This Product is Licensed to Rajasthan State Judicial Academ, , Jodhpur

2005 0 AIR(SC) 4217; 2005 0 AIR(SCW) 4986; 2005 8 JT 425; 2005 3 LLJ 1129; 2005 7 Scale

409; 2005 7 SCC 764; 2005 7 Supreme 85; 2005 0 Supreme(SC) 1203;

2005(7) Supreme 85

Supreme Court of India

(From Calcutta High Court)

S.N. Variava, C.K. Thakker & Tarun Chatterjee, JJ.

Ajit Kumar Nag —Appellant

versus

General Manager, Indian Oil Corporation Ltd. & Ors. —Respondents

Civil Appeal No. 4544 of 2005

With

Writ Petition (Civil) No. 703 of 2004

Decided on 19-9-2005

Counsel for the Parties :

For the Appellant : P.P. Rao, Sr. Advocate, Raja Chatterjee and G.S. Chatterjee, Advocates.

For the Respondents : Ashok Grover, Sr. Advocate, V.N. Koura and Ms. Paramjit Benipal,

Advocates for M/s. Arputham, Aruna and Co., Advocates.

Constitution of India—Article 32—Certified Standing Orders of Indian Oil Corporation

Ltd.—Standing Order 20, Clause (vi)—Validity—Dismissal from service—Allegations of

malafide—Misconduct of assaulting Chief Medical Officers of Haldia Hospital—Appellant

joined service of Indian Oil Corporation at Haldia Refinery—Appellant led by a bunch of

hooligans had visited the hospital and allegedly assault Chief Medical Officer

there—Criminal proceedings were initiated against appellant—Appellant was

acquitted—Whether impugned order dismissing him from service deserves to be

quashed—(No)—Whether an employee of Indian Oil Corporation can be said to be holding

a ‘civil post’, entitled to protection of Article 311 of the Constitution—(No)—Article 311 of

the Constitution has no application to the facts of the case—Whether Clause (vi) of

Standing Order 20 confers blanket or uncanalised power on the General Manager—(No).

       Held : As far as acquittal of the appellant by a criminal court is concerned, in our

opinion, the said order does not preclude the Corporation from taking an action if it is

otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal

court would not debar an employer from exercising power in accordance with Rules and

Regulations in force. The two proceedings - criminal and departmental - are entirely

different. They operate in different fields and have different objectives. Whereas the object

of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry

proceedings is to deal with the delinquent departmentally and to impose penalty in

accordance with service Rules. In a criminal trial, incriminating statement made by the

accused in certain circumstances or before certain officers is totally inadmissible in

evidence. Such strict rules of evidence and procedure would not apply to departmental

proceedings. The degree of proof which is necessary to order a conviction is different from

the degree of proof necessary to record the commission of delinquency. The rule relating

to appreciation of evidence in the two proceedings is also not similar. In criminal law,

burden of proof is on the prosecution and unless the prosecution is able to prove the guilt

of the accused ‘beyond reasonable doubt’, he cannot be convicted by a court of law. In

departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer

on a finding recorded on the basis of ‘preponderance of probability’. Acquittal of the

appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the

liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to

uphold the contention of the appellant that since he was acquitted by a criminal court, the

impugned order dismissing him from service deserves to be quashed and set aside. (Para

10)

       As far as the status of the appellant is concerned, it must be stated that Mr. Rao, Senior

Advocate fairly conceded at the hearing of the appeal and the writ petition that the

appellant is not governed by Article 311 of the Constitution since he cannot be said to be

‘civil servant’. (Para 11)

       Upholding the objection and considering the ambit and scope of Article 311, this Court

held that an employee of a Corporation cannot be said to have held a ‘civil post’ and,

therefore, not entitled to protection of Article 311. According to the Court, the Corporation

could not be said to be a ‘department of the Government’ and employees of such

Corporation were not employees under the Union. The Corporation has an independent

existence and the appellant was not entitled to invoke Article 311. (Para 12)

       We are equally not impressed and hence unable to uphold the contention that Clause

(vi) of Standing Order 20 confers blanket or uncanalised power on the General Manager. In

our judgment, sufficient guidelines and safeguards have been provided in the Standing

Orders, themselves, such as (i) the power is conferred on the highest administrative head

of the Corporation; (ii) eventualities have been specifically and expressly stated in Clause

(vi) of Standing Order 20; (iii) satisfaction of the General Manager that such an eventuality

has arisen; (iv) recording of reasons in writing; and (v) right of appeal against the decision

of the General Manager. Such a provision, in our considered view, cannot be held arbitrary

or unreasonable, violative of Article 14 of the Constitution. (Para 32)

       It is well settled that a provision which is otherwise legal, valid and intra vires cannot

be declared unconstitutional or ultra vires merely on the ground that there is possibility of

abuse or misuse of such power. If the provision is legal and valid, it will remain in the

statute book. Conversely if the provision is arbitrary, ultra vires or unconstitutional, it has

to be declared as such notwithstanding the laudable object underlying it. (Para 34)

       Plain reading of the above Standing Order makes it abundantly clear that a workman on

whom any of the penalties is imposed has a right to appeal and the Appellate Authority has

to decide such appeal of a workman in accordance with law after affording him reasonable

opportunity. It also allows the appellant-workman to have assistance of a co-worker. It,

therefore, cannot be said that once an action is taken under Clause (vi) of Standing Order

20, the matter is over. In view of exceptional situation contemplated by Clause (vi) and on

satisfaction of the General Manager that an immediate action is necessary, he can dismiss

or remove the workman. Such workman, however, may invoke Standing Order 21 and may

file an appeal and convince the Appellate Authority that the action taken by the General

Manager in purported exercise of power under Standing Order 20(vi) was unlawful or

improper. If the Appellate Authority is satisfied, it may set aside the action of the General

Manager and grant appropriate relief to the workman. Even if the Appellate Authority holds

against the workman and confirms the order of dismissal/removal, judicial review is

available to the aggrieved appellant, albeit on limited grounds. To us, therefore, it is clear

that the Standing Order 20(vi) allows the General Manager to take an action in emergency

keeping in view exceptional situation which has arisen and he is satisfied that the workman

should be removed or dismissed from service without following procedure laid down in

Standing Order 20(iii). Whereas Standing Order 20(iii) deals with cases in general and

provides enquiry and pre-decisional hearing, Standing Order 20(vi) is an exception to the

general rule and deals with special cases under which an action can be taken. Since appeal

is provided in all cases, the case is one of post-decisional hearing. (Para 40)

       According to the Appellate Authority, therefore, the situation had arisen out of the

incident in which it was neither expedient nor in the interest of the security of the Refinery

and its personnel to continue the workman any more and the power was exercised by the

General Manager under Standing Order 20(vi). The Appellate Authority noted that in past

also, the appellant had committed misconduct but a lenient view was taken and the

punishment imposed on him was reduced. Such punishment, however, had no any

deterrent effect on the appellant and he repeated similar acts of misconduct in 1999. There

was, therefore, no ground for further leniency. Taking into account grave and serious

misconduct committed and their likely repercussions on the general discipline and safety

of officers, the punishment imposed on him needed no interference. Accordingly, the

appeal was dismissed. (Para 45)

       

Cases referred :

Aligarh Muslim University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783. (Para 50)

Mathura Refinery Mazdoor Sangh v. Deputy Chief Labour Commissioner & Ors., Special Leave

Petition (C) No. 11659 of 1992, decided on 13.11.1995. (Para 24)

A. Thangal Kunju Musaliar v. M. Venkitachalam Potti & Anr., 1955(2) SCR 1196. (Para 35)

R. v. University of Cambridge, (1723) 1 Str 557. (Para 41)

Dr. S.L. Agarwal v. General Manager, Hindustan Steel Limited (Hindustan Steel Limited I), (1970)

3 SCR 363 : (1970) 1 SCC 177. (Para 11)

Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi & Anr., (1975) 1 SCC 421 :

Relied on. (Para 12)

Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449 : Relied on. (Para 12)

A.L. Kalra v. Project & Equipment Corporation of India Ltd., (1984) 3 SCC 316 : Relied on. (Para

12)

Tekraj Vasandi v. Union of India & Ors., (1988) 1 SCC 236 : Relied on. (Para 12)

Pyare Lal Sharma v. Managing Director & Ors., (1989) 3 SCC 448 : Relied on. (Para 12)

State Bank of India v. S. Vijay Kumar, (1990) 4 SCC 481. (Para 12)

Satinder Singh Arora v. State Bank of Patiala, (1992) Supp 2 SCC 224. (Para 12)

Workmen of Hindustan Steel Limited & Anr. v. Hindustan Steel Limited & Ors., (Hindustan Steel

II), (1984) Supp SCC 554. (Para 14)

Hari Pada Khan v. Union of India & Ors., (1996) 1 SCC 536 : Distinguished. (Para 19)

Union of India & Anr. v. Tulsi Ram Patel, (1985) 3 SCC 398. (Para 26)

State of Rajasthan & Ors. v. Union of India & Ors., (1977) 3 SCC 592. (Para 36)

Sushil Kumar Sharma v. Union of India & Ors., (2005) 6 SCC 281. (Para 37)

Charan Lal Sahu v. Union of India, (Bhopal Gas Disaster), (1990) 1 SCC 613. (Para 41)

Satyavir Singh & Ors. v. Union of India & Ors., (1985) 4 SCC 252. (Para 47)

Central Inland Water Transport Corporation v. Brajo Nath Ganguly, (1986) 3 SCC 156 :

Distinguished. (Para 48)

Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress, 1991 Supp (1)

SCC 600 : JT (1990) 3 SC 725 : Distinguished. (Para 48)

E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3 : Relied on. (Para 51)

Gulam Mustafa & Ors. v. State of Maharashtra & Ors., (1976) 1 SCC 800. (Para 51) CONSTITUTION OF INDIA : Art.311, Art.32

Important points

1. Exercise of extraordinary power in exceptional circumstances under Standing Order 20(vi) of

Indian Oil Corporation Ltd. cannot be said to be arbitrary, unreasonable or malafide.

2. Acquittal by a criminal Court would not debar an employer from exercising power of dismissal of

the employee in accordance with Rules and Regulations in force as the two proceedings - criminal

and departmental are entirely different.

