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Y. Venkateswarlu Vs. State of Madras, Represented by the Secretary, Home Department, Madras - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 212 of 1953
Judge
Reported inAIR1954Mad587; (1954)ILLJ474Mad
ActsConstitution of India - Articles 226 and 311(2); Madras Police Standing Orders - Order 98(1)
AppellantY. Venkateswarlu
RespondentState of Madras, Represented by the Secretary, Home Department, Madras
Appellant AdvocateD. Narasaraju and ;K.B. Krishnamurthi, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Cases ReferredDr. Krishnamoorthi v. State of Madras
Excerpt:
.....in article 311 - penalties contemplated in article 311 are dismissal, removal and reduction in rank - suspension different from reduction in rank - no necessity for any opportunity being given to petitioner to show cause why he should not be suspended - no contravention of any compelling provision of constitution - petition dismissed. (ii) delay in application - delay by itself should not disentitle applicant of any relief - in case of delay caused by reasons which were satisfactorily and properly explained court should not refuse remedy to applicant. - - though wrongly advised, the applicant appears to have sought some remedy from the central board of revenue, of course, unsuccessfully. he has unsuccessfully petitioned to the d. of police as well as to the inspector general of..........the opinion of vivian bose j. in the nagpur case that suspension is equivalent to reduction in rank. suspension connotes the non-doing of the service while reduction connotes the doing of service in an inferior capacity. when a person is suspended from an office, though strictly he retains in himself the right to hold office and all its essentials, he is temporarily precluded by the order of suspension from doing the duties attached to the office and receiving the emoluments. but when it is a case of reduction it means that the officer is denoted to a lesser, or lower, category, or class of the office; but at the same time he is bound to perform certain duties attached to that lower office. this is the view taken by h. k. bose j. of the calcutta high court. the observations of the.....
Judgment:
ORDER

Govinda Menon, J.

1. The petitioner was recruited into the Madras Subordinate Police Service as Sub-Inspector of Police on 13-10-1942 and had been functioning as such from that date. From 10-5-1951 he had been in charge of the Rasoolpet Police Station, Guntur District, when, on 13-3-1952, the Deputy Superintendent of Police, Guntur, served on him an order at 6-45 p.m. that under the orders of the District Superintendent of Police, Guntur, he was relieving the petitioner of the charge from the station forthwith, with the result that the petitioner was directed to hand over charge at once to another Sub-Inspector. Two days later, this was followed up by an order from the District Superintendent of Police containing the statement that there was evidence that the petitioner as Sub-Inspector of Rasoolpet station has been receiving illegal gratification from the public and that there was definite information that he has received illegal gratification from four persons of Guntur town.

It was further stated that the petitioner had sent a letter to the Deputy Inspector General of Police, Northern Range, Masulipatam, on an inland postal cover with something written in Tamil of which the English handwriting forming the address of the Deputy Inspector General of Police, Northern Range, has been certified to be that of the petitioner by officers who knew his handwriting in the usual course of business. For confirming this fact the letter had been forwarded to the handwriting Expert, Madras, and further enquiries had to be made about it. Therefore, pending enquiry into these allegations, the petitioner was placed under suspension and was told that he will draw eligible subsistence allowance and dearness allowance during suspension period. On 19-3-1952 the petitioner sent a memorial to the Inspector General of Police, wherein he stated that the suspension was illegal and was the result of misunderstanding and enmity and there was a request that the Inspector General should take the necessary action and do the needful justice by issuing express orders.'

On 7-4-1952 he made another representation to the Deputy Inspector General of Police and the Special Officer, Northern Range, Masulipatam, praying that the superior officer, the Inspector, should be transferred forthwith outside the district in the interests of justice and equity; otherwise there would be no scope for him to vindicate his innocence and get justice done. In both these petitions he had made allegations against the Inspector Ramaswami. On 19-4-1952, the petitioner received an endorsement on his petition to the Deputy Inspector General of Police dated 7-4-1952 stating that, the enquiry against him was then in the hands of the X Branch, C. I. D., and till that was over his request could not be granted. On 27-4-1952 the petitioner sent anothermemorial to the District Superintendent of Police contending that the order of suspension was 'ultra vires' and 'mala fide' for various reasons.

