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State of Kerala Vs. Sukumaran Nair - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1966)IILLJ403Ker
AppellantState of Kerala
RespondentSukumaran Nair
Cases ReferredState of Bihar v. Abdul Majid
Excerpt:
- - 6 wherein a report dated 28 february 1953 is made by the district superintendent of police in which he has recommended that the plaintiff's case may be disposed of by removing him from service as has been done in the case of certain other officers whose punishment rules were also disposed of and in the margin of this note there is an endorsement which is claimed to have been name by the inspector-general of police dated 2 march 1953 to the effect 'yes. 15. but the more serious controversy that existed between the parties related to the legality and validity of the disciplinary proceedings initiated as against the plaintiff, the conduct of the enquiry proceedings, the findings recorded therein as well as the legality of the order of dismissal passed as against the plaintiff......c.a. vaidialingam, j.1. in this appeal on behalf of defendant 1, state, the learned government pleader attacks the decree and judgment passed by the learned district judge, trivandrum, accepting the claim of the plaintiff in original suit no. 115 of 1956.2. the plaintiff was, at the material time, working as a constable in the wireless and telegraphic section of the armed reserve of the travancore-cochin police force at oolampara in trivandrum. there is no controversy that the plaintiff was appointed to the post by the inspector-general of police on 3 january 1951. it is seen that according to the authorities concerned the plaintiff was suspected to be involved in carrying en certain subversive activities in conjunction with certain other members of the police force and that resulted in.....
Judgment:

C.A. Vaidialingam, J.

1. In this appeal on behalf of defendant 1, State, the learned Government Pleader attacks the decree and judgment passed by the learned District Judge, Trivandrum, accepting the claim of the plaintiff in Original Suit No. 115 of 1956.

2. The plaintiff was, at the material time, working as a constable in the Wireless and Telegraphic section of the Armed Reserve of the Travancore-Cochin Police Force at Oolampara in Trivandrum. There is no controversy that the plaintiff was appointed to the post by the Inspector-General of Police on 3 January 1951. It is seen that according to the authorities concerned the plaintiff was suspected to be involved in carrying en certain subversive activities in conjunction with certain other members of the police force and that resulted in disciplinary action being initiated as against the plaintiff.

3. So far as the records go, it is seen that a communication, Ex. P. 2, was sent by the District Superintendent of Police of the Armed Reserve on 9 August 1952 placing the plaintiff along with certain others under suspension on the ground that there are charges pending as against them of being members of a secret group having the object of promoting subversive activities in the Armed Reserve. There is also a direction asking the plaintiff and the other officers mentioned therein to appear before the Assistant Superintendent of Police who has given evidence in these proceedings as P.W. 1 for personal hearing at the police school with individual explanations.

4. In the endorsement of the Assistant Superintendent of Police in that memorandum itself it is stated that the Inspector-General of Police has approved of the enquiry being conducted by the Assistant Superintendent of Police. The charges themselves appear to be contained in Ex. P. 1; and the substance of the charge is that the plaintiff was a member of a secret group of the Armed Reserve Police personally formed by a head constable No. 4052 of the Wireless Telegraphic section of the Armed Reserve with the object of promoting subversive activities in the Oolampara Reserve Camp. The further allegation was that with that object in view the police constable in question, namely, the plaintiff, took part in meetings held on 23 June 1952 and certain other days at the instance of the head constable No. 4052 and at other places when the head constable concerned is alleged to have given a discourse on party organization, and in that discourse it is also stated that allegations of highhanded actions on the part of the authorities in running the Armed Reserve were being made and that even in the matter of giving promotions legitimate claims were not being considered.

5. On the basis of these allegations contained in Ex. P. 1, the plaintiff was called upon, by the District Superintendent of Police, under Ex. P. 3 again in August 1962, after setting out briefly the charge and also stating that the plaintiff is directed to show cause, within three days, as to why his services in the department should not be dispensed with. That memorandum also directs that the explanation is to be presented by the plaintiff as directed in Ex. P. 2. There is no doubt the usual warning that if the plaintiff does not appear at the personal hearing, orders will be passed without any further reference to the plaintiff.

6. It is seen that the Assistant Superintendent of Police conducted an enquiry into the charges framed as against the plaintiff and also examined witnesses. That is seen from Ex. P. 5. I will have to revert to Ex. P. 5 in the later part of the judgment in considering the contention of Sri P. Subramonian Potti, learned Counsel for the plaintiff-respondent, that the finding of the lower Court that the charges framed as against the plaintiff have been properly established is not borne out by the evidence adduced in the case.