Judgment

       Hon. C.K. Thakker, J.—Civil Appeal No. 4544 of 2005 is directed against the judgment and

order passed by the Division Bench of the High Court of Calcutta on February 6, 2004 in FMA No.

3093 of 2002 confirming the judgment and order passed by the learned single Judge on July 9,

2002 in Writ Petition No. 10667 (W) of 1999.

       2. Writ Petition No. 703 of 2004 is instituted by the petitioner in this Court under Article 32 of

the Constitution challenging the validity of Clause (vi) of Standing Order 20 of the Certified

Standing Orders of the Indian Oil Corporation Ltd.-respondent herein being arbitrary and against

the principles of natural justice.

       3. To appreciate the controversy raised in the matters, relevant facts may be stated in brief.

       The appellant in Civil Appeal No. 4544 of 2005 (petitioner in Writ Petition No. 703 of 2004)

joined the service of Indian Oil Corporation (‘Corporation’ for short) at Haldia Refinery in 1973. He

was a senior officer of the Corporation. He asserted that all throughout his service record was

good and satisfactory. He was sincere and efficient and has worked with dedication. At several

occasions, he received appreciation for his work. There was no grievance or complaint by the

authorities and he continued to be a ‘devoted employee’ of the Corporation. It was, no doubt,

stated that in 1987, a charge sheet was issued against him but according to the appellant,

subsequently, the Corporation was satisfied on the explanation submitted by the appellant that

there was no substance in the allegations and the same was, therefore, withdrawn. On 11th

March, 1988, the appellant was promoted as Operator ‘A’ Special Grade. It is the case of the

appellant that his next door neighbour was one Mrs. Parul Jana, who was Sister-in-Charge in the

Refinery Hospital at Haldia. Parul Jana was treating the appellant as her brother. The relationship

between both the families was close and cordial and whenever necessary, Parul Jana used to call

the appellant as one of her family members. Parul Jana suddenly developed heart problem in

May, 1999. She was, therefore, required to be admitted for treatment in Apollo Hospital, Madras.

At late night hours on 5th May, 1999, two sons of Parul Jana rushed to the appellant in grave

anxiety and informed him that they failed to get positive information about their mother and they

were extremely worried. They, therefore, requested the appellant to extend his helping hand to get

proper information about the health of their mother. The appellant advised them to go to the

Refinery Hospital. Since the Refinery Hospital, Haldia had referred the case of Parul Jana to

Apollo Hospital, Madras, they would be able to get information from Haldia Hospital. Sons of Parul

Jana requested the appellant to accompany them to the hospital. The appellant being an

employee and well-known for his work in the hospital, could not refuse the reasonable request of

two persons and accordingly accompanied them. On reaching the hospital, they found the office of

the Chief Medical Officer, Dr. Bhattacharya, open and he was also available. According to the

appellant, two sons of Parul Jana approached Dr. Bhattacharya and requested him to give

information about their mother who was ailing and admitted to Apollo Hospital, Madras. Dr.

Bhattacharya said nothing in spite of repeated requests by sons of Parul Jana. On the contrary,

Dr. Bhattacharya without any reason, flared up and told them that he was not supposed to provide

information about Parul Jana to anyone and everyone. When sons of Parul Jana insisted to have

information from Dr. Bhattacharya, the latter told them that they should not worry about their

mother and in the event of her death, the Corporation would arrange to bring the dead body from

Apollo Hospital, Madras to Haldia and the body would be handed over to the sons. According to

the appellant, he continued to be a silent spectator all throughout. Sons of Parul Jana were

seriously shocked and disturbed on such statement being made and they raised objection against

the behaviour of Dr. Bhattacharya. Dr. Bhattacharya called several persons in the hospital and

directed them to throw all persons including the appellant out of the hospital premises. Sons of

Parul Jana could not control themselves. The appellant was also not spared. Being a heart patient

and already had undergone heart surgery, he was very much upset as outsiders brought by Dr.

Bhattacharya started pushing and dragging the persons including the appellant and sons of Parul

Jana out of the hospital. The appellant was bewildered and motionless for some time. The

appellant apprehended that Dr. Bhattacharya would create a situation which may adversely affect

appellant’s health. There was heated exchange of words which resulted in commotion. There was

scuffle on the arrival of outsiders and two sons of Parul Jana out of hospital premises. The

appellant immediately contacted the General Manager (Projects) and requested him to help to

control the situation. When the General Manager reached the hospital, the appellant explained the

situation to him. The General Manager also met Dr. Bhattacharya to get true and correct facts as

to how the incident had happened. The General Manager then advised the appellant to go back.

Immediately, the appellant left the hospital. In the entire incident, asserted the appellant, save and

except accompanying sons of Parul Jana, he did nothing. He was not involved in the incident in

any manner whatsoever. It was the Chief Medical Officer, who alone was responsible for the entire

unfortunate situation. He also inflicted injuries on two sons of Parul Jana. Dr. Bhattacharya,

however, cooked up a false case against the appellant alleging that the appellant had assaulted

and injured him. On 6th May, 1999, i.e. on the next day, the Chief Medical Officer, Dr.

Bhattacharya reported to the management that at the late night hours of 5th May, 1999, the

appellant led by a bunch of hooligans had visited the hospital, assaulted him, i.e. Dr. Bhattacharya

and abused and threatened other officers. On the basis of the said complaint, on the same day,

i.e., on 6th May, 1999, the General Manager of the Corporation dismissed the appellant for

allegedly assaulting the Chief Medical Officer. No notice was issued, no explanation was sought,

no charge sheet was filed, no disciplinary enquiry was instituted and no opportunity of hearing was

afforded to the appellant. It was stated that in the interest of security of Refinery, the General

Manager had to take firm action immediately. Criminal proceedings were also initiated and a

criminal case was filed against the appellant for offences punishable under Sections 147, 149,

341, 323 and 506 of the Indian Penal Code. The General Secretary of Haldia Refinery Employees’

Union objected to unlawful and arbitrary dismissal of the appellant and wrote a letter to the

Corporation requesting it to reinstate the appellant. No positive action, however, was taken by the

Corporation. In the circumstances, the appellant was constrained to approach the High Court of

Calcutta by filing a Writ Petition on May 12, 1999. On May 13, 1999, the learned single Judge, in

view of the urgency of the matter, dispensed with the requirement of Writ Rules, took up the matter

for admission-hearing and directed the appellant to serve copies of the writ petition alongwith

annexures upon all respondents within a week and to file affidavit of service on the next returnable

date which was fixed as 28th June, 1999. Ex parte ad-interim relief was also granted till June 30,

1999. Being aggrieved by the order passed by the learned single Judge granting ex parte ad-

interim relief, the Corporation approached the Division Bench and the Division Bench by an order

dated June 22, 1999 set aside the order passed by the learned single Judge. According to the

Division Bench, in the facts and circumstances of the case, it was not proper for the learned single

Judge to have passed ex parte ad-interim order. The appeal was accordingly disposed of. So far

as criminal case is concerned, the learned Judicial Magistrate before whom the case was placed

for hearing disposed it of on 5th April, 2002 and the appellant was acquitted. The Writ Petition

came up for hearing before the learned single Judge who dismissed it on July 9, 2002. The

appellant preferred an appeal before the Division Bench against the order passed by the learned

single Judge which, as stated above, came to be dismissed by the Division Bench. Against the

said order, the appellant had approached this Court by filing Special Leave Petition on May 17,

2004.

       4. When the matter was placed for admission on July 27, 2004, notice was issued by this

Court. On July 25, 2005, it was placed before a two Judge Bench. Leave was granted and the

Court passed the following order :

       “Delay condoned.

       Leave granted.

       In view of the fact that there are conflicting decisions in the case of Workmen of Hindustan

Steel Ltd. vs. Hindustan Steel Ltd. & Ors. reported in 1984 (Suppl.) SCC 554 and in the case

Haripada Khan vs. Union of India & Ors. reported in 1996(1) SCC 536 it will be appropriate that

this matter be considered by a larger Bench. Papers be placed before Hon’ble the Chief Justice for

necessary orders.”

       5. It may be stated at this stage that on November 20, 2004, the appellant herein instituted a

substantive petition under Article 32 of the Constitution and challenged the validity and vires of

Clause (vi) of Standing Order 20 of the Certified Standing Orders of the Indian Oil Corporation

since he had not challenged the validity of the Standing Orders before the High Court of Calcutta.

On January 20, 2005, notice was issued and the Writ Petition was ordered to be tagged with

S.L.P. (C) No. 21248 of 2004 Civil Appeal No. 4544 of 2005). That is how, both the matters have

been placed before us.

       6. We have heard the learned counsel for the parties.

       Mr. P.P. Rao, learned Senior Advocate, appearing on behalf of the appellant contended that

the respondent-Corporation is ‘State’ within the meaning of Article 12 of the Constitution and every

action of the Corporation, therefore, must be in conformity with the fundamental rights guaranteed

by Part III of the Constitution. According to him, Standing Order 20, and in particular Clause (vi)

thereof, is arbitrary, irrational and ultra vires Article 14 of the Constitution inasmuch as it

empowers and authorizes the General Manager of the Corporation to dismiss an employee

without following the rule of audi alteram partem and without observing the principles of natural

justice. Such a rule, submitted Mr. Rao, violates the fundamental principles of justice and infringes

Article 14. A similar provision in the nature of second proviso to Article 311(2) of the Constitution

have been interpreted in several cases by this Court and it has been held that save and except

grave situations, no employee can be dismissed or removed from service without observing the

rules of natural justice. Such provisions have also been held to be bad and against public policy

under Section 23 of the Contract Act, 1872. Even if there is a term in the contract or in a Rule, it is

liable to be struck down as arbitrary and ultra vires Article 14 as also Article 311(2) of the

Constitution. The counsel also submitted that the learned single Judge as well as the Division

Bench were wrong in not relying upon the decisions cited at the Bar and in mechanically and

blindly applying Clause (vi) of the Standing Order 20.

       7. Even on merits, the appellant could not be held liable. He had merely accompanied the two

sons of Parul Jana to the hospital. The unfortunate incident was the result of the behaviour of the

Chief Medical Officer for which, he alone was responsible and the appellant could not be punished

for the misdeeds of Dr. Bhattacharya. It was further submitted by Mr. Rao that this is a fit case in

which necessary guidelines are required to be issued by this Court so that blanket and

uncanalised power under the said provision may not be misused by the General Manager. It was

also submitted that when the criminal case was registered against the appellant and he was

acquitted of the charges leveled against him, it was incumbent on the Corporation to reinstate him

in service with full back wages. Finally, it was submitted that the appellant has reached the age of

superannuation. The question of reinstatement is thus academic. It was, therefore, prayed that

keeping in view the totality of facts, the order passed by the General Manager may be quashed

and set aside by directing the respondent to extend monetary benefits to the appellant.