It was further stated there that the investigation by the X branch would reveal that he was innocent and free from blame. On 1-5-52 there was an endorsement on this application by the District Superintendent of Police, Guntur, to the effect that there was no reason to revoke or change the order placing the petitioner under suspension as the enquiry against him had been taken up by the C. I. D. and until a definite conclusion was arrived at by the C. I. D. Officer, matters would have to stand as they were then. Since there was no reply to the memorial dated 7-4-1952 sent by the petitioner to the Inspector General of Police he sent another on 9-5-52 and followed it up by another dated 22-5-52. To these he got a reply dated 9-7-1952 from the Inspector General of Police stating that his request could not be granted. In the meanwhile he is alleged to have sent another petition to the Chief Minister of Madras also.

It is alleged by the petitioner that he had not received any reply from the Government for the representations made by him. But on 6-2-1953 the District Superintendent of Police, West Godavari, to whom the enquiry had been transferred, framed a number of charges against the petitioner and they were served on the petitioner on 18-3-1953. Thereafter this application for the issue of a writ of certiorari was filed in this court on 19-3-1953. The prayer in the application is for an order or direction, or other appropriate writ under Article 226 of the Constitution, declaring as illegal, the order of suspension dated 15-3-1952 bearing D. O. No. 511/52 issued from the office of the District Superintendent of Police, Guntur, suspending the petitioner as Sub-Inspector of Police, Rasoolpet Police Station, Guntur, and also directing the Government to forbear from continuing, or enforcing, the said order of suspension.

2. A preliminary objection is taken by the Government Pleader, who appears for the respondent State, that though the order of suspension was passed on 15-3-1952, the petitioner has taken a year to file the writ application in the High Court. Therefore, the inordinate delay in the filing of this petition will, by itself, disentitle the petitioner to any relief. In other words, the learned Government Pleader's contention is that the petitioner has not moved this court within a reasonable time of the serving of the order of suspension on him and that he cannot be allowed to take his own time and file a writ petition about a year later. The argument on behalf of the State is that an application for a writ of certiorari is in the nature of an extra-ordinary remedy and should therefore be invoked, or taken advantage of, as early as possible.

It is further urged that since in the case of an appeal, or second appeal, or revision petition, to this court from the decree, judgment, or order, of any subordinate Court, the period of limitation is 90 days, and that in criminal appeals from the convictions by Sessions Court the period of limitation is 60 days, it is not only inexpedient, but is illegal and unjust, to allow a party to move this court for a writ nearly a year after the order by which he is aggrieved has been passed. The learned Government Pleader lays great stress on a decision in -- 'Nathamooni Chetti v. Viswana-tha Sastry' : AIR1951Mad250 (A); where Rajamannar C. J. and Somasundaram J. lay down that though there is no specific period of limitation it has generally been the accepted practice of this court not to exercise the extraordinarypower by way of the issue of prerogative writs when there has been long delay since the passing of the order sought to be quashed. In that case, the order sought to be quashed was dated 21-10-1948 and the application for the writ of certiorari was filed only towards the end of 1949 and it came up for hearing on 19-7-1950. The learned Judges therefore held that the inordinate delay by itself would disentitle the petitioner from seeking any remedy.

3. On the other hand Mr. Narasaraju for the petitioner invited my attention to another decision of this court in -- 'Muthiah Chettiar v. Commr. of Income-tax Madras : [1951]19ITR402(Mad) (B), which contains observations at page 206 to the following effect:

'The other objection is based on the long delay in making the application. The order of the Commissioner rejecting the petitioner's application for revision was made on 5-4-1949, while the application for the issue of a writ of certiorari was made about a year after that date. We have held that though there is no period of limitation as such prescribed for application for the issue of prerogative write, long delay can be one of the grounds for refusing to grant an application for the issue of such writs. In this case, however, we think there are circumstances which should make us take a more lenient view. Though wrongly advised, the applicant appears to have sought some remedy from the Central Board of Revenue, of course, unsuccessfully. Having regard to this fact, we do not consider that the delay should prevent the party from obtaining the relief to which we have found he is entitled.'

Mr. Narasaraju therefore contends that the delay of one year was due to the fact that the petitioner was exhausting all the departmental remedies he could have availed of. He has unsuccessfully petitioned to the D. I. G. of Police as well as to the Inspector General of Police. He made a representation to the Government for which no reply was received. In such circumstances, having 'bona fide' resorted to the departmental remedies available to him, he should not be blamed for the delay in moving this Court for, if he had not approached his departmental superiors for the cancellation of the suspension, that fact itself might be pointed out against him as a reason for refusing a relief in this Court on the ground that he has not taken advantage of other proper & more efficacious remedies. The learned counsel contends that when once finally the charges were framed on 6-2-53 and served on him on 18-2-1953 he was conscious of the fact that he could get no redress at all from the departmental authorities and so perforce was compelled to seek a remedy in this court. It seems to me that there is something to be said for this argument. I would certainly have refused to entertain an application for the issue of a writ of certiorari to quash an order passed one year prior to the application if, during the intervening period, the aggrieved party had not taken any steps. But there is some justification for the petitioner waiting for nearly a year, because, during that period, he had not remained silent, or idle, but had been knocking at the doors of his departmental superiors to find out whether, from those quarters, he could obtain any relief.