7. At this moment, it is enough to note that after referring to the evidence of the witnesses examined by the enquiring officer, namely, the Assistant Superintendent of Police, the latter winds up Ex. P. 5 with the statement that the charge against the police constable, namely, the plaintiff, is established and he has proved himself also unworthy of a trust reposed in him by the authorities and he quit the service. The report of the Assistant Superintendent of Police is Ex. P. 5 dated 5 September 1952. There is an endorsement dated 2 March 1953 in Ex. P. 5 made by the District Superintendent of Police but purporting to have been made by order of the Inspector-General of Police.

8. The substance of the endorsement is that the plaintiff was served with a copy of the report and was called upon to show cause why he should not be dismissed from service on the charges for which he was tried and found guilty. It is also stated that the representation made by the plaintiff dated 28 October 1952 in and by which he has reaffirmed his plea of innocence has also been considered and that ultimately the conduct of the plaintiff is such that he can no longer be continued in service in view of the report of the enquiring officer. The endorsement winds up with the statement again to the effect that the plaintiff is removed from service with effect from 9 August 1952 which is the date on which he was placed under suspension pending an enquiry in the allegations.

9. I will also refer to Ex. P. 6 wherein a report dated 28 February 1953 is made by the District Superintendent of Police in which he has recommended that the plaintiff's case may be disposed of by removing him from service as has been done in the case of certain other officers whose punishment rules were also disposed of and in the margin of this note there is an endorsement which is claimed to have been name by the Inspector-General of Police dated 2 March 1953 to the effect ' yes.' At thin stage it may be mentioned that considerable controversy has been raised by the plaintiff to the effect that thin endorsement made by the Inspector-General of Police accepting the recommendations of the. District Superintendent of Police on 2 March 1953 is a later interpellation to justify an otherwise illegal order of dismissal passed fry a subordinate authority, namely, the District Superintendent of Police contrary to the provisions contained in Article 311 of the Constitution.

10. The plaintiff instituted the suit in question challenging the validity and legality of the disciplinary proceedings initiated and conducted as against him. The case of the plaintiff was that the enquiry proceedings were not authorized to be conducted by the appointing authority, namely, the Inspector-General of Police. According to the plaintiff, the proceedings had been initiated and conducted by an officer who had no jurisdiction in that regard, namely, the District Superintendent of Police. A further plea also was taken that even the charges which were served on the plaintiff for which an enquiry was conducted were not framed by the punishing authority, namely, the Inspector-General of Police.

11. The enquiry proceedings themselves were characterized as a farce and that the plaintiff had no reasonable opportunity of placing his case before the enquiring authority. Alternatively the plaintiff also pleaded that the evidence recorded in the enquiry does not at all support the conclusion arrived at by the enquiring officer in his report, Ex. P. 5, holding the plaintiff guilty of the charges.

12. The further attack that was taken as against these proceedings was that after the enquiry proceedings were over and the findings had been recorded by the Assistant Superintendent of Police there is nothing on record to show that the competent authority to impose punishment on the plaintiff, namely, the Inspector-General of Police, had ever considered the findings and issued the show-cause notice as is mandatory under Article 311 of the Constitution as interpreted by the decisions of Courts.

13. Therefore, in consequence, the plaintiff sought relief to have the order passed by the District Superintendent of Police removing him from service with effect from 9 August 1952 declared void and inoperative. The plaintiff also prayed for recovery of arrears of pay at Rs. 50 per mensem and also future salary at the same rate. The claim of the plaintiff that the enquiry proceedings were not conducted properly or that they were not initiated by the proper authorities were controverted by the State, defendant 1, in the action. Defendant 2 was the Inspector-General of Police. The State took up the plea that the enquiry itself was initiated under instructions from the Inspector-General of Police and that the final order of dismissal was also passed by the Inspector-General. The Stats also took up the plea that a reasonable opportunity for participating in the enquiry was also given to the plaintiff and the enquiry proceedings were also conducted properly in which the plaintiff took an active part. The State further took up the position that the plaintiff was served with a proper show-cause notice before the final order of imposing the punishment was passed and that order itself was passed after taking into account the representations made by the plaintiff. The claim of the plaintiff to have a declaration in the manner asked for was contested by the State.

14. There appears to have been certain other contentions taken by the State that the suit itself is barred by limitation and that it is also not maintainable in law. So far as those pleas are concerned, the learned District Judge has rejected those contentions and held that the suit is maintainable and that the suit is also not barred by limitation.