       8. The learned counsel for the respondent-Corporation, on the other hand, supported the

order. It was stated that the appellant cannot be said to be an employee holding “civil post” under

Part XIV of the Constitution and, as such, he cannot claim protection of Article 311. He is

governed by the Rules, Regulations and Standing Orders of the Corporation. The Corporation is

governed by the Certified Standing Orders. Clause (iii) of Standing Order 20 provides for

disciplinary enquiry against an employee of the Corporation and taking of appropriate action on

the basis of such enquiry. Clause (vi) of Standing Order 20, however, deals with special procedure

in certain cases and empowers the General Manager to dismiss or remove a workman in certain

circumstances. In bona fide exercise of the said power, the General Manager passed an order on

6th May, 1999 and dismissed the appellant from service. The order is a speaking order recording

reasons as to what compelled the General Manager to treat the case as exceptional in nature and

the General Manager was constrained to exercise his power under the said provision. It was also

submitted that from the order, it is clear that the appellant misbehaved with the staff of the hospital

and assaulted the Chief Medical Officer and caused injuries. To ensure maintenance of discipline

and taking into account several statements, the General Manager had taken the impugned action.

Such an action cannot be said to be arbitrary, irrational or abuse of power. The counsel submitted

that acquittal by a criminal court is hardly a relevant factor so far as exercise of power by the

General Manager is concerned. Standing Order 20(vi) relates to special procedure in cases of

exceptional nature. Such a provision cannot be said to be ultra vires Article 14 of the Constitution.

As far as Article 311 is concerned, it does not apply to employees of the Corporation and hence, it

cannot be invoked or pressed into service by the appellant. It was further submitted that the

appellant had challenged the order of dismissal by filing a petition but he did not challenge the

validity or vires of Clause (vi) of Standing Order 20 before the learned single Judge or before the

Division Bench and argued the matter on merits and the case was decided against him. He,

therefore, now cannot be permitted to challenge the validity of Clause (vi) of Standing Order 20

before this Court as such challenge would be barred by res judicata or by constructive res

judicata. It was also submitted that the order passed by the General Manager is subject to appeal

under Standing Order 21 of the Standing Orders and the appellant had exercised the said right by

filing an appeal. The Appellate Authority considered the relevant provisions of Standing Orders as

also the order dated 6th May, 1999 passed by the General Manager and having applied its mind to

the facts and circumstances, dismissed the appeal observing that there was no ground to interfere

with the punishment imposed on the appellant. It was, therefore, submitted that no case has been

made out by the appellant and the appeal deserves to be dismissed. Since the appellant had not

challenged the validity of Clause (vi) of Standing Order 20 before the High Court, his petition is not

maintainable and may also be dismissed.

       9. Having heard the learned counsel for the parties, we are of the view that the appeal as well

as the writ petition deserve to be dismissed. So far as preliminary objection as to maintainability of

the petition in this Court and the applicability of res judicata in the appeal is concerned, it is true

that the appellant had not taken the ground as to vires of Clause (vi) of Standing Order 20 either

before the learned single Judge or before the Division Bench of the High Court. At the same time,

however, when he has approached this Court against the decision of the High Court and has

raised this ground, it would not be appropriate to preclude him from arguing the case on the vires

or validity of Clause (vi) of the Standing Order 20. Moreover, he has also filed a substantive

petition for the said purpose under Article 32 of the Constitution. The preliminary objection,

therefore, does not impress us and we have allowed both the parties to argue the case on vires of

Standing Order 20(vi) as well as on merits.

       10. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the

said order does not preclude the Corporation from taking an action if it is otherwise permissible. In

our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an

employer from exercising power in accordance with Rules and Regulations in force. The two

proceedings - criminal and departmental - are entirely different. They operate in different fields and

have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on

offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to

impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made

by the accused in certain circumstances or before certain officers is totally inadmissible in

evidence. Such strict rules of evidence and procedure would not apply to departmental

proceedings. The degree of proof which is necessary to order a conviction is different from the

degree of proof necessary to record the commission of delinquency. The rule relating to

appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof

is on the prosecution and unless the prosecution is able to prove the guilt of the accused ‘beyond

reasonable doubt’, he cannot be convicted by a court of law. In departmental enquiry, on the other

hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of

‘preponderance of probability’. Acquittal of the appellant by a Judicial Magistrate, therefore, does

not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation.

We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by

a criminal court, the impugned order dismissing him from service deserves to be quashed and set

aside.

       11. As far as the status of the appellant is concerned, it must be stated that Mr. Rao, Senior

Advocate fairly conceded at the hearing of the appeal and the writ petition that the appellant is not

governed by Article 311 of the Constitution since he cannot be said to be ‘civil servant’. In this

connection, it will be profitable to refer to a decision of the Constitution Bench of this Court in Dr.

S.L. Agarwal vs. General Manager, Hindustan Steel Limited (Hindustan Steel Limited I); (1970) 3

SCR 363; (1970) 1 SCC 177. In that case, A was appointed as Assistant Surgeon by the Board of

Directors of the Corporation for one year. After completion of the probation period, he was

employed on contract basis and his services were terminated in accordance with the terms of the

contract. He filed a writ petition in the High Court contending that his services were wrongly

terminated which was violative of Article 311 of the Constitution. The Corporation contended that

Article 311 was not applicable to him as he was employed by the Corporation and he neither

belonged to Civil Service of the Union nor held a civil post under the Union.

       12. Upholding the objection and considering the ambit and scope of Article 311, this Court

held that an employee of a Corporation cannot be said to have held a ‘civil post’ and, therefore,

not entitled to protection of Article 311. According to the Court, the Corporation could not be said

to be a ‘department of the Government’ and employees of such Corporation were not employees

under the Union. The Corporation has an independent existence and the appellant was not

entitled to invoke Article 311. Hindustan Steel Limited (I) has been followed by this Court in

several cases. [See Sukhdev Singh & Others v. Bhagatram Sardar Singh Raghuvanshi & Another,

(1975) 1 SCC 421; Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449; A.L. Kalra v. Project

& Equipment Corporation of India Ltd., (1984) 3 SCC 316; Tekraj Vasandi v. Union of India &

Others, (1988) 1 SCC 236; Pyare Lal Sharma v. Managing Director & Others, (1989) 3 SCC 449;

State Bank of India v. S. Vijay Kumar, (1990) 4 SCC 481; Satinder Singh Arora v. State Bank of

Patiala, (1992) Supp 2 SCC 224]

       13. In view of the above pronouncements of this Court, there is no doubt that the respondent-

Corporation is right in submitting that the appellant cannot invoke Article 311 by describing him as

holding ‘civil post’ under the Union or a State. Article 311 of the Constitution, therefore, has no

application to the facts of the case.

       14. Mr. Rao, however, placed strong reliance on a decision of two Judge Bench of this Court

in Workmen of Hindustan Steel Limited & Another vs. Hindustan Steel Limited & Others,

(Hindustan Steel II); (1984) Supp SCC 554. In that case, the employer dismissed a workman

without holding enquiry and without giving him an opportunity of being heard. The power was

exercised under Standing Order 32 of the Certified Standing Orders of Corporation.

       Stand Order 32 read thus :

       “32. Special Procedure in certain cases.—Where workman has been convicted for a criminal

offence in a court of law or where the General Manager is satisfied, for reasons to be recorded in

writing, that it is inexpedient or against the interests of security to continue to employ the workman,

the workman may be removed or dismissed from service without following the procedure laid

down in Standing Order 31.”

       15. The language of Standing Order 32 is ‘more or less’ similar to Standing Order 20(vi) of the

Certified Standing Orders of the respondent-Corporation which reads as under;

       “Where a workman has been convicted for a criminal offence in a Court of Law or where the

General Manager is satisfied for reasons to be recorded in writing, that it is neither expedient nor

in the interest of security to continue the workman, the workman may be removed or dismissed

from service without following the procedure laid down under III of this Clause.”

       16. The workman challenged the action inter alia on the ground that provision of Standing

Order 32 is irrational, arbitrary and violative of Article 311. The Court proceeded to consider the

objection against Standing Order 32 on the touchstone of Article 311. Describing the provision as

‘archaic standing order reminiscent of the days of hire and fire’ relied upon by a public sector

undertaking to sustain an utterly unsustainable order and to justify an action taken in violation of

the principles of natural justice, the Court stated that such a provision could not stand.

Reproducing Article 311 of the Constitution, the Court held that the minimum requirement of

observance of principle of natural justice could not be dispensed with and the action taken by the

Corporation was illegal and unlawful. The Court, therefore, directed the Corporation to ‘recall and

cancel the order’ by reinstating the workman. The Corporation was granted an opportunity to

recast its Standing Order 32 to be brought in conformity with the second proviso to Article 311(2)

of the Constitution.

       17. The endeavour of Mr. Rao before us is that the above case was a case of termination of

service of an employee of the Corporation. The Standing Order which came up for consideration in

that case was ‘more or less’ similar to the Standing Order with which we are concerned. In spite of

the fact that the employee was engaged by the Corporation, the Court considered the provisions

of Article 311 of the Constitution and the principles applicable to civil servants. It was, therefore,

submitted that in the present case also, the ratio laid down in that case may be applied and the

impugned order passed by the Corporation may be set aside.

       18. We are unable to agree with Mr. Rao. It is no doubt true that the provision which came up

for consideration before a two Judge Bench in Hindustan Steel Limited (II) was against an order

passed by the Corporation. It was similar to Clause (vi) of Standing Order 20 which this Court is

called upon to consider. At the same time, however, it cannot be overlooked that two Judge Bench

proceeded to consider the validity of the provision on the anvil of Article 311 which could not be

attracted as it was not applicable. The point was settled and finally decided by the Constitution

Bench of this Court in Hindustan Steel Limited (I). Unfortunately, however, the attention of the

Court was not invited to the said case and in Hindustan Steel Limited (II), the Court proceeded as

if the employees of the Corporation were governed by Article 311. Hindustan Steel Limited (II) is

thus per incuriam. It could not have applied Article 311 had the attention of the two Judge Bench

been drawn to the decision of the Constitution Bench in Hindustan Steel Limited (I).

