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Gopalan Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ376Ker
AppellantGopalan
RespondentState of Kerala
Cases ReferredAshbridge Investments Ltd. v. Minister of Housing and Local Government
Excerpt:
.....14-8-1963 is perfectly valid. , the date on which he was originally placed under suspension by the district collector, kozhikode)'.the order of dismissal, like an order of suspension, is an executive order; and, like any other executive order, it does not, unless warranted by statute or contract, operate retrospectively: the order may, however, have certain consequences in monetary terms affecting the future as well as the past. his reinstatement on full exoneration would have secured him his back wages as well as promotions based on seniority. an order of dismissal deprives the employee of past as well as future benefits. so understood, these two decisions, if i may respectfully say so, do not conflict with the principle laid down by the supreme court as well as a full bench of this..........by virtue of the authorisation.7. i shall now read the relevant provisions of the c.c. and a. rules. rule 10(1) says.10. suspension, (1) the appointing authority or any authority to which it is subordinate or any other authority empowered by the government in that behalf may at any time place a government servant under suspension.the 'appointing authority' is defined under rule 2 as follows:2. interpretation: in these rules, unless the context otherwise requires,--(a) 'appointing authority' in relation to a government servant means--(i) the authority empowered to make appointments to the service, class or category of which the government servant is for the time being a member; or(ii) the authority empowered to make appointments to the post which the government servant for the time.....
Judgment:

Kochu Thommen, J.

1. Can retroactivity be ascribed to an order dismissing a Government servant, is one of the questions raised in this petition.

2. The petitioner was appointed as a Grama Sevak by the State Government of 5-3-1957. The 2nd respondent, the District Collector, Calicut, by his order dated 14-8-1968 suspended the petitioner pending enquiry. The suspension was ordered under Rule 10(1), of the Kerala Civil Services (Classification Control and Appeal) Rules, 1960 (C.C. and A Rules). Charges were framed on 14-9-1964 and an enquiry was conducted. The petitioner was dismissed by the District Collector by his order dated 19-12-1969 (Ext. P2). This order was challenged in appeal before the Government and the Government by order dated 24-1-1975 (Ext. P3) set aside the order of the District Collector on the ground that the Collector who was not the appointing authority had no jurisdiction to dismiss the petitioner. The Government ordered that the petitioner was deemed to have continued under suspension with effect from 14-8-1963, that is, the date on which he was originally suspended by order of the District Collector, and directed that a fresh enquiry be held against him. Fresh charges were accordingly framed against the petitioner by Ext. P4 dated 18-2-1975, and an enquiry was conducted. The Government by order dated 8-6-1976 (Ext. P6) dismissed the petitioner from service with effect from 14-8-1963 and directed that a sum of Rs. 5,511.85 be recovered from him being the loss sustained by the Government. A review of Ext. P6 sought by the petitioner was rejected by the Government by order dated 10-9-1976 (Ext. P8). Exhibits P3, P6 and P8 are challenged in this petition.

3. Counsel for the petitioner, Shri Bhaskaran Nambiar, submits that the impugned orders are unsustainable for various reasons. He says that Ext. P6 is not reasonably supported by any legal evidence. He alternatively submits that Ext. P6 is invalid as it operates retrospectively. Counsel further submits that Ext. P3 is void insofar as it says that the petitioner is deemed to have continued under suspension with effect from 14-8-1963. I shall deal with the first submission last.

4. Shri Nambiar points out that the supension order of the District Collector dated 14-8-1963 was a nullity as he had no jurisdiction to pass such order. The dismissal order of the District Collector (Ext. P2 dated 19-12-69) was rightly set aside by the Government by Ext. P3 on the ground that the District Collector had no jurisdiction. Since the District Collector kept the petitioner under suspension pending enquiry and passed the final order of dismissal without jurisdiction, the Government, counsel contends, had no jurisdiction to order by Ext. P3 that the petitioner was deemed to have continued under suspension with effect from 14-8-1963. Counsel says that the Government had no authority to suspend the petitioner retrospectively unless such authority was derived from statute. The only statutory provision to that effect, is Rule 10(4) which, counsel says, has no application when the original order of suspension by the District Collector was a nullity. The question is, was it so?

5. The Government Pleader submits that the petitioner did not challenge the suspension order of the District Collector. Nor did the petitioner challenge Ext. P3 dated 24-1-1975 until the Government passed Ext. P6 dated 8-6-1976 whereby the petitioner was finally dismissed. He submits that, in the circumstances, it is not open to the petitioner to question the validity of Exts. P3 and P6 on the ground or retroactivity.