15. But the more serious controversy that existed between the parties related to the legality and validity of the disciplinary proceedings initiated as against the plaintiff, the conduct of the enquiry proceedings, the findings recorded therein as well as the legality of the order of dismissal passed as against the plaintiff.

16. The learned District Judge is of the view, after a consideration of the enquiry report and the charges that have been framed as against the plaintiff, that the grievance of the plaintiff that the charges are vague or that the charge as against the plaintiff has not been made out by the evidence adduced before the enquiring officer, cannot be accepted. Therefore, on those, aspects the findings of the learned District Judge are that the charges are not vague and that the evidence adduced during the enquiry clearly establishes that the findings of guilt recorded as against the plaintiff are supported by the evidence.

17. The contention of the plaintiff that the order of dismissal has not been passed by the Inspector-General of Police, the punishing authority, was not also accepted by the learned District Judge. The view of the lower Court is that having due regard to the evidence of the Inspector-General of Police, P. W. 1, as well as to the evidence of the District Superintendent of Police, D. W. 1, and the endorsement contained in Ex. P. 6, it must be held that the order of dismissal was passed by the Inspector-General of Police but it was only communicated by the District Superintendent of Police. Therefore, according to the learned Judge, the final order of dismissal does not suffer from any infirmity.

18. But the learned District; Judge accepted the contention of the plaintiff that after the findings were recorded by the Assistant Superintendent of Police in Ex. P. 5 there is nothing on record to show that the punishing authority, namely, defendant 2, has ever considered the findings recorded in Ex. P. 5 and after provisionally accepting those findings has issued the show-cause notice to the plaintiff indicating therein also the provisional punishment that he proposes to impose. That in, according to the learned Judge the punishing authority has not adverted at all to the findings recorded in Ex. P. 5, nor has he given a reasonable opportunity as safeguarded to officers like the plaintiff under Article 311 of the Constitution of an opportunity of showing cause against the proposed action. That, according to the learned Judge, is a serious infirmity attaching to these disciplinary proceedings.

19. The learned District Judge is also of the view that it cannot be stated in this case that the enquiry proceedings were initiated by the Inspector-General of Police who is the punishing authority and who, according to the lower Court, Is the only competent authority who can initiate such proceedings. Therefore, that action, according to the lower Court, is an additional infirmity attaching to these proceedings. Substantially, in view of the two infirmities noted above, the learned District Judge has ultimately granted a decree in favour of the plaintiff.

20. The actual decree that has been granted in favour of the plaintiff is one declaring that the order removing the plaintiff from service from 9 May 1952 is void and inoperative and that the plaintiff is entitled to recover arrears of pay at the rate of Rs. 50 per mensem for three years prior to suit and thereafter at the same rate from defendant 1. The learned Judge has also given certain directions regarding costs.

21. In this appeal, the learned Government Pleader, on behalf of the State, attacks the two findings on the basis of which the plaintiff's claim has been accepted by the learned Judge. Those findings are that the enquiry in this case was ordered as against the plaintiff not by the Inspector-General of Police but by a subordinate authority, namely, District Superintendent of Police, and secondly that a reasonable opportunity of showing cause against the punishment to be imposed after the enquiry report was available, has not been given by the punishing authority to the plaintiff.

22. Sri P. Subramonian Potti, learned Counsel for the plaintiff-respondent, has filed memorandum of objections contesting the correctness of certain findings recorded as against his client. According to the learned Counsel, the view of the learned Judge that the charges are not vague is absolutely wrong. More serious than that, the learned Counsel attacks the view expressed by the learned District Judge that the enquiry proceedings, Ex. P. 5, and the evidence referred to therein clearly show that the charges as against the plaintiff have been properly proved as absolutely erroneous, illegal and opposed to the evidence adduced before the officer. That is, according to the learned Counsel, having due regard to the nature of the charge framed against the plaintiff and the evidence that has been actually discussed by the enquiring officer, no reasonable tribunal on the basis of that evidence can come to the conclusion that the charges have been proved as against the plaintiff.

23. The learned Counsel also attacked the finding of the lower Court that the order of dismissal has been passed not by the District Superintendent of Police but by the Inspector-General of Police. That is, according to the learned Counsel, the evidence adduced in this case and particularly the evidence of defendant 2, as P.W. 1, will clearly show that the Inspector-General of Police has not passed the order of dismissal as wrongly held by the lower Court.

