I.N. Modi, J.
1. These are three connected appeals and arise out of the same facts, which have been the subject-matter of two separate suits filed by the same plaintiff Jaiwant Rao against the defendant State. Appeal No. 292 of 1953 has been filed by the plaintiff and arises out of suit No. 206 of 1954. The remaining two appeals Nos. 173 and 569 of 1962 arise out of suit No. 25 of 1957, and of these, the former has been filed by the plaintiff and the latter by the defendant State. I propose to dispose of all these three appeals by a single judgment.
2. The basic facts out of which these appeals arise are practically admitted or proved. The plaintiff Jaiwant Rao originally belonged to the service of the covenanting State of Kotah as it then was. When that State was integrated with the first United State of Rajasthan in 1948, he held the post of a Supervisor of the Opium Factory at Kotah having been appointed to it by an order dated the 10th November, 1948, It seems that the plaintiff was designated as Superintendent, Customs and Excise, Opium Factory, Kotah, at the time with which we are concerned. On the 7th May, 1949, he proceeded on ten days' casual leave. Before going on this leave, he had applied for six months' privilege leave to the Commissioner, Customs and Excise, Udaipur. This leave was, however, not sanctioned.
It may also be mentioned at this place that the plaintiff had in the meantime been transferred from Kotah to Sironj by an order dated the 9th April, 1949. But somehow he did not hand over charge of his post at Kotah for some time and he did so only on the 6th of May, 1949, and then proceeded on ten days' leave on the 7th May, 1949, without carrying out the order of his transfer. An explanation was called from him and it having been considered unsatisfactory he was straightway dismissed by an order of the Commissioner, Customs and Excise dated the 28th October, 1949, Ex. 20.
The plaintiff then preferred an appeal from that order to the State Government. By an order dated the 26th December, 1950 (Ex. 23) the order of dismissal was setaside as it was obviously illegal having been passed without any inquiry being made into the conduct of the plaintiff, and it was further ordered that he be suspended forthwith and a departmental inquiry be started, against him. Thereafter the Commissioner Kotah Division Kotah (Shri Gordhan Singh) was appointed as Inquiry Officer to make the departmental enquiry against him. The plaintiff was served with a charge-sheet, and an inquiry was made into the charges levelled against him, and it was found that some of the charges were proved against him and so by an order (Ex. 25) dated the 24/26th September, 1951 he was discharged from Government service from the 26th December, 1950, that is with effect from the date he was suspended by the State Government after consultation with the State Public Service Commission.
It may also be mentioned here that by an order of the Deputy Commissioner Customs and Excise dated the 8th July, 1952 (Ex. 29) the period from 7th May, 1949, upto the 7th November, 1949, being a portion of the period during which the plaintiff was absent from duty was treated as leave without pay and allowances. The plaintiff then gave the requisite statutory notice under S. 80 of the Code of Civil Procedure to the State and instituted suit No. 206 of 1954 in the Court of the Civil Judge, Kotah.
3. The allegations on which this suit was founded were that the plaintiff had not been served with any notice under Article 311 of the Constitution against the order of discharge or removal passed against him, and, therefore, that order was entirely illegal, void and inoperative, and further that the inquiry which was made against him was not in accordance with Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, (hereinafter referred to as the Rajasthan Service Rules) which was, therefore, of no effect in law. The plaintiff, therefore, prayed for a declaration that the order dated the 24/26th September, 1951 (Ex. 25) discharging him from service was illegal and ineffectual in law, and, therefore, he still continued in the service and he further prayed for arrears of his salary amounting to Rs. 9160/- from the 7th November, 1949, to the 20th April, 1954, the details of which were mentioned in paragraph 25 of the plaint and need not be repeated here. This suit was filed on the 16th November, 1954.