6. The Additional Advocate-General, appearing at the request of the Court--I wish to record my appreciation for the able assistance rendered by him--submits that it is not correct to say that the District Collector is not the appointing authority. It is true, he says, that on the date on which the petitioner was appointed by the Government the District Collector had no authority to make an appointment to the post to which the petitioner was appointed. However, by subsequent order of the Government, the District Collector was authorised to make appointments to that post, and on the date of the suspension of the petitioner the District Collector was an appointing authority by virtue of the authorisation.

7. I shall now read the relevant provisions of the C.C. and A. Rules. Rule 10(1) says.

10. Suspension, (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may at any time place a Government servant under suspension.

The 'appointing authority' is defined under Rule 2 as follows:

2. Interpretation: In these rules, unless the context otherwise requires,--

(a) 'Appointing Authority' in relation to a Government servant means--

(i) the authority empowered to make appointments to the Service, Class or Category of which the Government servant is for the time being a member; or

(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds;

* * * * *(iii) the authority which appointed the Government servant to such service, class, category or post, as the case may be; or

(iv) where the Government servant having been a permanent member of any other service, class or category or having substantively held any other permanent post, has been in continuous employment of the Government the authority which appointed him to that service, class or category or to that post, whichever authority is the highest authority.

Rules 13 and 15 refer to the appointing authority for the purpose of imposing certain penalties, including the penalties of dismissal and removal. The expression 'appointing authority' has come to be considered by the Supreme Court in the context of disciplinary proceedings contemplated under Article 311 of the Constitution. Article 311 says:

311. (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.* * * * *

The Supreme Court pointed out that a Government servant had a constitutional right not to be dismissed or removed from service except by an order of the authority which appointed him or which was equivalent to or coordinate in rank with that authority. An order of dismissal or removal by any other authority is violative of Article 311 of the Constitution. Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg : (1977)ILLJ262SC and Krishan Murari Lal Sehgal v. State of Punjab : (1977)ILLJ442SC .

8. The expression 'appointing authority', as it appears in the relevant C. C. and A Rules, such as Rules 2, 13 and 15, has, in relation to the imposition of the penalty of dismissal or removal, to be construed as an authority which appointed the Government servant or an equivalent or co-ordinate or higher authority. This interpretation is warranted by Article 311 of the Constitution. But there is no such restriction on the construction of the term 'appointing authority ' in relation to Rule 10 which deals with suspension.

9. The definition of 'appointing authority' as seen above, is contained in the four clauses of Sub-rule (a) of Rule 2. For the purpose of punishment involving dismissal or removal, the appointing authority is that which is mentioned under Clause (iii) or Clause (iv), as the case may be, namely, the authority which appointed the Government servant. These two clauses alone, owing to the constitutional embargo under Article 311, apply to such punishment. Suspension contemplated under Rule 10(1) does not, however, attract the embargo, and the appointing authority who is empowered to place a Government servant under suspension in terms of Rule 10(1) is, therefore, not necessarily the authority defined under Clauses (iii) and (iv) of Sub-rule (a) of Rule 2, but any one of the four authorities mentioned under that sub-rule. In the instant case, the District Collector squarely fell within Clause (ii) as he was at the time of the order of suspension, i.e., 14-8-1963, the competent authority to make appointment to the post which the petitioner held on that date.

10. I shall now read Rule 10(4) which is the provision whereby Exts. P3 and P6 are sought to be made retroactive:

Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

11. The object of this provision is to revive the order of suspension and keep it alive as from the date of the original order of dismissal. If this clause operates in the present case, as it must suspension is deemed to have continued in force as from 19-12-1969 which is the date on which the petitioner was first dismissed by order of the District Collector. Ordinarily an order of suspension lapses when the order of dismissal is made and the setting aside of the latter does not revive the former. (H.L. Mehra v. Union of India : [1975]1SCR138 ). The purport of Rule 10(4) is to achieve that object which is otherwise not possible.

12. The order of suspension dated 14-8-63 was validly made by the District Collector who, as noticed above, was the appointing authority for the purpose of suspension (though not dismissal) as he was on that date duly authorised to make appointments to the post which the petitioner held. Accordingly, the suspension is, in terms of Rule 10(4), deemed to have continued in force as from the date of the original order of dismissal.

13. Exhibit P3 is, therefore, perfectly capable of being retrospective, and it cannot be challenged on that score. It is, however, contended that it is projected backward further that the permissible limit set by Rule 10(4), which says that ' the order of his suspension shall be deemed to have continued on and from the date of the original order of dismissal' It is true that the permissible limit of retroactivity under Rule 10(4) is the date of the original order of dismissal which in this case is 19-12-69. However, as I stated earlier, the order of suspension validly operated from 14-8-1963 until it lapsed with the passing of the dismissal order of 19-12-1969. Although the order of suspension thus ceased to exist on 19-12-1969, it is deemed to have continued as from that date by virtue of Rule 10(4). The continuity of the suspension which commenced on 14-8-1963 is thus preserved by the statutory fiction, as a result of which, the petitioner is deemed to have been under suspension from 14-8-1963 till 8-6-1976 when he was finally dismissed by Ext. P6 order. That being the case, Ext. P3 which says that the petitioner shall be deemed to have continued under suspension with effect from 14-8-1963 is perfectly valid.

