked. The same view was taken in State of Madras v. A. N. Anantharaman. It was observed that clam by a public servant, whose dismissal has been set aside, for arrears of his pay falls within Article 102 of the Limitation Act, and the right to recover arears of salary accrues only after the order of dismissal is set aside either in the departmental appeal or a civil court.. It was observed by reason of Fundamental Rule 52 in case of such an employee the right to salary chases the moment an order for dismissal or removal is made and it is not open to the employee to recover the salary without having the order of dismissal set aside. Fundamental Rule 52 contemplates no distinction beween irregular and improper order which has been set aside by departmental authority and one declared to beinvalid by civil courts. So, the crux of the matter is whether the order of dismissal can be or is set aside.

(21) In Madhav Laxman Vaikuntha-v. State of Mysore, it has been clearly held that wages accrue due month by month. Reconcile ing. thereforee, the observations of the Supreme Court in this case with Fundamental Rule 52 and Fundamental Rule 53 it has to be held that if the ordei of dismissal is set aside then wages or salary due to a plaintiff for a period not exceeding three years from the date of the institution of the suit can also be granted. The plaintiffmthe present case would have been entitled to a similar relief if the order of dismissal could be set aside. I have already held the suit to have that order set aside is barred by time There fore,the order of dismissal not having been set aside, no claim for salary can be allowed.

(22) The result is that the plaintiff's suit is dismissed but in the circumstance of the case parties are lef to bear their own costs.


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