       19. At the time of admission hearing, reference was also made to another two Judge Bench

decision of this Court in Hari Pada Khan vs. Union of India & Others, (1996) 1 SCC 536. In that

case, the petitioner who was a permanent staff member of Indian Oil Corporation was involved in

theft of oil and a First Information Report was lodged against him. On the basis of that report, a

criminal case was registered and he was arrested. Relying on Standing Order 20(iv) of the

Corporation, he was dismissed from service. Standing Order 20(iv), as then stood, was similar to

present Standing Order 20(vi) and empowered and General Manager of the Corporation to

dismiss a workman if he had been convicted for a criminal offence in a court of law or if the

General Manager was satisfied for reasons to be recorded in writing that it was neither expedient

nor in the interest of the Corporation to continue the workman in service.

       Standing Order 20(iv) read thus;

       “Where a workman has been convicted for a criminal offence in a Court of Law or where the

General Manager is satisfied for reasons to be recorded in writing, that there is neither expedient

nor in the interest of security to continue the workman, the workman may be removed or

dismissed from service without following the procedure laid down under III of this clause.”

       20. The action of the Corporation was challenged by the dismissed employee. Upholding the

order of the Corporation, this Court held that the action could be taken. The Court stated that the

rule had been made by the Corporation with the intention to prevent an employee of the

Corporation served with a charge sheet and arrest in furtherance thereof from continuing in

service.

       21. Mr. Rao, however, placed reliance on the following observations:

       “Of course it would be subject to the result of the trial. Continuance of the officer involved in

an offence would be an affront to good and disciplined conduct of workmen. His continuance in

service of the Corporation would demoralize the service. Therefore, it was most expedient in the

public interest not to hold any further enquiry and terminate his services forthwith. However, it

would be subject to the result of the trial.”

       22. The endeavour of Mr. Rao is that this Court had expressly stated in Hari Pada Khan that

an order of dismissal from service would be subject to result of the trial. In the present case, a

criminal case was registered against the appellant and he was prosecuted. The prosecution,

however, resulted in acquittal of the appellant. As per the ratio in Hari Pada Khan, submitted Mr.

Rao, the appellant is entitled to reinstatement.

       23. We are unable to accept the contention. It is true that in Hari Pada Khan, this Court upheld

the order of dismissal by expressly observing that it would be subject to result of trial but what Mr.

Rao forgets is that in Hari Pada Khan, the power was exercised by the General Manager not

under the second part of the Standing Order 20 (iv), but on the first part thereof, which covered

cases of conviction of a workman for a criminal offence. The second part dealt with satisfaction of

the General Manager about expediency of not keeping a workman in service. Since the power was

exercised by the General Manager on the first part and the basis was registration of a of criminal

case against the workman, obviously, this Court was justified in observing that when the action

was taken on the basis of pendency of a criminal case, the action of dismissal of the workman

must abide by the result of the trial. The facts of the case before us are totally different. In this

case, the General Manager has exercised the power under the second part of the Standing Order

20(vi) which empowered him to take action on satisfaction for reasons to be recorded in writing

that it was not in the interest of security to continue the workman in service. The direction in Hari

Pada Khan, therefore, does not apply to the factual matrix of the present case for claiming relief by

the appellant.

       24. The appellant in Hari Pada Khan relied upon Hindustan Steel Limited (II), and submitted

that in that case, this Court struck down a similar provision being violative of natural justice and

also violative of Article 14. The Court, however, held that the principles of natural justice had no

application when the authority was of the opinion that it would be inexpedient to hold an enquiry

and it would be against the interest of security of the Corporation to continue in employment the

offender workman when serious acts were likely to affect the foundation of the institution. The

Court also noted that a similar provision was held valid and intra vires by this Court in Mathura

Refinery Mazdoor Sangh v. Deputy Chief Labour Commissioner & Others. Special Leave Petition

(Civil) No. 11659 of 1992, decided on November 13, 1995.

       25. Mr. Rao then contended that even though the provision of Article 311 of the Constitution

do not apply to the appellant being an employee of the Corporation, the general principles behind

the said provision would apply to the employees of the Corporation also. He, therefore, submitted

that while dealing with the case of an employee of the Corporation, second proviso to Article

311(2) and the decisions of this Court in interpreting the said provision would be kept in mind by

the Court. He also submitted that the Corporation, being the “State” within the meaning of Article

12 of the Constitution, Article 14 would apply to the respondent and an order passed or action

taken arbitrarily and without complying with the principles of natural justice must be held null and

void.

       26. Reference in this connection was made to a decision of Constitution Bench in Union of

India & Another vs. Tulsi Ram Patel, (1985) 3 SCC 398. In Tulsi Ram Patel, certain civil servants

were dismissed from service by way of penalty by the Government by invoking the second proviso

to Article 311(2) of the Constitution. They challenged the validity of the orders inter alia on the

ground that the action was against the principles of natural justice and second proviso to Article

311(2) could not have been invoked. This Court was, therefore, called upon to consider the legality

and validity of the orders in the light of the provisions of Article 311(2) and observance of

principles of natural justice.

       27. By majority of 4 : 1, the Court upheld the action of the Government of invoking exceptional

power under the second proviso to Article 311(2). The Court observed that the principles of natural

justice have come to be recognized as a part of the guarantee contained in Article 14 of the

Constitution and violation thereof would mean that the action would be arbitrary and irrational. The

Court also stated that Article 311(2) required that before a civil servant is dismissed, removed or

reduced in rank, an enquiry must be held and reasonable opportunity of being heard must be

afforded to him in respect of the charges leveled against him. The Court, however, observed that

in certain circumstances, application of the principles of natural justice could be modified and even

excluded. Both in England and in India, it is well established that where a right to a prior notice and

an opportunity to be heard before an order is passed would obstruct in taking of prompt action,

such a right could be excluded. It could also be excluded where the nature of the action to be

taken, its object and purpose and the scheme of the relevant statutory provisions warrant its

exclusion. The maxim audi alteram partem could not be invoked if import of such maxim would

have the effect of paralyzing the administrative process or where the need for promptitude or the

urgency so demands. The Court stated that if legislation and the necessities of a situation can

exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a

provision of the Constitution, for a constitutional provision has a far greater and all pervading

sanctity than a statutory provision. It also stated that the principles of natural justice having been

expressly excluded by a constitutional provision, namely, the second proviso to Article 311(2), it

could not be reintroduced by a side door by providing for the enquiry. The Court, however,

hastened to add that where the second proviso to Article 311(2) is applied on an extraneous

ground or a ground having no relation to the situation envisaged in that clause, the action would

be mala fide and void. In such a case, invalidating factor may be referable to Article 14. The

second proviso to Article 311(2) was based on public policy, in public interest and for public good

and it must be given effect to. Regarding opportunities to such Government servants who have

been dealt with in exercise of power under the second proviso to Article 311(2), the Court stated:

       “In this connection, it must be remembered that a government servant is not wholly without

any opportunity. Rules made under the proviso to Article 309 or under Acts referable to that article

generally provide for a right of appeal except in those cases where the order of dismissal, removal

or reduction in rank is passed by the President or the Governor of a State because they being the

highest constitutional functionaries, there can be no higher authority to which an appeal can lie

from an order passed by one of them. Thus, where the second proviso applies, though there is no

prior opportunity to a government servant to defend himself against the charges made against

him, he has the opportunity to show in an appeal filed by him that the charges made against him

are not true. This would be a sufficient compliance with the requirements of natural justice. In

Maneka Gandhi case and in Liberty Oil Mills v. Union of India, the right to make a representation

after an action was taken was held to be a sufficient remedy, and an appeal is a much wider and

more effective remedy than a right of making a representation.”

       28. The submission of Mr. Rao is that second proviso to Article 311(2) deals with three

situations,

       (i) where a person is convicted on a criminal charge;

       (ii) where the disciplinary authority is satisfied for the reasons to be recorded in writing that it

is not reasonably practicable to hold an enquiry; and

       (iii) where the President or Governor is satisfied that in the interest of the security of the State,

it is not expedient to hold an enquiry.

       29. According to Mr. Rao, Clause (vi) of Standing Order 20 likewise takes into account two

eventualities;

       (i) conviction of a workman for a criminal offence by a court of law; and

       (ii) satisfaction of the General Manager for reasons to be recorded in writing that it is neither

expedient nor in the interest of security to continue a workman.

       30. He submitted that the power under Clause (vi) of Standing Order 20 is a serious inroad on

the right of a workman and must be construed strictly. In other words, it is a drastic provision which

totally excludes application of natural justice and audi alteram partem rule and that too on

satisfaction of General Manager and not of the Corporation. Clause (c) of second proviso to Article

311(2) of the Constitution envisages the satisfaction of constitutional functionary, i.e. President of

India or Governor of a State. In the case of the respondent-Corporation, however, the power is

conferred on General Manager - an officer of the Corporation. If this provision is upheld, there is

every possibility and likelihood of power being abused or misused. Such provision must, therefore,

be held arbitrary and ultra vires of Article 14.

       31. We are unable to agree with the learned counsel. The law is clear on the point. Tulsi Ram

Patel dealt with a similar provision and held it to be constitutionally valid and intra vires Article 14.

Since it related to civil servants under the Union or under a State, Clause (c) provided for the

satisfaction by the President or the Governor, as the case may be, “in the interests of the security

of the State”. Certified Standing Orders of the respondent-Corporation have limited application to

the Corporation. There was, therefore, no question of security of State and hence, the limited

power is conferred on the General Manager of security of the Corporation. General Manager is the

highest administrative head of the Corporation. So it cannot be contended that the power has

been conferred on a petty officer of the Corporation.

       32. We are equally not impressed and hence unable to uphold the contention that Clause (vi)

of Standing Order 20 confers blanket or uncanalised power on the General Manager. In our

judgment, sufficient guidelines and safeguards have been provided in the Standing Orders,

themselves, such as (i) the power is conferred on the highest administrative head of the

Corporation; (ii) eventualities have been specifically and expressly stated in Clause (vi) of

Standing Order 20; (iii) satisfaction of the General Manager that such an eventuality has arisen;

(iv) recording of reasons in writing; and (v) right of appeal against the decision of the General

Manager. Such a provision, in our considered view, cannot be held arbitrary or unreasonable,

violative of Article 14 of the Constitution.