14. One of the grounds of challenge against Ext. P6 dated 8-6-1976 is that the order is retroactive insofar as it says that the petitioner is ' dismissed from service with effect from 14-8-1963 (i.e., the date on which he was originally placed under suspension by the District Collector, Kozhikode)'. The order of dismissal, like an order of suspension, is an executive order; and, like any other executive order, it does not, unless warranted by statute or contract, operate retrospectively: See the principle stated by the Supreme Court in The Income-tax Officer, Alleppey v. M.C. Ponnoose : [1970]75ITR174(SC) ; N.C. Singhal v. Director General, Armed Forces, Medical Services, New Delhi : (1972)ILLJ249SC and by a Full Bench of this Court in T.C. Sreedharan Pillai v. State of Kerala (1973) K.L.T. 151, 176 (F.B.), para 46. I have not been referred to any statute or contract which either expressly of by necessary implication allows the Government to dismiss the petitioner retrospectively. A punishment operates from the date of the order and it has, unless the law provides otherwise, no backward operation. An employee can be suspended or dismissed from service only with effect from the date of the order unless the contract of employment or the relative statute provides that the order can operate retrospectively. The order may, however, have certain consequences in monetary terms affecting the future as well as the past. In that limited sense it may be correct to say that an order of dismissal may have a retrospective effect, although it operates only prospectively.

15. Where the contract of service or the statute governing such contract provides for suspension pending enquiry, the contract of employment, during the period of suspension, is temporarily suspended; during that period the mutual duties and rights, including the right of wages, are suspended. (V.P. Gindroniya v. State of Madhya Pradesh-- : (1970)IILLJ143SC ; The Management, Hotel Imperial, New Delhi v. Hotel Worker's Union-- : (1959)IILLJ544SC ; Halsbury's Laws of England, III Edn. pp. 518-19). Such temporary suspension of the contract does not put an end to the vinculum juris between the master and the servant. The relationship between the two continues, notwithstanding the temporary sus pension of their rights and obligations under the contract. But an order of dismissal puts an end to the order of suspension. As stated by the Supreme Court in H.L. Mehra v. Union of India : [1975]1SCR138 :

Now, when an order of dismissal is passed, the vinculum juris between the Government and the servant is dissolved: the relationship of master and servant between them is extinguished. Then the order of suspension must a fortori come to an end.

16. Rule 54 of the Kerala Service Rules, Part I (K.S.R.) says that the pay and allowances of an officer who is dismissed or removed from service cease from the date of such dismissal or removal. Dismissal or removal is thus treated as prospective. Rule 55 provides for payment of subsistence and other allowances to an officer under suspension. Rule 56 says:

56. (1) When an officer who has been dismissed, removed, retired compulsorily or suspended, is reinstated or would have been reinstated but for his retirement on superannuation while under suspension or when an officer who has been suspended has retired from service on superannuation before the conclusion of the disciplinary proceedings initiated against him. the authority competent to order the reinstatement of the authority who initiated the disciplinary proceedings shall, after orders have been passed on the disciplinary proceedings, consider and make a specific order:

(a) regarding the pay and allowances to be paid to the officer for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation, as the case may be; and

(b) Whether or not the said period shall be treated as a period spent on duty.

(2) Where such competent authority holds that the officer has been fully exonerated or, in the case of suspension that it was wholly unjustified, the officer shall be given the full pay to which he would have been entitled had he not been dismissed, removed, compulsorily retired or suspended, as the case may be, together with any allowances of which he was in receipt period to his dismissal, removal or suspension.

(3) In other cases, the officer shall be given such proportion of such pay and allowances as such competent authority may prescribe;

* * * * *(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under Clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose:* * * *

These provisions indicate that, if at the end of an enquiry the officer is fully exonerated, or his suspension is found to have been wholly unjustified, he would be entitled to receive full payment of what he would have received had he not been kept out of work. Conversely if the result of the enquiry is wholly unfavourable to him as a result of which he is dismissed the officer would have to forego all monetary benefits other than what was payable to him as allowances during the period of his suspension. In this sense the order of dismissal which operates from the date of the order drastically affects the purse of the employee for the past, present and future. If he had been fully exonerated, he would not only have been reinstated, but also his contract of service, which remained under suspension, would have been reanimated. His reinstatement on full exoneration would have secured him his back wages as well as promotions based on seniority. Such reinstatement would have annulled the order of suspension as a result of which the contract would have revived itself in full force, and he would have been deemed to be on duty during the period of his suspension. Reinstatement in principle operates prospectively; the fully exonerated employee is placed at the position which he would have reached had he not been kept out of work. This is what is accomplished under the K.S.R. The dismissal on the other hand, has denied him all this, and has thus affected his purse not only prospectively but retrospectively. To say this, however, is not to attribute retroactivtity to an order of dismissal any more than to an order of reinstatement, although in either case the consequences flowing from the order affect the past.