4. The defendant State resisted the suit. During the course of the trial, however the State by its order dated the 15th July, 1955, Ex. 31, again set aside the order of discharge dated the 24/26th September, 1951. It was further ordered, that the plaintiff would continue to be under suspension as hithertofore, and that during the suspension period he would draw a subsistence allowance at the rate of one-fourth of his pay (Ex. 32). This order seems to have been passed as it was realised by the State that a second notice under Article 311 of the Constitution asking the plaintiff to show cause why the punishment of discharge or removal which was sought to be inflicted on him be not passed had not been given.
Thus it was by Ex. A-2 dated the 15th July, 1953, that a show-cause notice was given to him and a copy of the report of the Inquiry Officer, namely, the Commissioner, Kotah Division, Kotah was sent to him, and he was further informed that charges Nos. 1, 3 and 4 mentioned in the charge-sheet (Ex. 22) had been found to be proved, and why the action proposed to be taken against him, namely, his discharge from service, be not resorted to. On the 23rd July, 1955, the plaintiff protested that the State should not interfere with a matter which was already sub judice ina Civil Court. He also contended in his explanation that his case had been inquired into not by the Commissioner Kotah Division Shri G. S. Mehta but by the Additional Commissioner Shri Bhagwat Dutt Thakur and that a copy of the latter's report should have been sent to him.
5. Be that as it may, by an order dated the 15/16th June, 1956 (Ex. 35), the plaintiff was informed by the Special Secretary to the Government of Rajasthan that the Government had considered his explanation along with the report of the Inquiry Officer and had come to the conclusion that charges Nos. 1, 3 and 4 (specified in the charge-sheet Ex. 22) framed against him had been proved, and, therefore, on the advice of the Rajasthan Public Service Commission, he was being discharged from Government service with effect from the 26th December, 1950. This did not, however, prove to be the end of the matter because the Government felt impelled to issue yet another order on the 18th December, 1956 Ex. 37. This order runs as follows :
'In partial modification of this department order No. 2754/56 F.9 (11) Apptts. (A)/50 dated 16-6-1956, Government have been pleased to order that your discharge from service shall take effect from the date of the order, viz., 16-6-1956 instead of 26-12-1950.'
6. This culminated in the institution of suit No. 25 of 1957 by the plaintiff, in this suit, he again contended that the inquiry made against him was not in accordance with law, and the contentions which are relevant for the purposes of the two appeals which have been filed before this Court arising out of this suit are:
(1) that Shri Bhagwat Dutt Thakur had no authority to make any inquiry into the charges levelled against the plaintiff;
(2) that in any case the report filed by Shri Thakur had not been made available to him;
(3) that in the inquiry which was made by Shri Thakur, he was not allowed to produce and examine his own witnesses or cross-examine those produced by the department, and
(4) that after the Government had cancelled the order dated 24/26th September, 1951 Ex. 25, by its order dated the 15th July, 1955, Ex. 31, no further inquiry had at all been made into the conduct of the plaintiff, and, consequently, the action taken against him by means of the subsequent orders was without any proper foundation.
The plaintiff further contended that in addition to the arrears of salary which were covered by his earlier suit for the period from 7th November, 1949 to the 20th April, 1954, he was further entitled to his full salary from the-21st April, 1954, to the 18th April, 1957, amounting to Rs. 7738/12/6. Furthermore, it was prayed that the order dated the 18th December, 1956, by which he was ordered to be discharged from the 16th June, 1956, was altogether void, illegal and inoperative, and that it be declared that the plaintiff was still in service and also that the order dated the 15th July, 1955, did not and could not have the force of suspending him from service either retrospectively or prospectively. This suit was filed in the Court of Civil Judge, Kotah on the 8th July, 1957.
7. In this suit the defence taken up by the State was that it had appointed the Commissioner Kotah Division as Inquiry Officer and that the said Officer had entrusted the recording of evidence in the inquiry to the Additional Commissioner, Kotah Division, and that the Government had confirmed the procedure adopted by the Commissioner, and further the Commissioner had gone into the inquiry papersand the arguments of the plaintiff addressed to him and then submitted his report and the Government had passed the order discharging the plaintiff after considering this entire material, and, therefore, there was nothing wrong with the inquiry made against the plaintiff.