It cannot be said that he was mala fide, or recalcitrant, in seeking those remedies. In these circumstances, following the decision in ' : [1951]19ITR402(Mad) (B)' I would hold that there was sufficient justification for the petitioner to have delayed in coming to this court. Delay by itself should not disentitle the applicant of any relief. But if the delay was caused by reasons which could be satisfactorily and properly explained, then this court would not refuse the remedy to the petitioner. I would therefore overrule the preliminary objection and dispose of the writ application on merits,

4. Learned counsel for the petitioner puts forward two contentions; firstly that he has not been apprised, or given notice, of any charges against him, before the District Superintendent of Police, by his entry in the general diary at 6-45 p. m. on 13-3-1952, relieving him of his duties as Sub-Inspector of Police of Rasoolpet Police station; and secondly the order dated 15-3-1952 by which he was suspended is illegal, in view of Article 311, Clause (2) of the Constitution because he was not given a reasonable opportunity of showing cause why the action proposed to be taken against him should not be taken. On the first part of the argument my attention has been Invited to Article 303 as well as to Order 98 of the Madras Police Standing Orders, Article 309 of the Constitution lays down that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.

The proviso to that Article says that pending the passing of such legislative Acts by the respective Legislatures, in the case of the Union, the President, and in the case of the States, the Governor or Rajpramukh, or such person as he may direct, may make rules regulating the recruitment and conditions of service of persons appointed to such services; and any such rule so made shall have the effect subject to the provisions of any such Aci. It is conceded that the Madras Legislature has passed no such Act, but that the Governor has made certain rules regarding the conditions of services and posts in connection with the affairs of the State. The Discipline and Appeal Rules made by the Governor are in pursuance to this power and Order 98 of the Madras Police Standing Orders is in the following terms:

'93(1) Under the proviso to Rule 2 (e) of the Discipline and Appeal Rules (Annexure III), the penalty of suspension should be resorted to only when it is necessary in the public interest to suspend an officer pending enquiry into grave charges against him. When suspension is ordered for such reason it should not be necessary to observe the procedure laid down in Order No. 90.'

It is contended that in this case there are no grave charges against the petitioner and that it was unnecessary, in the public interests, to suspend him pending enquiry. Therefore, the procedure laid down by Order 90 ought to have been followed and not having done so, the order of suspension cannot be justified. The learned Government Pleader, on the other hand, contends that if the facts alleged in the order of suspension are true, then certainly the charges are grave and a person against whom enquiry into such charges are pending is unfit to be in public service pending such enquiry and public Interests require and necessitate the suspension of such a person. Moreover, the charges framed against the petitioner on 6-3-53 reveal that if proved the petitioner is a very grave delinquent. In my view the Government Pleader's contentions are well founded.

If a person is suspected to have received Illegal gratification and to have written anonymous letters to his superior, and if such charges areproved against him, he is certainly guilty of grave charges; and if his superior officer has reason to believe that any subordinate officer is guilty of such a conduct, it is certainly in the public interests to prevent him from performing public duties. The term 'grave charges' in Order 98 (1) cannot be equated with the word 'charge' as understood in the various chapters of the Criminal P. c. where that word has a technical and specialised meaning. When Order 98 (1) speaks of 'grave charges'' it only means that there are reasonable grounds for believing that there are grave allegations and nothing more. For the meaning of the word 'charge' in its common parlance, reference may be made to page 194 of Ramanatha Aiyar's Law Lexicon where the dictionary meaning of the word is given as:

'Charge. (Charge in criminal law) The expression 'charged with' as applied to a crime, is sometimes used in a limited sense, intending the accusation of a crime which preceded a formal trial. In a fuller and more accurate sense the expression includes the responsibility for the crime.'

I am therefore of opinion that there is no ground for holding that the provisions of Order 98 (1) cannot apply to the facts of the present case. The first contention is therefore overruled.

5. The second argument is more substantial and it depends upon the interpretation to be put upon the words 'reduced in rank' which occur in Clause (2) of Article 311, and which is to the following effect:

'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.