24. Therefore, while the learned Government Pleader attempts to have the decree of the lower Court reversed after disagreeing with the two findings recorded as against the State, the learned Counsel for the plaintiff-respondent not only supports the judgment on the findings recorded in favour of his client but also urges that even such of those findings that have been recorded as against his client should not be accepted by this Court and if those findings are not accepted, it will clearly show that there are a lot of infirmities attaching not only to the enquiry proceeding but the charges themselves cannot be considered to have been established in this case.

25. If I am inclined to accept the contention of the learned Counsel for the plaintiff-respondent that the charge that has been framed as against the plaintiff cannot be considered to have been established on the evidence that was available before the enquiring officer, there will be really no further necessity to go into any other point, because the result will be that the plaintiff cannot be considered to be guilty of misconduct as alleged by the State, and on that single ground the plaintiff's suit will have to be decreed and the order of dismissal based upon such wrong findings will have to be straightaway quashed. But anyhow as all aspects have been placed before me by both the learned Counsel I will express my views in respect of all those contentions.

26. The learned Government Pleader urged that in this case it is clear that the enquiry proceedings have been directed to be initiated by the Inspector-General of Police and alternatively the learned Government Pleader urged that, in any event, it is not really necessary that the punishing authority himself should initiate also the disciplinary proceedings. In this connexion, the learned Government Pleader drew my attention to the rules that have now been framed under Article 309 consistent with the guarantee given to officers like the plaintiff under Article 311 of the Constitution. Those rules pre the Kerala Police Department Enquiries Punishment end Appeal Rules, 1958. No doubt a perusal of those rules will show that disciplinary action for the conduct of enquiries can be initiated by the departmental superior under whom the officer against whom action is sought to be taken is employed. No doubt, at the material time when action was taken as against the plaintiff there do not appear to have been any rules. I am only adverting to the rules relied upon by the learned Government Pleader to show that even after the coming into force of the Constitution the rules have teen framed in such a manner giving jurisdiction to the superior officers under whom the particular delinquent officers are working to initiate disciplinary proceedings. No doubt, the punishment in the manner provided for under Article 311 can only be imposed by the authority mentioned therein.

27. The learned Government Pleader pointed out that in Ex. P. 2 dated 9 August 1952 whereunder the plaintiff and certain other officers were placed under suspension pending enquiry into the charges framed as against them there is an endorsement to the effect that the Inspector-General of Police has approved of the enquiry being conducted by the Assistant Superintendent of Police, Anti-corruption. No doubt, normally one must give considerable importance to a statement contained in this memorandum which will give an indication that the Inspector-General of Police has authorized the initiation of proceedings. But unfortunately the Inspector-General of Police himself has given evidence as P. W. 1 and he has categorically stated that so far as the plaintiff is concerned, he has not given any order authorizing any officer to initiate enquiries. Therefore, in the face of this clear admission of P, W. 1, it is difficult to accept the contention of the learned Government Pleader that the initiation of disciplinary proceedings was by the Inspector-General of Police.

28. But I am not inclined to accept the contention of the learned Counsel for the respondent no doubt based upon certain observations in the decision of the Calcutta High Court in Choudhry (A.R.S.) v. Union of India and Ors. 1957-1 L.L.J. 494 and on an interpretation based upon a particular rule by a learned Judge of this Court in Itticheria (M. V.) v. State of Kerala and Anr. 1959-I L.L.J. 611 that initiation of disciplinary proceedings also must be only by the punishing authority.

29. In my view, the learned Government Pleader is well-founded in referring to the rules that have been framed under Article 309 authorizing the departmental superiors initiating disciplinary proceedings against their subordinates. The question of punishment does not come at this stage, and that will have to be kept separate from the authority competent to initiate disciplinary action. Therefore, on this limited ground, 1 am inclined to accept the contention of the learned Government Pleader that the mere fact that the District Superintendent of Police initiated the disciplinary proceedings as against the petitioner cannot be considered to invalidate the disciplinary proceedings if otherwise those proceedings can be sustained on other grounds. Therefore, to this extent, the view of the learned District Judge that the disciplinary proceedings must be held to be invalid is not acceptable to me.