It was also pointed out that before Shri Thakur, to whom the recording of the evidence had been made over by the Commissioner, the plaintiff had expressed his desire to produce three witnesses in his defence and the department had produced one witness, and all this evidence had been recorded by Shri Thakur, including the cross-examination of the departmental witness by the plaintiff, without any objection by the plaintiff.
It was further urged that after the order of discharge dated the 24/26th September, 1951 (Ex. 25) was set aside by the Government by its order dated the 15th July, 1955, Ex. 31, it was not necessary to start a 'de novo' inquiry from the very beginning and there was nothing wrong in that inquiry except that a second notice as respects the punishment which was proposed to be awarded to the plaintiff had not been given under Clause 2 of Article 311. A show-cause notice was then ordered to be given vide Ex. 32, and this was enough to fulfil the purposes of the Rajasthan Service Rules or Article 311 of the Constitution. It was further contended that the plaintiff was in no case entitled to the arrears of salary and allowances claimed by him.
8. I now take up appeal No. 292 of 1958 first, which arises out of the first suit No. 206 of 1954. Both Courts below have held that the order dated 24/26th September, 1951 (Ex. 25) discharging the plaintiff from Government service from the original date of suspension, that is, the 26th December, 1950, was treated by the Government itself as null and void inasmuch as it had cancelled that order by its subsequent order Ex. 31 dated the 15th July, 1955. That order has, therefore, been pronounced to be of no effect. Both Courts below have thus allowed the plaintiff full salary plus dearness allowance for the period extending from the 7th November, 1949, to the 25th December, 1950, and while the Trial Court passed a decree under this head for a sum of Rs. 2118/- the District Judge reduced it to Rs. 2061/- as there was an error in the calculation made by the Trial Court which is indeed a minor matter and has not been questioned before this Court.
As regards the question whether the plaintiff should be regarded under suspension from the 26th December, 1950, to the 20th April, 1954, the Trial Court seems to have held that the Government had the authority to suspend its employees with retrospective effect; but the learned District Judge in appeal held that the Government had no such power. And yet the learned District Judge seems to have thought that as the Government while setting aside the order of discharge dated the 26th September, 1951, simultaneously directed that the plaintiff would continue under suspension as hithertofore, the resultant position was that although the order of discharge was set aside, the suspension still continued in force as before. And in this view of the matter, the learned Judge held that the plaintiff would continue to remain under suspension from the 26th December, 1950, to the 20th April, 1954, and was entitled to only subsistence allowance for that period and not to his full salary for the same. Both Courts have accordingly passed a decree for Rs. 2192/- in this regard though for different reasons. The plaintiff alone has come up in appeal against the judgment and decree of the learned District Judge, and the defendant State has not challenged them in this Court.
9. The only question which emerges for determination in this appeal, therefore, is whether the conclusion of the Courts below that, on the facts and circumstances set out above, the plaintiff remained under suspension from the 26th December, 1950, to the 20th April, 1954, and, therefore, was only entitled to a subsistence allowance for that period is well-founded or the order of suspension cannot be maintained so far as this period is concerned and he is entitled to his full salary for the same.
10. It is well to remember in this connection that the plaintiff was first dismissed from service, vide Ex. 20, on the 28th October, 1949. This order was then set aside on the 26th December, 1950 (Ex. 23) and a proper departmental inquiry was ordered against him and he was also suspended from the same date, that is, the 26th December, 1950. Thereafter by an order dated the 24/26th September, 1951 (Ex. 25) the plaintiff was discharged from service with effect from the date of suspension that is 26th December, 1950. This order of discharge was again set aside by an order dated the 15th July, 1955, Ex. 31, though it was directed by this order that the order of suspension would continue as hithertofore from the 26th December, 1950.