       33. Mr. Rao may be right in submitting that in a given case, the General Manager may not

exercise the power legally, properly and reasonably. In that case, the action would be held bad.

Apart from the fact that there is an appeal against the order passed by the General Manager, an

aggrieved party can also approach a High Court under Article 226/227 of the Constitution and/or

this Court under Article 32/136 of the Constitution. Judicial review conferred on High Courts and

on this Court by the Constitution remains unfettered and unaffected.

       34. It is well settled that a provision which is otherwise legal, valid and intra vires cannot be

declared unconstitutional or ultra vires merely on the ground that there is possibility of abuse or

misuse of such power. If the provision is legal and valid, it will remain in the statute book.

Conversely if the provision is arbitrary, ultra vires or unconstitutional, it has to be declared as such

notwithstanding the laudable object underlying it.

       35. Before about five decades in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti & Anr.

1955(2) SCR 1196, dealing with a similar contention, speaking for the Constitution Bench,

Bhagwati, J. stated;

       “It is to be presumed, unless the contrary were shown that the administration of a particular

law would be done “not with an evil eye and unequal hand” and the selection made by the

Government of the cases of persons to be referred for investigation by the Commission would not

be discriminatory.”

       36. Again, in the leading case of State of Rajasthan & Others v. Union of India & Others,

(1977) 3 SCC 592, a seven-Judge Bench was called upon to consider a similar argument. It was

urged that extraordinary power conferred by Article 356 of the Constitution could be abused.

       Negativing the contention, Bhagwati, J. (as he then was) stated;

       “It must be remembered that merely bemuse power may sometime be abused, it is no ground

for denying the existence of the power. The wisdom of man has not yet been able to conceive of a

government with power sufficient to answer all its legitimate needs and at the same time incapable

of mischief”. (emphasis supplied)

       37. Very recently, in Sushil Kumar Sharma v. Union of India & Others, (2005) 6 SCC 281,

constitutional validity of Section 498-A of the Penal Code was challenged inter alia on the ground

of its misuse and/or abuse. A prayer similar to one which has been made before us by Senior

Advocate Mr. Rao was also made in Sushil Kumar Sharma that in case the provision is held to be

constitutional and intra-vires, this Court may formulate “guidelines” so that innocent persons are

not victimized by unscrupulous elements making false accusations. Reiterating the principle that

mere possibility of abuse of legal provision would not make a statute invalid, the Court rejected the

prayer.

       38. Since, in our opinion, sufficient safeguards have been provided in the Standing Orders

and action taken by the General Manager under Standing Order 20(vi) could be challenged in

appeal under Standing Order 21 and in the High Court under Article 226/227 and in this Court

under Article 32/136 of the Constitution, the same cannot be held arbitrary, unreasonable or ultra

vires Article 14 of the Constitution. If in a given case, there is abuse or mis-use of power, such

action or order would be bad. It would, however not make Standing Order 20(vi) ultra vires.

       39. In our opinion, the learned counsel for the respondent - Corporation, is right that Standing

Order 21 which enables the aggrieved party to file an appeal is very wide. It reads thus:

       “21. Appeals:

       The authorities competent to impose various penalties mentioned in Standing Orders No. 20

as well as the appellate authorities shall be notified by the management from time to time. A

workman on whom any of the penalties is imposed shall have the right of appeal to the authority

notified in this behalf. The appeal shall be submitted within 15 days of receipt of the order of the

punishing authority, and the appellate authority, shall dispose of the appeal within 30 days of

receipt of the appeal.

       At the further enquiry, if any, held in the appeal, the workman concerned shall be afforded

reasonable opportunity of explaining and defending his action with the assistance of a co-worker

and the Presenting Officer may also be given the opportunity to furnish further evidence. The

appellate authority may also impose enhance penalty after giving an opportunity to the applicant to

show cause.”

       40. Plain reading of the above Standing Order makes it abundantly clear that a workman on

whom any of the penalties is imposed has a right to appeal and the Appellate Authority has to

decide such appeal of a workman in accordance with law after affording him reasonable

opportunity. It also allows the appellant-workman to have assistance of a co-worker. It, therefore,

cannot be said that once an action is taken under Clause (vi) of Standing Order 20, the matter is

over. In view of exceptional situation contemplated by Clause (vi) and on satisfaction of the

General Manager that an immediate action is necessary, he can dismiss or remove the workman.

Such workman, however, may invoke Standing Order 21 and may file an appeal and convince the

Appellate Authority that the action taken by the General Manager in purported exercise of power

under Standing Order 20(vi) was unlawful or improper. If the Appellate Authority is satisfied, it may

set aside the action of the General Manager and grant appropriate relief to the workman. Even if

the Appellate Authority holds against the workman and confirms the order of dismissal/removal,

judicial review is available to the aggrieved appellant, albeit on limited grounds. To us, therefore, it

is clear that the Standing Order 20(vi) allows the General Manager to take an action in emergency

keeping in view exceptional situation which has arisen and he is satisfied that the workman should

be removed or dismissed from service without following procedure laid down in Standing Order

20(iii). Whereas Standing Order 20(iii) deals with cases in general and provides enquiry and pre-

decisional hearing, Standing Order 20(vi) is an exception to the general rule and deals with special

cases under which an action can be taken. Since appeal is provided in all cases, the case is one

of post-decisional hearing.

       41. We are aware of the normal rule that a person must have a fair trial and a fair appeal and

he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of

the general principle that pre-decisional hearing is better and should always be preferred to post-

decisional hearing. We are further aware that it has been stated that apart from Laws of Men,

Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing

in human history was given in the Garden of Eden. God did not pass sentence upon Adam and

Eve before giving an opportunity to show cause as to why they had eaten forbidden fruit. [See R.

v. University of Cambridge, (1723) 1 Str 557]. But we are also aware that principles of natural

justice are not rigid or immutable and hence they cannot be imprisoned in a straight-jacket. They

must yield to and change with exigencies of situations. They must be confined within their limits

and cannot be allowed to run wild. It has been stated; “To do a great right after all, it is permissible

sometimes to do a little wrong”. [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India, (Bhopal

Gas Disaster); (1990) 1 SCC 613] While interpreting legal provisions, a court of law cannot be

unmindful of hard realities of life. In our opinion, the approach of the Court in dealing with such

cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather

than formal and practical rather than precedential’.

       42. Mr. Rao urged that the General Manager has mechanically and without considering the

facts of the case has passed the order under Standing Order 20(vi) and on that ground also, it

deserves to be set aside. Now, the order passed by the General Manager in the exercise of power

under Standing Order 20(vi) dated 6th May, 1999 is on record. It is a self-contained order. Detailed

reasons have been recorded by the General Manager inter alia stating that the appellant herein

had led a bunch of hooligans to Haldia Refinery Hospital and assaulted and abused Dr.

Bhattacharya, the Chief Medical Officer, when he was in the hospital alongwith other doctors

attending a critical patient in the indoors. The appellant had slapped, kicked, pushed around and

dragged Dr. Bhattacharya. The appellant alongwith his associates prevented anyone present there

from making any contact outside even on phone. On coming to know about the incident, some

officers reached the site. They were also abused and threatened by the appellant. The General

Manager then went through the complaints/reports of various persons present during and

immediately after the incident and on careful examination of the material, he was satisfied that the

appellant indulged himself in the acts of violence without any valid reason or compelling

circumstances or provocation. Those acts of appellant resulted into an atmosphere of terror being

created within the hospital premises. The doctors of the hospital have jointly submitted a

representation expressing their concern and demoralizing and terrorising effect that was created in

the minds of the hospital staff. The General Manager also noted that the situation had arisen out of

the incident which resulted into suspension of the hospital services resulting into great

inconvenience being caused to the residents of the Refinery Township. The Officers’ Association

which was the recognized Union had condemned the incident and demanded stern action. The

General Manager perused the Memorandum submitted to him by the representative of Indian

Medical Association of Haldia and Chaitanyapur Branches and the Association of Health Services

Doctors (WB), Haldia Branch, condemning the incident and assault on Dr. Bhattacharya. The

General Manager noted that the appellant was not directly connected with the case of Parul Jana,

the Head Sister-in-Charge of Haldia Hospital, who was undergoing treatment at Apollo Hospital,

Madras, which was reported to be undertaken on 3rd May, 1999 successfully. The General

Manager was satisfied that the acts of the appellant of threatening, intimidating and assaulting

senior officer of the Refinery Hospital and abusing and behaving unmannerly with superior

authority amounted to subversive and prejudicial to the interest of the Corporation. He was also

‘satisfied’ and ‘convinced’ that the said acts of misconduct were ‘very grave and serious’. Those

acts jeopardized the normal operation not only of the Refinery Hospital but also of the Corporation.

Besides carefully examining the facts and circumstances, the General Manager also examined the

past record of the appellant. The appellant was issued with a punishment of withholding four

annual increments with cumulative effect for acts of misconduct. The Management, however, took

a lenient and magnanimous view and revised the punishment twice, first on March 12, 1990 and

then on February 4, 1997, thereby bringing down the punishment to withholding of only one annual

increment with non-cumulative effect. According to the General Manager, the appellant indulged in

the acts of misconduct without any provocation or compelling circumstances. He was, therefore,

satisfied that for serious and grave acts, action was required to be taken again him. According to

the General Manager, keeping in view the magnitude of the issues involved and in the interest of

restoring and maintaining normal discipline and morale of employees of the Corporation, and the

Hospital Staff in particular and to immediately restore the confidence of the Officers’ community, of

their security in due discharge of their duties honourably and fearlessly, and in the interest of the

security of the Refinery, firm action was necessary. He was convinced that delay would seriously

jeopardize the interest of the Corporation especially the vial requirement of providing Medical

Services to the sick and needy and the serious impact the incident may have on the normal

operation of the Refinery. On those grounds, and in the facts and circumstances, the General

Manager was satisfied that it was not in the interest of the security of the Refinery and Staff to

continue the appellant in the employment of the Corporation and accordingly he had dispensed

with the enquiry under Standing Order 20(iii) and exercised power under Standing Order 20(vi)

and passed the impugned order. In our opinion, such action can never be termed arbitrary,

irrational or unreasonable.