30. But unfortunately this finding in favour of the State will not assist the appellant as I will show presently. The second contention of the learned Government Pleader is that even show-cause notice has been issued by the Inspector-General of Police and in any event, the learned Government Pleader pointed out that She plaintiff has not been able to establish that the orders which are challenged have not been issued by the competent authority. So far as this is concerned, there la considerable difficulty in accepting the contention of the learned Government Pleader. The safeguard given to a Government servant regarding the proper authority who is to issue the show-cause notice after the Inquiry proceedings are over and the importance that is attached to it, have been emphasized, as pointed out by the learned Counsel for the respondent, by the Supreme Court in the decision in State of Assam and Anr. v. Bimal Kumar Pandit 1963-I L.L.J. 295. According to that decision the punishing authority must apply his mind to the findings recorded by the inquiry officer and after indicating his acceptance of those findings or such of those findings which he accepts must inform the delinquent officer about his acceptance of those findings-as well as the action that he proposes to take and call upon the officer concerned to offer his explanation to the said proposed action. At that stage the officer gets a full opportunity of challenging the findings on the basis of which action is proposed to be taken and he can satisfy if possible the authority competent to impose the punishment that no action is called for.

31. But the point to be noted is that the Issue of a show-cause notice and the acceptance of the findings of the enquiry officer must be that of the authority who Is competent to impose the punishment and not of any other authority.

32. It is not possible to accept the contention of the learned Government Pleader that defendant 2 has applied his mind to the findings recorded in Ex. P. 5 and the show-cause notice has also been issued by him. No doubt the learned Government Pleader relied upon the endorsement contained in Ex. P. 6 and I have already pointed out that that endorsement is challenged by the plaintiff as a later interpolation. Whether it is a subsequent interpellation or not, it does not in any manner advance the case of either parties so long as there is nothing on record placed by the State to satisfy this Court that after the report was submitted under Ex. P. 6, the Inspector-General has indicated his views regarding the findings recorded therein and issued any show-cause notice to the plaintiff. In the absence of any such material, it has to be held that the mere fact that after the whole thing was completed the Inspector-General gives his stamp of approval in Ex. P. 6, certainly does not lead to the conclusion that there has been a reasonable opportunity given to the plaintiff to show cause against the action proposed. Therefore, that is a very vital and serious infirmity which vitiates the punishment that has been imposed as against the plaintiff, namely, of removing him from service.

33. The views expressed by me so far conclude the case as against the appellant. I will also express my views regarding the points that have been raised in the memorandum of objections on behalf of the plaintiff-respondent by Sri P. Subramonian Potti, his learned Counsel.

34. The contention that the charges are vague need not detain this Court, because if the charges were really vague and if the plaintiff did not understand them, he could have certainly asked for further clarification at the hands of the authorities. There is nothing to show that the plaintiff made any such attempt and his participation in the inquiry without any protest clearly shows that he was fully aware of the nature of the allegations for which inquiry was being conducted. Therefore, I am not inclined to accept the contention of the learned Counsel for the plaintiff-respondent, that the proceedings are vitiated on the ground that the charges are vague.

35. I will also dispose of another contention that has been raised by the learned Counsel for the plaintiff-respondent, namely, that the order of dismissal in this case is by the District Superintendent of Police and not by the Inspector-General. So far as this is concerned, the learned Counsel for the plaintiff-respondent very strenuously attacked the endorsement contained is Ex. P. 6 under the signature of defendant 2 dated 2 March 1953. No doubt I have adverted to this aspect in connexion with another point that was raised by the learned Government Pleader. So far as the present contention is concerned, the finding of the learned Judge is that the order of dismissal was really passed by defendant 2 but communicated to the plaintiff by the District Superintendent of Police. have already referred to the fact that in Ex. P. 5 there is an endorsement by the District Superintendent of Police dated 2 March 1953 wherein it is stated that the plaintiff is removed from service with effect from 9 August 1952 and that it is issued by order of the Inspector-General.

36. Exhibit P. 6 is a note of an earlier date put up by the District Superintendent of Police dated 28 February 1953 suggesting that action by way of dismissal from service as against the plaintiff is to toe taken and the Inspector General makes an endorsement ' yes ' on 2 March 1953 and it is really on that basis that the farther order must have been issued on 2 March 1953 by the District Superintendent of Police. Therefore, that the order of dismissal was really passed by the Inspector-General is borne out by the records. But I have already pointed out in dealing with the second contention of the learned Government Pleader that the Inspector-General comes into the picture only in giving the stamp of approval to proceedings which have already been taken and that he was not a party to giving show-cause notice as is mandatory under such circumstances. Therefore, that contention of the learned Counsel for the plaintiff-respondent, that the order of dismissal was by the District Superintendent of Police, cannot certainly be sustained. But there is a more serious objection that has been raised by the learned Counsel for the plaintiff-respondent. That contention is that Ex. P. 5 will dearly show that the evidence discussed by the Assistant Superintendent of Police will not enable any reasonable tribunal to hold the plaintiff guilty of the charges for which he was tried.