The correct position, therefore, was that the order ofdischarge dated the 24/26th September, 1951, was of no force whatever. The further question is whether the order of suspension remained in force. When the order of discharge (Ex. 25) was passed on the 24/26th September, 1351, the order of suspension passed on 26th December, 1950, was merged in that order, and it could have no separate existence thereafter. The order of 24/26th September, 1951 was in its turn also set aside by the Government by Ex. 31 dated the 15th July, 1955. It is correct that this order again stated that the plaintiff would be treated as under suspension from 26th December, 1950. But the question is whether a retrospective order of suspension could be passed under the circumstances.
11. One answer to this question, in my judgment, is provided by the final order of discharge passed by the Govt. D/- 18-12-56, by which it was ordered that the discharge should take effect from the 16th June, 1956, instead of 26th December, 1950. The other answer is that on the 15th July, 1955, the Government had no authority to pass a retrospective order of suspension with effect from the 26th December, 1950, in the absence of any statutory authority to do so, which order of suspension had merged in th3 order of discharge passed on the 24/26th September, 1951, and could not thereafter survive.
The order of suspension dated the 15th July, 1955, could not therefore have any retrospective effect. Reference may be made in support of this view to Probodh Chandra v. Executive Engineer, (S) AIR 1956 Cal 447. The facts of this case were that the petitioner was placed under an order of suspension on the 27th July, 1949. Then after a departmental inquiry he was discharged from service on the 23rd February, 1953. The order of discharge was held to be illegal and set aside by the High Court in a proceeding under Article 226 of the Constitution. Thereafter on the 1st July, 1954, the authority concerned informed the petitioner that he will be treated as under suspension from the 23rd February, 1953. The petitioner was eventually dismissed from service, and he again moved the High Court. It was held that the order of suspension dated the 27th July, 1949, was merged in the order of discharge dated the 23rd February, 1953, and could not be revived when the order of discharge was set aside by the High Court.
It was further held that if the order dated the 1st July, 1954, was considered a fresh order, it was bad because itgave effect to suspension retrospectively. Reliance was placed in coming to the conclusion on a decision of their Lordships of the Supreme Court in Omprakash Gupta v. State of Uttar Pradesh, (S) AIR 1955 SC 600.
12. The facts in the case before the Supreme Court were these. The appellant who was a member of the United Provinces Civil (Executive) Service was suspended on 23rd August, 1944, pending enquiry into his conduct. The Commissioner Lucknow Division after having made the enquiry submitted the papers to the Government on the 30th September, 1944. By an order dated 25th November, 1944, the Government dismissed the appellant, which order was served on him on the 1st December 1944. During the period of suspension, the appellant was paid subsistence allowance at the rate of one-fourth of his salary. The appellant then filed a suit for a declaration that the order of his dismissal was illegal and inoperative and that he still continued to be in his service entitled to full pay.
The Trial Judge declared the order to be illegal but did not allow any decree for arrears of salary. The High Court upheld that decree. One of the questions raisad before the Supreme Court was whether the order of suspension was valid and whether during the period it was in force, that is, from 25th November, 1944, to 31st December, 1947, the appellant was entitled to recover any arrears of salary. On this question, their Lordships observed that with the order of dismissal
'the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist ...... The subsequent declaration by a CivilCourt that the order of dismissal was illegal could not revive an order of suspension which did not exist.'
It was, therefore, held that the appellant was entitled to recover the arrears of salary for the period of suspension, that is, from 25th November, 1944, to 31st December, 1947.
13. The correct position in law, therefore, is that where an order of suspension pending a departmental enquiry is succeeded by and thus gets merged in the order of discharge and the order of discharge subsequently happens to be set aside either by a Court of law or by a departmental authority competent to do so, then the order of suspension cannot be revived for it does not exist at all, and the further position is that a fresh order of suspension cannot be passed so as to have a retrospective effect in the absence of any statutory authority to do so. Whether such an order can have a prospective effect is an entirely different matter and I propose to deal with that question at the proper place.