       43. When the appellant preferred an appeal against the order passed by the General

Manager, the Appellate Authority considered the facts and circumstances of the case and

dismissed the appeal by an order dated 11th December, 2001. The Appellate Authority noted that

the appellant in his Memorandum of Appeal did not deny various acts of misconduct leading to the

serious incident of 6th May, 1999 at Haldia Refinery. The appellant also did not put forward any

explanation or provocation for the unfortunate incident but had accepted that he engaged in

certain acts which he would not like to remember. The Appellate Authority, therefore, held that the

acts of misconduct were ‘very grave and serious’ and were committed without provocation or

compelling circumstances.

       44. The Appellate Authority also observed that Dr. Bhattacharya sustained several injuries in

the attack. According to the report issued by Dr. Bimal Maiti, an independent doctor at Haldia

Hospital, Dr. Bhattacharya had the following injuries on his person;

       (1) large echymosis in front of right thigh;

       (2) large echymosis over right back of thing;

       (3) small abrasion over the nose (It);

       (4) large bruise over cheek (It);

       (5) multiples scratches over cheek;

       (6) tender bruise over right elbow; and

       (7) haematonia just below the right elbow.

       45. According to the Appellate Authority, therefore, the situation had arisen out of the incident

in which it was neither expedient nor in the interest of the security of the Refinery and its personnel

to continue the workman any more and the power was exercised by the General Manager under

Standing Order 20(vi). The Appellate Authority noted that in past also, the appellant had

committed misconduct but a lenient view was taken and the punishment imposed on him was

reduced. Such punishment, however, had no any deterrent effect on the appellant and he

repeated similar acts of misconduct in 1999. There was, therefore, no ground for further leniency.

Taking into account grave and serious misconduct committed and their likely repercussions on the

general discipline and safety of officers, the punishment imposed on him needed no interference.

Accordingly, the appeal was dismissed.

       46. In our view, in the facts and circumstances of the case, it cannot be said that either the

General Manager or the Appellate Authority in coming to the above conclusion had committed any

error of law which requires interference in the exercise of power of judicial review by this Court.

       47. In Satyavir Singh & Others v. Union of India & Ors. (1985) 4 SCC 252, a three-Judge

Bench of this Court has held that taking of appropriate action in exceptional circumstances is a

matter of assessment to be made by the disciplinary authority and must be judged in the light of

the circumstances then prevailing. Normally, it is the officer on the spot who is the best judge of

the situation and his decision should not be interfered with lightly. In Satyavir Singh, this Court

considered orders of dismissal passed against some of the employees of Research and Analysis

Wing (RAW) without holding inquiry as contemplated by Article 311(2) of the Constitution. The

power was exercised by the disciplinary authority under the second proviso to Article 311(2).

Reiterating the principles laid down in Tulsi Ram Patel and upholding the action, the Court

observed that there are circumstances in which such a drastic action is called for. The Court noted

that it was not possible to enumerate the cases in which it would not be reasonably practicable to

hold inquiry under Article 311(2), but certain illustrative cases have been highlighted which

included activities of terrorizing, threatening or intimidating witnesses who might be giving

evidence against a civil servant or threatening, intimidating or terrorizing disciplinary authority or

his family members or creating an atmosphere of violence or general indiscipline and

insubordination. The Court also indicated that though it was a mandate of the Constitution to

record reasons in writing for dispensing with an inquiry, it was not necessary that such reasons

should find place in the final order or they should be communicated to the delinquent. It was no

doubt emphasised that it would be better if such reasons are recorded in the order itself and

communicated to the delinquent officer. Regarding suspension of a civil servant, the Court opined

that it is not necessary that the civil servant should be placed under suspension until such time the

situation is improved and it becomes possible to hold inquiry against him. According to the Court, it

would be difficult to foresee how long the situation would last and when normalcy would return or

be restored.

       The Court then said;

       “In certain cases, the exigencies of a situation would require that prompt action should be

taken and suspending a civil servant would not serve the purpose and sometimes not taking

prompt action might result in the trouble spreading and the situation worsening and at times

becoming uncontrollable. Not taking prompt action may also be construed by the trouble-makers

as a sign of weakness on the part of the authorities and thus encourage them to step up their

activities or agitation. Where such prompt action is taken in order to prevent this happening, there

is an element of deterrence in it but this is an unavoidable and necessary concomitance of such

an action resulting from a situation which is not of the creation of the authorities.”

       48. In our opinion, ratio laid down in Central Inland Water Transport Corporation v. Brajo Nath

Ganguly, (1986) 3 SCC 156 and in Delhi Transport Corporation v. Delhi Transport Corporation

Mazdoor Congress, 1991 Supp (1) SCC 600 : JT (1990) 3 SC 725 is not relevant or applicable to

the case on hand. In those cases, power had been conferred on the authority to dispense with

services of a permanent/confirmed employee. This Court, therefore, held that such a provision

cannot be said to be in consonance with law. In Brajo Nath Ganguly, the Court observed that the

provision was against public policy reflected in Section 23 of the Contract Act, 1872 and the

provision was described as Henry VIII clause.

       49. We have also gone through the decision of the learned single Judge as well as of the

Division Bench. It is clear from the record of the case that the Writ Petition was filed by the

appellant immediately after the order of dismissal was passed against him and the learned single

Judge considered the legality of the order. The learned single Judge perused the relevant record

produced at the time of hearing and noted that the alleged incident did take place. All persons

requested for taking a strong action against the petitioner (appellant herein) and no lenient view

was called for. Even after sons of Parul Jana came down from the 1st floor and informed the

petitioner that their mother’s condition was stable, the petitioner continued the agitation. Being an

employee of the Corporation, the petitioner had no business to lead unruly mob resulting in

damage to property and assaulting the hospital-staff who were on duty and were treating patients

including a patient having cardiac treatment.

       The learned single Judge, therefore, concluded;

       “If such discipline is not considered to be grave, I do not know what more should be

appropriate to justify the order of dismissal”.

       50. When an intra-court appeal was filed against that order, the Division Bench again

considered the contentions raised by the appellant. Dealing with the argument that the documents

were not given, it was submitted on behalf of the Corporation that no such prayer was made. The

Court, therefore, observed relying on a decision of this Court in Aligarh Muslim University & Others

v. Mansoor Ali Khan, AIR 2000 SC 2783 that no prejudice had been caused to the appellant. The

Court examined the report and perused the record. It was disclosed from the material placed

before the Court that there was a situation which created disorder in the establishment for which

police had to be called for and the General Manager (PJ) in-charge had to rush late at night.

People were frightened and there was ultimatum by staff-members due to which there was a

possibility of break down of the entire system. The Division Bench, therefore, stated; “These are

situations with which the person at the spot has to deal with. The authority on the spot is the best

judge of the situation prevailing. It is he who has to assess the situation and take steps”. In the

light of prevailing circumstances, the Division Bench observed, the action could not be termed as

illegal, unlawful or perverse. Regarding mala fide, the Court noted that adequate material had not

been placed on record which would go to show that the order was malicious or mala fide. The

Division Bench, therefore, dismissed the appeal.

       51. In our view, neither the learned single Judge nor the Division Bench has committed any

error of law and/or of jurisdiction which deserves interference in exercise of discretionary

jurisdiction under Article 136 of the Constitution. As is clear, the situation has been created by the

appellant. It was very grave and serious and called for immediate stern action by the General

Manager. Exercise of extraordinary power in exceptional circumstances under Standing Order

20(vi) in the circumstances, cannot be said to be arbitrary, unreasonable or mala fide. It is well-

settled that the burden of proving mala fide is on the person making the allegations and the burden

is “very heavy”. [vide E.P. Royappa vs. State of Tamil Nadu & Anr. (1974) 4 SCC 3]. There is

every presumption in favour of the administration that the power has been exercised bona fide and

in good faith. It is to be remembered that the allegations of mala fide are often more easily made

than made out and the very seriousness of such allegations demands proof of a high decree of

credibility. As Krishna Iyer, J. stated in Gulam Mustafa & Others vs. State of Maharashtra & Others

(1976) 1 SCC 800; “It (Mala fide) is the last refuge of a losing litigant”.

       52. We hold Clause (vi) of Standing Order 20 of the Certified Standing Orders of the

respondent-Corporation valid, constitutional and intra vires Article 14 of the Constitution. We also

hold the action taken by the General Manager of the respondent - Corporation dismissing the

appellant - petitioner from service as legal and lawful. We thus see no substance either in the

appeal or in the writ petition and both are, therefore, dismissed. In the facts and circumstances of

the case, however, there shall be no order as to costs.

       Appeal dismissed.

This Product is Licensed to Rajasthan State Judicial Academ, , Jodhpur

1999 0 AIR(SC) 1416; 1999 0 AIR(SCW) 1098; 1999 2 JT 456; 1999 2 KLT(SC) 1702; 1999 1

LLJ 1094; 1999 2 Scale 363; 1999 3 SCC 679; 1999 2 SLR 338; 1999 3 Supreme 376; 1999 0

Supreme(SC) 398;

1999(3) Supreme 376

Supreme Court of India

(From Karnataka High Court)

S. Saghir Ahmad & V.N. Khare, JJ.

Capt. M. Paul Anthony -Appellant

versus

Bharat Gold Mines Ltd. & Anr. -Respondents

Civil Appeal No. 1906 of 1999

(Arising out of SLP (Civil) No. 12813 of 1998)

Decided on 30-3-1999

Counsel for the Parties :

For the Appellant : P.R. Ramasesh, Advocate.

For the Respondents : Tripurari Ray and Vineet Kumar, Advocates.

(i) Service Law - Department enquiry-Simultaneous disciplinary proceedings and criminal

proceedings-Permissibility of-No bar for simultaneous proceedings - How­ever, if

departmental proceedings and Criminal case are based on identical set of facts and

evidence are same without there being on iota of difference departmental pro­ceedings

cannot be proceeded with.

       Held :The conclusions which are deducible from various decisions of this Court

referred to above are :

        (i) Departmental proceedings and proceedings in a criminal case can proceed

simultaneously as there is no bar in their being conducted simultaneously, tho­ugh

separately.

        (ii) If the departmental proceedings and the criminal case are based on identical and

similar set of facts and the charge in the criminal case against the delinquent employee is

of a grave nature which involves complicated questions of law and fact, it would be

desirable to stay the departmental proceedings till the conclusion of the criminal case.