17. If an order of dismissal is not preceded by an order of suspension, the dismissal would have no effect on the employee for the period preceding the date of the order. He had been working and earning his wages until the date of dismissal. There was no suspension of the mutual rights and obligations of the parties. It is only where the employee was kept under suspension before the dismissal that the dismissal, though not retrospective, affects the employee for the anterior period.

18. It is in this sense that I understand the decisions of this Court in Venkiteswaran v. State of Kerala (1963) K.L.T. 1097, and Narayana Murthi v. State of Kerala (1964) K.L.T. 180. In the latter case, the Division Bench stated:

Cases of dismissal of officers, suspended pending enquiry and subsequently found delinquent, with retrospective effect from the date of their suspension are so numerous that it is now assumed as implied in an order of suspension that in case the charges are found true the officer is likely to be dismissed as from the date of his suspension. In the show cause notice, Ext. P7, the appellant has been expressly told of the Government's proposal to dismiss him with effect from the date he was placed under suspension. He took no exception to the order being made retrospective.

This Court in those two cases was moved by mainly two consderations. An order of dismissal deprives the employee of past as well as future benefits. An order of reinstatement restores those benefits to him. The petitioner in the latter case had been specifically told by a show-cause notice that he was to be dismissed with effect from the date of his suspension, and he did not raise any objection to such an order being made. Such a person was not entitled to the discretionary remedy under Article 226 of the Constitution. So understood, these two decisions, if I may respectfully say so, do not conflict with the principle laid down by the Supreme Court as well as a Full Bench of this Court, namely, an executive order, unless warranted by statute or contract, does not operate retrospectively: The Income-tax Officer, Alleppey v. M.C. Ponnoose, J. : [1970]75ITR174(SC) ; M.C. Singhal v. Director General, Armed Forces, Medical Services, New Delhi : (1972)ILLJ249SC and T.C. Sreedharan Pillai v. State of Kerala (1973) K.L.T. 151 at 176 (F.B). In this connection it may be noticed that the consistent view of the High Court of Calcutta appears to have been against retrospectivity being ascribed to dismissal orders. (Satyendra Kumar Datta v. District Board of 24 Parganas ); Sudhir Ranjan Haider v. State of West Bengal : (1961)IILLJ283Cal ; Surendra Nath Shukla v. Indian Airlines Corporation 1966-I L.L.J. 201; Nepal Chandra Guchait v. District Magistrate, Murshidabad 1966-I L.L.J. 71.

19. I am accordingly of the view that Ext. P6 operates only prospectively, i.e. from 8-6-1976; but the petitioner, who had remained under suspension till the order of dismissal dated 8-6-1976, is not entitled to claim for the period of suspension, anything other than what is allowed under the relevant rules.

20. As regards Shri Nambiar's attack on Ext. P6 on merits, it has to be stated that under Article 226 of the Constitution this Court would not interfere with an order based on the finding of an enquiry Tribunal except on very limited grounds, one of them being--(and that is the only ground urged by counsel in this context)--that the decision is not reasonably supported by evidence. An order without any evidence, in the sense that it is not reasonably supported by evidence, is unsustainable. Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, 1326. I have been taken through the order and I am not able to see that it is vitiated by that error. On the basis of the relevant evidence on record the enquiry officer came to the conclusion that the charges were well-established. It is on the basis of such finding that Exts. P6 and P8 rest. In the circumstances I see no substance in the challenge against Ext. P 6 or Ext. P8 on merits.

21. The effect of declaring Ext. P6 in the manner in which I have done is that the petitioner had remained in service--albeit under suspension--from 5-3-1957 to 8-6-1967. To what relief, if any, the petitioner would be entitled under the relevant rules in monetary terms on the basis of this declaration, I do not wish to express any view at this stage, apart from stating that it will be open to the petitioner to approach the Government by appropriate representation.

22. There is one more question which I should like to mention before disposing of this petition. That is the direction in Ext. P6 to recover a sum of Rs. 5,511.85 from the petitioner. The Government Pleader fairly submits that no recovery will be made except in accordance with the provisions of the Kerala Public Accounts Act, 1963. This is recorded. This Act provides for notice and opportunity to the petitioner to raise objections, if any, in regard to the computation of the amount and connected matters.

23. In the light of what is stated above, the original petition is disposed of. I do not make any order as to costs.


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