14. Confronted with this situation, the learned Deputy Government Advocate frankly conceded that so far as the plaintiff's claim for arrears of salary in the first suit 's concerned, that is, as respects the period of suspension from the 26th December, 1950, to the 20th April, 1954, he was entitled to his full salary. On this view it has been agreed before me that the plaintiff would be entitled to a total salary of Rs. 9160/- less the sum of Rs. 4253/-already allowed to him as subsistence allowance for the period under discussion. I hold accordingly. This disposes of the plaintiff's appeal in suit No. 206 of 1954.
15. I now take up the cross-appeals in the other suit. In this suit, both Courts below have, in the first place, held that the inquiry made against the plaintiff was perfectly proper. In the second place, while the Trial Court held that the plaintiff was properly placed on suspension till the 16th June, 1956, right from the 26th December, 1950, thelearned District Judge has held that the plaintiff should be deemed to be in service up to the 15th July 1955, on which date the discharge order of 24/26th September, 1951 was set aside and that the suspension order would take effect from the 16th July, 1S55, to the 15th June, 1956, but as according to the learned Judge the order of discharge could not be passed retrospectively and as the order of the 15th June, 1956, was again followed and set right by an order of the 18th December, 1956, he wag again entitled to get his full pay from the 16th June, 1956, to the 18th December, 1956.
Both parties have appealed from the decree of the District Judge. The appeal of the plaintiff is to the effect that he should have been allowed his full pay from the 16th July, 1955 to the 15th June, 1956, amounting to Rs. 2409.56 nP., while the appeal of the defendant State is that the plaintiff should not have been allowed any pay for the period extending from the 16th June, 1956, to the 18th December, 1956, amounting to Rs. 1358.55 nP.
16. Turning to the plaintiff's appeal first, it was strenuously argued before me that the inquiry made against the plaintiff was opposed to Rule 16 of the Rajasthan Service Rules and Article 311(2) of the Constitution, and, therefore, the order of the plaintiff's discharge was illegal, void and inoperative.
17. The main points on which learned counsel relied in this connection are these : In the first place, it was contended that the Commissioner, Kotah Division, was appointed as the Inquiry Officer to conduct the departmental inquiry against the plaintiff and yet the inquiry had been entrusted by that officer to Shri B. D. Thakur who had no authority to make the inquiry in the sense that he could have recorded the statements of the witnesses and submitted his report. It was further contended that a copy of Shri Thakur's report which was alleged to be in his favour had never been supplied to him. It was also contended that he was not allowed to examine his own evidence before Shri Thakur and that witnesses produced by the other side were not examined in the plaintiff's presence and he was not allowed to cross-examine them. Reliance was placed in support of this submission on Amulya Kumar v. L M. Bakshi, AIR 1958 Cal 470.
18. I have carefully considered this contention and have not felt persuaded to accept it as sound. It is correct that the Commissioner, Kotah Division, was appointed as the Inquiry Officer in this case. It was he who submitted his report Ex. 33 to the Government. It appears from his report that the Commissioner had considered the detailed explanation which was filed by the plaintiff in reply to the charges levelled against him and this fact has not been controverted. It does appear to be true however that the Commissioner who was the Inquiry Officer had entrusted the recording of evidence to the Additional Commissioner Shri B. D. Thakur. The plaintiff's allegation is that Shri B. D. Thakur had also submitted his report to the Commissioner and that his report had never been made available to him, though it is not his case that the report of the Inquiry, Officer was not made so available.
So far as the allegation of the plaintiff that his evidence was not recorded by Shri B. D. Thakur or he was not allowed to cross-examine the evidence produced on behalf of the department, it was frankly conceded before me by his learned counsel that this complaint was groundless, and that all the witnesses who were sought to be produced by the plaintiff before Shri B. D. Thakur were examined by him, and the single departmental witness who was produced on the other side was also allowed to be cross-examined. In those circumstances, the short point for consideration is whether the Commissioner could have got the statements of witnesses recorded by the Additional Commissioner, and, if not, whether this irregularity by itself is enough to vitiate the entire inquiry.