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

We are not concerned here with the provisos to Clause (2) and as such the same are not read. Mr. Narasaraju wants the court to hold that when a person is suspended and relieved of his duties he is precluded from performing any of the functions that are attached to the office which he has been holding and therefore suspension is tantamount to reduction in rank; in which case the officer suspended should be given a reasonable opportunity of showing cause against the action proposed to be taken against him. That the petitioner is a person employed in a civil post under the State has not been disputed. Thai he is Suspended is obvious. Therefore if suspension is 'reduction in rank' then he should be given an opportunity of showing cause, which has not been done in this case, with the result that the order dated 15-3-1952 is repugnant to clause (2) of Article 311. Great support for this contention, is sought from a judgment of the Nagpur High Court reported in -- 'Provincial Government, C. P. and Berar v. Syed Shamshul Hussain' , a judgment of a Bench delivered by Vivian Bose J. as he then was. It was held there that when a civil servant is suspended he is 'reduced in rank' within the meaning of Sub-section (3) of Section 240, Government of India Act. At page 120 the learned Judge observes as follows: 'When a man is suspended he is, in our opinion, reduced in rank. It is evident that suspension is not the equivalent of dismissal because, if itwere, then the present contention would fall to the ground. But it the man continues in service what rank does he hold Clearly not the rank he occupied at the date of suspension. He is not entitled to discharge any duties while under suspension. He is not entitled to draw his pay. It is evident then that he does not continue to hold his substantive rank because two of the fundamental attributes of rank, except when honorary, are the right to discharge its duties and the right to draw its pay. If then he continues in service but ceases to hold the rank he did, then there must have been a reduction in rank, and in our opinion, an officer 'under suspension', which is what he is officially called, means an officer whose rank has been reduced within the meaning of Sub-section (3).'

Sub-section (3) of Section 240, Government of India Act was to the effect that no person, who is a civil servant of the Crown, should be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. If these observations are correct and should be applied under the Constitution, then certainly the petitioner has a grievance in that he has not been given an opportunity of showing cause against the action proposed to be taken in regard to him. But in my view it is difficult to equate 'suspension' with 'reduction in rank'. The above decision of the Nagpur High Court, came up for discussion before the Calcutta High Court in -- 'Kali Prosanna v. State of West Bengal' : AIR1952Cal769 (D), where H. K. Bose J. discussed the meaning of the term 'reduced in rank' in Article 311 of the Constitution. The learned Judge adverted to the dictionary meaning of the word 'suspend' as 'to debar usually, for a time, from any privilege from the execution of an office or from the enjoyment of an income'.

He disagreed with the opinion of Vivian Bose J. in the Nagpur case that suspension is equivalent to reduction in rank. Suspension connotes the non-doing of the service while reduction connotes the doing of service in an inferior capacity. When a person is suspended from an office, though strictly he retains in himself the right to hold office and all its essentials, he is temporarily precluded by the order of suspension from doing the duties attached to the office and receiving the emoluments. But when it is a case of reduction it means that the officer is denoted to a lesser, or lower, category, or class of the office; but at the same time he is bound to perform certain duties attached to that lower office. This is the view taken by H. K. Bose J. of the Calcutta High Court. The observations of the learned Judge at page 770 of the report may be read with profit:

'It is temporary privation of office, or privilege. By reason of suspension the person suspended does not lose his office nor does he suffer any degradation. He ceases to exercise the powers and to discharge the duties of the Office for the time being. His rank remains the same and his pay does not suffer any reduction. He cannot draw his salary during the period of suspension. His powers, functions and privileges remain in abeyance but he continues to be subject to the same discipline and penalties and to the same authorities. It appears to me that the learned Judges of the Nagpur High Court have put a strained construction on the words 'reduced in rank' as occurring in Section 240(3), Government of India Act 1935. It is no doubt true that the person is brought down to an inferior condition for the time being but in my view the expression 'reduced in rank' in Article 311(2) has reference to permanent reduction or degradation of status .....'

To the same effect is an unreported case of the Punjab High Court in 'C. W. no. no of 1951 (Punj) (E)' decided by Eric Weston C. J. and Falshaw J. the latter of whom delivered the leading judgment with which the former concurred. There also the learned Judges adverted to the decision of the Nagpur High Court and dissented from the construction put upon the words 'reduced in rank' by the Nagpur Judges. The following observation of the learned Judges maybe quoted:

'It was observed by Bose J. (Nagpur High Court) that when a man was suspended, he was, in His opinion, reduced in rank as he could neither perform the duties of his office nor draw the salary for it. This, however, does not appear to be a sufficient reason for holding that suspension during the pendency of an enquiry meant reduction in rank. The same two disabilities namely, not being able to perform the functions of his office' and not being able to draw his full salary would equally apply to an officer on leave on half pay. 'Suspension' as a term is of long usage and has a clear and well defined meaning in this context, and in my opinion there can be no doubt that if suspension was a step which could not be taken without an opportunity being given to the officer concerned1 to show cause against it, suspension would have been included specifically along with dismissal, removal, and reduction in rank, in Article 311(2).