        (iii) Whether the nature of a charge in a criminal case is grave and whether

complicated questions of fact and law are involved in that case, will depend upon the

nature of offence, the nature of the case launched against the employee on the basis of

evidence and material collected against him during investigation or as reflected in the

charge sheet.

        (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to

stay the Departmental proceedings but due regard has to be given to the fact that the

departmental proceedings cannot be unduly delayed.

        (v) If the criminal case does not proceed or its disposal is being unduly delayed, the

departmental proceedings, even if they were stayed on account of the pendency of the

criminal case, can be resumed and proceeded with so as to conclude them at an early date,

so that if the employee is found not guilty his honour may be vindicated and in case he is

found guilty, administration may get rid of him at the earliest.

        (Para 21)

       In the instant case, the Superintendent of Police had raided the residential premises of

the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276

grams of ‘gold bearing sand’. It was on this basis that criminal case launched against him.

On the same set of facts, constituting the raid and recovery, depart­mental proceedings

were initiated against the appellant as the “recov­ery” was treated to be a ‘misconduct’. On

the service of the charge sheet, the appellant raised an objection that the departmental

proceedings may be stayed as the basis of these proceedings was the raid conducted at

his residence on which basis a criminal case had already been launched against him. He

requested that the decision of the criminal case may be awaited, but his request was turned

down. The request made a second time for that purpose also met the same fate. When the

appellant approached the High Court, liberty was given to the respondents to stay the

departmental proceedings if they considered it appropriate but they were directed to

dispose of the appellant’s appeal against the order by which he was placed under

suspension. The order of the High Court had no effect on the respondents and they

decided to continue with the departmental proceedings which could not be attended by the

appellant as he informed the Inquiry Officer that he was ill. His request for adjournment of

the departmental proceedings on that ground was acceded to and the proceedings

contin­ued ex-parte against him. He was ultimately found guilty of the charges and was

dismissed from service. (Para 22)

       As pointed out earlier, the criminal case as also the departmental proceedings were

based on identical set of facts, namely, ‘the raid conducted at the appellant’s residence and

recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a

copy of which has been placed before us, indicate that the charges framed against the

appellant were sought to be proved by Police Officers and Panch witnesses, who had

raided the house of the appellant, and had effected recovery. They were the only witnesses

examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came

to the conclusion that the charges were established against the appellant. The same

witnesses were examined in the criminal case but the court, on a consideration of the

entire evidence, came to the conclusion that no search was conducted nor was any

recovery made from the residence of the appellant. The whole case of the prosecution was

thrown out and the appellant was acquitted. In this situation, therefore, where the appellant

is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the

residence of the appellant were not proved, it would be unjust, unfair and rather oppressive

to allow the findings recorded at the ex-parte departmental proceedings, to stand. (Para 33)

       Since the facts and the evidence in both the proceedings, namely, the departmental

proceedings and the criminal case were the same without there being any iota of

difference, the distinction, which is usually drawn as between the departmental

proceedings and the criminal case on the basis of approach and burden of proof, would not

be ap­plicable to the instant case. (Para 34)

       Held consequently : In the peculiar circumstances of the case, specially having regard

to the fact that the appellant is undergoing this agony since 1987, we would not direct any

fresh departmental inquiry to be instituted against him on the same set of facts. The

appellant shall be reinstat­ed forthwith on the post of Security Officer and shall also be paid

entire arrears of salary, together with all allowances from the date of suspension till his

reinstatement, within three months. The appel­lant would also be entitled to his cost which

is quantified as Rs. 15,000/-. (Para 35)

       (ii) Service Law-Suspension-Subsistence allowance-Duty of employer-Non-payment of

subsistence allowance is an inhuman act-Act of non-payment of subsistence allowance

can be likened to slow-posioning-Provision for payment of subsistence allowance is only

to secure no-violation of right to life of employee-Non-payment of subsistence allowance

may vitiate departmental proceedings.

       Held : To place an employee under suspension is an unqualified right of the employer.

This right is conceded to the employer in service juris­prudence everywhere. It has even

received statutory recognition under service rules framed by various authorities, including

Govt. of India and the State Governments. (See : For example, Rule 10 of the Central Civil

Services (Classification, Control and Appeal) Rules. Even under the General Clauses Act,

this right is conceded to the employer by Section 16 which, inter alia, provides that power

to appoint includes power to suspend or dismiss. (Para 25)

       The order of suspension does not put an end to an employee’s service and he

continues to be a member of the service though he is not permitted to work and is paid

only Subsistence Allowance which is less than his salary. (Para 26)

       Service Rules also usually provide for payment of salary at a reduced rate during the

period of suspension. (See: Fundamental Rule 53). This constitutes the “Subsistence

Allowance”. If there is no provision in the Rules applicable to a particular class of service

for payment of salary at a reduced rate, the employer would be liable to pay full salary even

during the period of suspension. (Para 27)

       Exercise of right to suspend an employee may be justified on facts of a particular case.

Instances, however, are not rare where officers have been found to be afflicted by

“suspension syndrome” and the employees have been found to be placed under

suspension just for nothing. It is their irritability rather than the employee’s trivial lapse

which has often resulted in suspension. Suspension notwithstand­ing, non-payment of

Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an

employee. When the employee is placed under suspension, he is demobilised and the

salary is also paid to him at a reduced rate under the nick name of `Subsistence

Allowance’, so that the employee may sustain himself. If, therefore, even that amount is not

paid, then the very object of paying the reduced salary to the employee during the period of

suspension would be frustrated. The act of non-payment of Subsistence Allowance can be

likened to slow-poisioning as the employee, if not permitted to sustain himself on account

of non-payment of Subsistence Allowance, would gradually starve himself to death. (Paras

28 & 29)

       On joining Govt. service, a person does not mortgage or barter away his basic rights as

a human being, including his fundamental rights, in favour of the Govt. The Govt., only

because it has the power to appoint does not become the master of the body and soul of

the employee. The Govt. by providing job opportunities to its citizens only fulfils its

obligations under the Constitution, including the Directive Principles of the State Policy.

The employee, on taking up an employment only agrees to subject himself to the regulatory

meas­ures concerning his service. His association with the Government or any other

employer, like Instrumentalities of the Govt. or Statutory of Autonomous Corporations etc.,

is regulated by the terms of contract of service or Service Rules made by the Central or the

State Govt. under the Proviso to Article 309 of the Constitution or other Statuto­ry Rules

including Certified Standing Orders. The fundamental rights, including the Right to Life

under Article 21 of the Constitution or the basic human rights are not surrendered by the

employee. The provision for payment of Subsistence Allowance made in the Service Rules

only ensures non-violation of the right to life of the employ­ees. (Para 30)

       Since in the instant case the appellant was not provided any Subsistence Allowance

during the period of suspension and the adjournment prayed for by him on account of his

illness, duly support­ed by medical certificates, was refused resulting in ex-parte

proceedings against him, we are of the opinion that the appellant has been punished in

total violation of the principles of natural justice and he was literally not afforded any

opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also

before us that on account of his penury occasioned by non-payment of Subsistence

Allowance, he could not undertake a journey to attend the disciplinary proceedings, the

findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte,

stand vitiated. (Para 32)

       

Cases referred :

Delhi Cloth & General Mills Ltd. v. Kushal Bhan, 1960(3) SCR 227 : AIR 1960 SC 806 : 1960 LLJ

520 (SC). (Para 14)

Tata Oil Mills Company Ltd. v. Workmen, 1964(7) SCR 555 : AIR 1965 SC 155. (Para 15)

Jang Bahadur Singh v. Baij Nath Tiwari, 1969(1) SCR 134 : AIR 1969 SC 30. (Para 16)

Kusheshwar .. v. M/s. Bharat Cokins Coal Ltd. & Ors., 1988(4) SCC 319 : 1988 Supp. (2) SCR

821 : AIR 1988 SC 2118. (Para 17)

Nelson Motis v. Union of India & Ors., (1992) 4 SCC 711 : 1992 Supp. (1) SCR 325 : AIR 1992 SC

1981 : Relied on. (Para 18)

State of Rajasthan v. B.K. Meena & Ors., (1996) 6 SCC 417 : AIR 1997 SC 13 : 1997(1) LLJ 746

(SC) : Relied on. (Para 19)

Depot Manager, Andhra Pradesh State Road Transport Corpora­tion v. Mohd. Yousuf Miyan,

(1997) 2 SCC 699 : AIR 1997 SC 2232 : Relied on. (Para 20)

State of M.P. v. State of Maharashtra, 1977(2) SCR 555 : (1977) 2 SCC 288 : AIR 1977 SC 1466 :

Relied on. (Para 26)

State of Maharashtra v. Chanderbhan, 1983(3) SCR 337 : 1983(3) SCC 387 : AIR 1983 SC 803 :

Relied on. (Para 30)

Fakirbhai Fulabhai Solanki v. Presiding Officer & Anr., (1986) 3 SCC 131 : 1986(2) SCR 1059 :

AIR 1986 SC 1168 : Relied on. (Para 30)

Ghanshyam Dass Shrivastva v. State of Madhya Pradesh, (1973) 1 SCC 656 : AIR 1973 SC 1183.

(Para 30)

O.P. Gupta v. Union of India & Ors., (1987) 4 SCC 328 : Relied on. (Para 28) CIVIL PROCEDURE CODE : S.35 CRIMINAL PROCEDURE CODE : S.162 SERVICE LAW : .CONSTITUTION OF INDIA : Art.21, Art.226, Art.309 EVIDENCE ACT : S.27, S.32 GENERALCLAUSES ACT : S.16

Important Points

1. There is no bar for conducting simultaneous two parallel proceed­ings, one by way of disciplinary

proceedings and other is Criminal Court. But, if the facts and evidence in both the proceedings are

same and the charge in the criminal case against the delinquent employee is of a grave nature

which involves complicated questions of law and fact, it would be desirable to stay the

departmental proceedings till the conclusion of the criminal case.

2. Non-payment of subsistence allowance to a suspended employee is an inhuman act which can

be likened to slow-poisoning The provision for payment of Subsistence Allowance made in the

Service Rules only ensures non-violation of the right to life of the employ­ees.