19. Now, as a rule, I should, be very loath to encourage a procedure like the one adopted in this case, namely, that the person who is appointed as Inquiry Officer should allow evidence which may be produced in the case to be recorded by another officer and not do so himself. For such a procedure is likely to lead to abuse and failure of justice, particularly in cases where the decision of the inquiry rests wholly or largely on oral evidence. The present case, however, was not of that type. The allegations against the plaintiff were simple enough, to wit that he had overstayed his leave and that he had not carried out Government orders relating to handing over charge of his post at Kotah and had also not carried out the order of his transfer to Sirenj, and these were sought to be proved substantially by documentary evidence. It has also been brought to my notice that the Government had confirmed the procedure followed in this case and this is not controverted.
But, altogether, apart from that, it seems to me that the correct test to adopt on a question like this is whether the procedure adopted by the Inquiry Officer has led to any prejudice or not. For, In my respectful judgment, that is the fundamental yardstick by which the effect of any irregularities arising during the course of a departmental inquiry must fall to be judged as Indeed that is the main criterion adopted in the case of irregularities committed during the course of well-regulated judicial trials under the Civil or the Criminal Procedure Code. And judging by this test, my finding in the first instance is that accepting that there was an irregularity committed in this case, that irregularity was waived by the plaintiff himself inasmuch as he never raised any protest against the recording of evidence by Shri B, D. Thakur which he might well have done. And in the second place, it has not been at all shown how the alleged irregular recording of the evidence in the present case has caused any prejudice to the plaintiff in the circumstances discussed above.
20. So far as the case reported as AIR 1958 Cal 470, (supra) which is strenuously relied on by learned counsel, goes, that case undoubtedly lays down that if the enquiring authority has the duty to come to a conclusion as to the guilt of the delinquent upon an evaluation or assessment of the evidence, then it is entirely necessary that he should be the person who should hear the evidence of the witnesses. It further holds that it is impossible to evaluate the evidence of a witness taken on proxy, because one of the salient features In such a proceeding is to observe the demeanour of the witness, and that in 'such a case it is wholly improper for the enquiring authority to delegate the task of hearing witnesses to someone else and then decide the case upon the mere record of the evidence. But on a careful perusal of this case, I am unable to hold that the learned Judge was laying down a universal proposition which would apply to all departmental inquiries without exception, and it clearly seems to me that he intended to confine his observations to that type of case where the decision would largely or substantially depend on oral evidence. That case is, therefore, entirely distinguishable on facts, and furnishes no correct guidance for the purposes of a case like the present which, if I may say so, was perfectly simple and depended not on oral evidence but almost wholly on documentary evidence. This point, therefore, falls and is hereby repelled.
21. The next point of substance which was pressed before me in this connection was that when the State Government cancelled the order of discharge Ex. 25 dated the 24/26th September, 1951, by its order Ex. 31 dated the 15th July, 1955, a fresh de novo inquiry should have been held from the very start and that the failure to do so has vitiated the entire subsequent proceedings. I regret, I can see no substance in this contention. When the order Ex. 25 came to be passed, an inquiry had already been made, and what had not been done was that a second show-cause notice as required by Article 311(2) of the Constitution was not given to the plaintiff as to what he wanted to say with respect to the punishment of discharge which was proposed to be awarded to him and, therefore, the order Ex. 31 dated the 15th July, 1955, was passed by which the earlier order was cancelled and a second show-cause notice was ordered to issue.
But from this, it is impossible to jump to the conclusion that the State Government had quashed the entire earlier proceedings. What it had cancelled was only the order, and it had, on that very date, that is, the 15th July, 1955, ordered a show-cause notice to go to the plaintiff. The plaintiff submitted his explanation to it, and that having been considered, the final order of discharge was passed. In these circumstances, it was not at all necessary to hold the inquiry de novo from the very beginning, and this contention of the plaintiff must also fail.