Although during its pendency the incidents of suspension are similar, whether it is imposed as a punishment after an enquiry, or is merely suspension pending an enquiry, there is one important difference between them, namely that if an officer is exonerated as a result of the enquiry he will be given his arrears of pay for the interim period of suspension. If an officer could not be suspended pending an enquiry under Rule 56 without being given an opportunity to show cause against this action, it would really mean that two enquiries would have to be held against him, and it was in my opinion for this reason that suspension was omitted from Article 311(2).'

I am in entire concurrence with the views expressed by the Calcutta and Punjab High Courts. But the matter does not rest there alone. In a recent decision of the Supreme Court reported in--'Satischandra Anand v. Union of India', AIR 1953 SC 350 (F) Vivian Bose J. in delivering the judgment of the Constitution Bench has not adverted to the view he took earlier in '. At pp. 251-252 of the report occur the following observations :

'The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. Under Section 240, Government of India Act, 1935, the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely, removal from service, in order to understand the difference between 'dismissal' and 'removal' from service, it will be necessary to turn to. the Rules which governed and with modifications still govern the 'services' in India because of Article 313 of the Constitution.

Part XII of the Civil Services (Classification, Control and Appeal) Rules relating to Conductand Discipline includes Rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service & dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely, reduction in rank and dismissal from service. The Constitution has added a third to the list ...... It followsthat the Article has no application here and so no question of discrimination arises, for the 'law' whose protection the petitioner seeks has no application to him.'

One thing is certain and that is that Rule 49 of the Civil Services (Classification, Control and Appeal) Rules when it sets out separately the various penalties, a distinction is made between 'suspension' and 'reduction in rank'. If 'suspension' is equivalent to 'reduction in rank' then there was no necessity for using the two expressions in the same rule. His Lordship Vivian Bose J. says that the Act of 1935 selected only two of these possible penalties, viz., dismissal or reduction in rank. It did not take in the third, viz., removal. The Constitution has added to the two punishments, dismissal or reduction in rank, a third, via., removal.

Therefore under Article 311, Clause (2), the penalties, contemplated there, for which a statutory safeguard of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him is provided, are dismissal, removal, or reduction in rank. On a reading of the decision of the Supreme Court, it seems to me that in that judgment their Lordships did not intend to equate 'suspension' with 'reduction in rank'. The two ideas are distinct and are intended to apply to different sets of circumstances. I am therefore of opinion that the contention of the learned counsel that suspension is tantamount to reduction in rank is unacceptable. If that is so, there was no necessity for any opportunity being given to the petitioner, before he was suspended, to show cause why he should not be suspended.

6. The learned Government Pleader also relied upon certain observations contained in -- 'Dr. Krishnamoorthi v. State of Madras' : AIR1951Mad882 (G), where Rajamannar C. J. was of opinion that the fact that rules are made to safeguard the rights of a civil servant in matters of disciplinary action does not mean that the High Court has jurisdiction to quash orders of Government dismissing a civil servant because one or other of the rules has been contravened. From these observations he argues that even if, in the order of suspension, any rule made by the Government has been contravened, still this court would not have any jurisdiction to issue a writ.

I do not think that these observations would be of any material help, for the Bench there was considering the effect of certain rules made by the Government with regard to Disciplinary Proceedings Tribunal. What we are concerned here is the meaning to be given to the expression 'reduction in rank' which occurs in Article 311, Clause (2). If there has been a contravention of any compelling provision of the Constitution, then, in my view, the statutory authority has acted without jurisdiction, or in excess of jurisdiction; and in such matters interference by this Court would be called for. But, as I have stated already, in the present case there has been no contravention of any provision of the Constitution.

7. Both the points on which the learned counsel for the petitioner relied to show that the order of suspension is 'ultra vires' and without Jurisdiction have failed. On the merits both Mr. Narasaraju and the learned Government Pleader refrained from addressing any arguments, because the matter is pending enquiry, and I do not want toexpress any opinion about the charges. (8) The petition is dismissed.


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