37. No doubt the learned Government Pleader attempted his beat to satisfy this Court that the evidence discussed in Ex. P. 5 will really warrant the conclusions of guilt arrived at by the Assistant Superintendent of Police as against the plaintiff on the basis of which action has been taken.

38. I am not inclined to accept the contention of the learned Government Pleader having due regard to the nature of the charge that has been framed as against the plaintiff as well as the evidence that has been discussed by the enquiry officer.

39. The charge as against the plaintiff was that he is a member of a secret group of the Armed Reserve Police personnel of which the leader appears to be the head constable No. 4052 and that they were having secret meetings at which the head constable in question gave discourses on party organization and certain other matters. But while the charge is one of the plaintiff being a member of a group which was interested in subversive activities and propaganda, the evidence that has been discussed and taken into account by the Assistant Superintendent of Police will clearly show that there is absolutely nothing in that evidence to hold the plaintiff guilty of any subversive activities. No doubt there may be a strong suspision regarding the assembly of these persons. But the evidence of the witnesses does not establish any subversive activity on the part of the plaintiff.

40. On the other hand, that evidence is only to the effect that the conduct of a mess which appears to have been run in the Armed Reserve and the persons in charge of the management were being criticized by the plaintiff and certain others including the leader of this group, namely, head constable No. 4052. More than that, I am not able to find in that evidence which will enable any tribunal to come to the conclusion that the plaintiff was in any manner associated with any group interested in subversive activities. That evidence has been extracted in Ex. P. 5 and I have gone through every one of the statements made by the witnesses whose evidence has been taken into account by the enquiry officer.

41. The finding in Ex. P. 6 by the Assistant Superintendent of Police and the evidence of those witnesses clearly show that the plaintiff as a member of a secret group which was interested in promoting subversive activities is not at all borne out. Nor can it be stated that on the basis of that evidence any reasonable tribunal could have come to such a conclusion.

42. Inasmuch as I found considerable difficulty in sustaining the finding of the lower Court that the evidence adduced before the Assistant Superintendent of Police clearly establishes the guilt of the plaintiff, I put it to the learned Government Pleader whether evidence has been let in independently on behalf of the State during the trial of the suit to establish the truth of the allegation made as against the plaintiff. The learned Government Pleader frankly pointed out that, apart from the evidence that has been referred to earlier, no other independent evidence has been adduced by the parties in this litigation. I am not inclined to accept the finding of the learned District Judge that the evidence adduced before the Assistant Superintendent of Police on the basis of which findings of guilt have been no doubt recorded as against the plaintiff will establish misconduct as against the plaintiff,

43. If the charge of the plaintiff being involved in subversive activities vanishes quite naturally, it follows that there was absolutely no jurisdiction to take any action as and by way of imposing a punishment as against the plaintiff. If it is a question of misconduct being established, the nature of the punishment that is to be imposed, unless there are any rules governing the same, will certainly be a matter essentially for the authorities competent to impose the punishment. If misconduct is established, it will not be within the jurisdiction of this Court to hold that a lesser punishment or a different punishment should have been imposed. But in this case, the very basis for imposing the punishment, namely, the finding of misconduct as against the plaintiff, cannot certainly be sustained. Therefore, notwithstanding the fact that I am accepting to limited extent some of the contentions of the learned Government Pleader and I am rejecting some of the-contentions raised by the plaintiff-respondent inasmuch as there is no case of any misconduct established in this case, that goes to the root of the matter; the action taken as against the plaintiff will have to got the declaration prayed for that the order removing Mm from service is illegal and void. If that is so, he is also entitled to get the other declaration and reliefs that have been awarded in his favour an is laid down by the Supreme Court in State of Bihar v. Abdul Majid 1954-II L.L.J. 678. I make it clear that if the plaintiff is reinstated in service, as and from that date, he will be entitled, apart from previous salary, only to the salary due to him from that date, though no doubt lie will be entitled to the reliefs granted for the prior period under the decree of the lower Court. But from the date when he is reinstated, excepting his right to receive the salary, which is payable to him, he will not be entitled to claim also the sum of Rs. 50 which has been directed to be paid in the decree of the lower Court.

44. In the result, the appeal fail and is dismissed, end the decree of the lower Court is confirmed on other grounds also by allowing the memorandum of objections in part as mentioned in the judgment. Parties will bear their own costs.


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