22. My conclusion on this aspect of the case, therefore, is that the departmental enquiry made against the plaintiff taken in its entirety was quite in order and that the order of the plaintiffs' discharge dated the 15th June, 1956, as modified by the order of the 18th December 1956 already quoted above was not illegal, void or inoperative and on the whole calls for no interference.
23. It may be pointed out before proceeding further that the plaintiff has been allowed his full pay for the period from 21st April, 1954, to the 15th July, 1955, and there is no appeal by the State against that
24. The only other question which then remains to consider in the plaintiff's appeal is whether he is entitled to bis full pay for the period from the 16th July, 1955, to the 15th June, 1956; for which he has been allowed only a subsistence allowance by the learned District Judge. In other words, the question is whether the order of suspension dated the 15th July, 1955, can operate prospectively even if, as has been held above it cannot be operative retrospectively.
Now, so far as the aspect of the case raised by the plaintiff is concerned, I have already held while considering the appeal in the first suit that a retrospective order of suspension cannot be passed in law. Similarly a retrospective order of discharge cannot be passed also. It was on this account perhaps that the Government felt impelled to direct by its order dated the 18th December, 1956 (Ex. 37) that the plaintiff's discharge from service should take effect not from the 26th December, 1950, but from the 16th June, 1956. The point which requires to be carefully noted in this connection is that the order of discharge dated the 16th June, 1956, was never cancelled or set aside by any subsequent order including that passed on the 18th December, 1956. The last-mentioned order only modified the earlier order in so far as the date of the discharge was concerned. It altered that date from the 26th December, 1950, to the 16th June, 1956, but otherwise kept the earlier order intact so that the plaintiff could not be treated as having been discharged from the 26th December, 1950, [and such a discharge would indeed have been improper) and the discharge was to take effect from the 16th June, 1956, only.The correct legal position, therefore, seems to me to be that the order of discharge dated the 16th June, 1956, not having been set aside or cancelled, the order of suspension dated the 15th July, 1955, could well operate prospectively as that order could not be said to have merged in any order of discharge which may have been set aside and in which situation it could not revive.
25. Reference may be made in support of this view to Ramesh Chandra v. State of Rajasthan, 1959 Raj LW 429. The facts of this case were these. One R as the result of a departmental inquiry was discharged from service by an order dated the 4th October, 1954. He tiled, an appeal against this order to the State Government. It then having come to notice that the second show-cause had not been given to R, it was served on him and his explanation obtained and the papers were again submitted to the Government. By an order dated the 11th December, 1956, the Government dismissed the appeal. On a writ petition filed by R, it was held by a Division Bench of this Court that the proper effect of the entire proceedings was that the order of dismissal would hold good from the 11th December, 1955, the date on which the Government dismissed the appeal and upheld the order of dismissal, although the order was so worded as to show that the original order of discharge had been maintained. It seems to me that the principle of this bench decision applies to the present case, and, therefore, the order of suspension dated the 15th July, 1955, would and did take effect from that date though it did not have any retrospective effect. Also see Narayan Prasad v. State of Orissa, AIR 1957 Orissa 51 and Lekh Ram v. State of Madhya Pradesh, AIR'1959 Madh Pra 404, in this connection.
26. The correct position, therefore, would seem to be that the plaintiff must be held to be rightly under suspension during the period extending from 15th July, 1955, to the 16th June, 1956, and this position Is not affected adversely by any orders passed subsequently thereto. It must follow under the circumstances that the plaintiff is only entitled to subsistence allowance for this period and no more. This disposes of the plaintiff's appeal No. 173 of 1962, which on the findings arrived at by me must fail.
27. I now take up the appeal of the defendant State. The only ground raised in this appeal is that the decree passed in favour of the plaintiff to the extent of Rs. 1353 .55 nP. being the salary for the period extending from the 16th June, 1956, to the 18th December, 1956, be set aside. No other point has been raised in this appeal. The submission is that the plaintiff was discharged from service by the order of the Government dated the 16th June, 1956, and that the subsequent order dated the 18th December, 1956, was simply a modification of the previous order, inasmuch , as it altered the date of his discharge from the 26th December, 1950, to the 16th June, 1956 (being the date of the former order itself,) and therefore, the learned District Judge was entirely wrong in holding that the plaintiff must be treated as being again in service during the period in question or in allowing his salary for that period.
28. I have already held above that the plaintiff's suspension rightly took effect from the 15th July, 1955. I have also held that the plaintiff was entitled to only subsistence allowance for the period from the 15th July, 1955, to the 16th June, 1956. This order of suspension was never adversely affected by any thing done thereafter.
29. The learned District Judge seems to have entertained the view that even though the plaintiff was undersuspension upto the 16th June, 1956, and rightly so, the order of discharge which was passed on the 16th June, 1956, to take retrospective effect from the 26th December, 1950, was also illegal and the earlier suspension had merged in that order of discharge and therefore the plaintiff must be deemed to be in service from the 16th June, 1956, to the 18th December, 1956, when the last order was passed and therefore he was entitled to his full salary for that period.
I regret, I am unable to agree with this view. The reason is that even according to the learned District Judge himself, the order of suspension did and could have prospective effect from the 15th July, 1955. And further I desire to emphasize that the order of discharge dated the 16th June, 1956, was never set aside or cancelled. The order of the 18th December, 1956, did not cancel it, but only modified it so as to make the order of discharge effective from the date of the earlier order that is the 16th June, 1956. In other words, the plaintiff's discharge from service was maintained from that date even by the order of 18th December, 1956, and not cancelled. It cannot also be legitimately held that the order of suspension dated the 15th July, 1955, got absorbed or merged in any order of discharge which was subsequently set aside and on account of which circumstance, the order of suspension entirely failed of its effect and could not be revived or otherwise remain alive. '
The learned District Judge's view that this order of suspension got merged in the order of discharge dated the 16th June, 1956, and the latter order was wholly illegal is, in my opinion, wrong and cannot be sustained. I have held above that the order of the 16th June, 1956, as modified by the order of the 18th December, 1956, is perfectly valid. I have also held that the order of suspension dated the 15th July, 1955, could take effect prospectively and that nothing that was done thereafter affects this order adversely, and therefore the plaintiff's discharge fully and finally takes effect from the 16th June, 1956. That being so, it must follow that the plaintiff cannot be held entitled to any emoluments whatever for the period in question. In the view which I have felt persuaded to take, this appeal does succeed and has to be allowed.
30. The net result is as follows:
(1) I allow the plaintiff's appeal No. 292 of 1958 and enhance the decree passed by the learned District Judge for Rs. 4253/- by a further sum of Rs. 4850/-, the total amounting to Rs. 9103/-. The plaintiff will be entitled to his proportionate costs throughout
(2) I dismiss the plaintiff's appeal No. 173 of 1962, and hold, in agreement with the learned District Judge, that the plaintiff's discharge from the service does not call for any interference and he will be entitled only to subsistence allowance for the period from the 16th July, 1955, to the 15th June, 1956, amounting in all to Rs. 716.0-4 nP. The decree passed by the learned District Judge that the plaintiff Is further entitled to a sum of Rs. 3048.28 nP. as full pay from the 20th April, 1954, to the 15th July, 1955 of course stands. The plaintiff will set his proportionate costs from the State, so far as this part of his claim is concerted, in the Courts below. But I would leave the parties to bear their own costs in this Court,
(3) I allow the defendant's appeal No. 569 of 1962 and modify the judgment and decree of the learned District Judge and hold that the plaintiff is not entitled either to subsistence allowance or pay for the period from the 16th June, 1956, to the 18th December, 1956. The defendantwill be entitled to its costs of the appeal in this Court, but I do not allow it any costs qua this part of the plaintiff's claim in the Courts below, as much of the trouble that has been occasioned in this case has been due to the Government's inability to pass a proper order of discharge in the first instance and its having to revise its own orders a number of times.