3. On joining Govt. service, a person does not mortgage or barter away his basic rights as a

human being, including his fundamental rights, in favour of the Govt.

Judgment

       S. Saghir Ahmad, J.-Leave granted.

       2. Whether departmental proceedings and proceedings in a criminal case launched on the

basis of the same set of facts can be continued simul­taneously is a question which crops up

perennially in service matters and has once again arisen in this case in the following

circumstances.

       3. Bharat Gold Mines Ltd. (Respondent No. 1) is a Govt. undertaking at Kolar Gold Fields in

Karnataka, where the appellant was appointed as a Security Officer on 31-10-1983. On 2nd of

June, 1985, a raid was conducted by the Superintendent of Police at the house of the appel­lant

from where a mining sponge gold ball weighing 4.5 grams and 1275 grams of ‘gold bearing sand’

were recovered. Thereafter, on the same day, a First Information Report was lodged at the Police

Station and a criminal case was registered against the appellant, who was placed under

suspension on 3.6.1985. The next day, namely, on 4th of June, 1985, a charge-sheet was issued

proposing a regular departmental inquiry with regard to the recovery of the above articles from his

house. On 11th of June, 1985, the appellant made a representation to the Disciplinary Authority

denying the representation to the Discipli­nary Authority denying the allegations made against him

in the charge sheet and pleaded that the entire episode was a concoction. He prayed that the

departmental proceedings initiated against him may be dropped or may, in the alternative, be

postponed till the conclusion of the criminal proceedings against him on the basis of the First

Information Report lodged against him at the Police Station on 2.6.1985. The representation was

rejected on 19.6.1985 and the appellant was informed that the disciplinary proceedings would be

held against him on 1.7.1985.

       4. In the meantime, the appellant filed Writ Petition No. 10842 of 1985 in the Karnataka High

Court for a direction to restrain the respondents from proceeding with the disciplinary inquiry till the

conclusion of the criminal case as the appellant’s defence was likely to be prejudiced. This Writ

Petition was disposed of by the High Court on 19.8.1985 and a direction was issued to the

respondents to consider and dispose of the appellant’s appeal filed against the order of

suspension but liberty was given to the respondents to defer the disciplinary proceedings if it was

found expedient so to do. The respondents did not defer the departmental proceedings and

continued the proceedings which the appellant could not attend on account of his ill-health and

financial difficulties which compelled him to shift to his home-town in Kerala. The respondents

were informed by a number of letters supported by medical certificates about his illness with a

request for staying the departmental proceedings and await the result of the criminal case. But the

Inquiry Officer rejected the request and recorded his findings on 10.5.1986 holding the appellant

guilty. These findings were accepted by the Disciplinary Authority and by order dated 7th June

1986, the appellant was dismissed from service.

       5. On 3rd of February, 1987, judgment in the criminal case was pro­nounced and the appellant

was acquitted with the categorical findings that the prosecution had failed to establish its case.

This judgment was communicated by the appellant to the respondents on 12.2.1987 with a

request that he may be reinstated, but respondents, by their letter dated 3.3.1987, rejected the

request on the ground that the appellant had already been dismissed from service on the

completion of the departmental inquiry which was conducted independently of the criminal case

and, therefore, the judgment passed by the Magistrate was of no consequence.

       6. The order of dismissal passed by the respondents was challenged in a departmental

appeal which was rejected by the Appellate Authority on 22.7.1987.

       7. It was, at this stage, that the appellant approached the High Court through a Writ Petition

under Article 226 of the Constitution chal­lenging the validity of the order of dismissal on various

grounds, including that the departmental proceedings based on the same set of facts on which the

criminal case was launched against him, ought to have been stayed awaiting the result of the

criminal case. It was also pointed out that since the appellant had already been acquitted and the

prosecution case against the appellant based on the “raid and recovery” which also constituted the

basis of the departmental proceedings, had not been found to be true, he was entitled to be

reinstated in service.

       8. The Writ Petition was allowed by a Single Judge of the High Court on 26-9-1995 with the

finding that the departmental proceedings and the criminal case being based on the same set of

facts, departmental proceedings should have been stayed till the result of the criminal case and

since in the criminal case the appellant had already been acquitted and the prosecution case was

not found established, the respondents could not legally refuse reinstatement or the consequent

back-wages to the appellant. While directing reinstatement of the appellant, the High Court gave

liberty to respondents to initiate fresh proceedings against the appellant after perusing the

judgment passed in the criminal case.

       9. This judgment was, however, set aside by the Division Bench on 17th September, 1997 in

a letters patent appeal filed by the respondents. It is this judgment which is under appeal before

us.

       10. Learned counsel for the appellant has contended that the respond­ents having themselves

launched the criminal case were not justified in proceeding with the departmental inquiry which

was based on the same set of facts and ought to have stayed those proceedings till the conclusion

of the criminal case. Since the basis of action in both the cases, namely, the departmental

proceedings and the criminal case, was the raid conducted by the Superintendent of Police at the

residence of the appellant from where a recovery was also allegedly made, the departmental

proceedings were liable to be stayed as the facts and the evidence in both the proceedings were

common. In these circumstances, the appellant, it is contended, was justified in requesting the

re­spondents to stay the departmental proceedings and on the refusal of the respondents to stay

the proceedings, the appellant was justified in not participating in those proceedings as his

defence was likely to be prejudiced. It is also contended that the appellant was ill and for that

reason also the departmental proceedings ought to have been stayed till he had completely

recovered. It is also submitted that the appellant who had been placed under suspension was not

being paid the Subsistence Allowance with the result that he fell into serious finan­cial difficulties

and could not undertake any journey from his home-town in Kerala to Kolar Gold Fields in

Karnataka for participating in the departmental proceedings. The Division Bench, it is contended,

was not justified in interfering with the judgment passed by the Single Judge who had found it as a

positive fact that the departmental proceedings and the criminal case were based on the same set

of facts and the evidence in both the cases was common.

       11. Learned counsel for the respondents has, however, contended that the respondents were

under no obligation to stay the departmental proceedings and await the result of the criminal case

as there was no legal bar in holding the departmental proceedings simultaneously with the

proceedings in the criminal case, particularly as the level of proof in both the proceedings is

different and the purpose with which the departmental proceedings are conducted is also not

identical with the purpose with which the criminal case is prosecuted for an offence committed by

the employee.

       12. This question, as observed earlier, is of a perennial nature and has arisen more often than

not in spite of the judicial pronouncements, specially by this Court, having settled the question and

provided the answer. Still, the problem is raised either by the employer or by the employee in one

or the other form. In the instant case, the order of dismissal had already been passed before the

deci­sion of the criminal case which ultimately resulted in the acquittal of the appellant. Whether the

acquittal coupled with other circumstances, specially ex-parte proceedings, of the case, will have

the effect of viti­ating the departmental proceedings or the order of dismissal passed against the

appellant, is the question which is to be considered in this appeal.

       13. As we shall presently see, there is a consensus of judicial opin­ion amongst the High

Courts whose decisions we do not intend to refer in this case, and the various pronouncements of

this Court, which shall be copiously referred to, on the basic principle that proceedings in a

criminal case and the departmental proceedings can proceed simultaneously with a little

exception. As we understand, the basis for this proposition is that proceedings in a criminal case

and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in

the departmental proceedings, wehre a charge relating to misconduct is being investigated, the

factors operating in the mind of the Disciplinary Authority may be many such as enforcement of

discipline or to investigate the level of integrity of the delinquent or the other staff the standard of

proof required in the those proceedings is also different than that required in a criminal case. While

in the departmental proceedings the standard of proof is one of preponderance of the probabilities,

in a criminal case, the charge has to be proved by the prosecution beyond reasonably doubts. The

little exception may be where the departmental proceedings and the criminal case are based on

the same set of facts and the evidence in both the proceedings is common without there being a

variance.

       14. The first decision of this Court on the question was rendered in Delhi Cloth and General

Mills Ltd. v. Kushal Bhan1 , in which it was observed as under :

       “It is true that very often employers stay enquiries pending the decision of the criminal trial

Courts and that is fair: but we cannot say that principles of natural justice require that an employer

must wait for the decision at least of the criminal trial Court before taking action against an

employee. In Bimal Kanta Mukherjee v. M/s. Newsman’s Printing Works, 1956 LAC 188, this was

the view taken by the Labour Appellate Tribunal. We may, however, and that if the case is of a

grave nature or involves questions of fact or law, which are not simple, it would be adviseable for

the employer to await the decision of the trial Court, so that the defence of the employee in the

crimi­nal case may not be prejudiced.”

       15. This was followed by Tata Oil Mills Company Ltd. v. Workmen2 , in which it was, inter alia,

laid down as under :

       “There is yet another point which remains to be considered. The Industrial Tribunal appears to

have taken the view that since criminal proceedings had been started against Raghavan, the

domestic enquiry should have been stayed pending the final disposal of the said criminal

proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan, it is

desirable that if the inci­dent giving rise to a charge framed against a workman in a domestic

enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending

the final disposal of the criminal case.”

       16. The question cropped up again with a new angle in Jang Bahadur Singh v. Baij Nath

Tiwari3, as it was contended that initiation of disciplinary proceedings during the pendency of a

criminal case on the same facts amounted to contempt of court. This plea was rejected and the

Court observed as under:

       “The issue in the disciplinary proceedings is whether the employee is guilty of the charges on

which it is proposed to take action against him. The same issue may arise for decision in a civil or

criminal proceeding pending in a court. But the pendency of the court proceed­ing does not bar the

taking of disciplinary action. The power of taking such action is vested in the disciplinary authority.

The civil or criminal court has no such power. The initiation and continuation of disciplinary

proceedings in good faith is not calculated to ob­struct or interfere with the course of justice in the

pending court proceeding. The employee is free to move the court for an order restraining the

continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the

order would of course amount to contempt of court. In the absence of a stay order the disci­plinary

authority is free to exercise its lawful powers.”

       17. These decisions indicate that though it would not be wrong in conducting two parallel

proceedings, one by way of disciplinary action and the other in the criminal court, still it would be

desirable to stay the domestic inquiry if the incident giving rise to a charge framed against the

employee in a domestic inquiry is being tried in a criminal court. The case law was reviewed by

this Court in Kusheshwar v. M/s. Bharat Cokins Coal Ltd. & Ors.4 and it was laid down as under:

       “The view expressed in the three cases of this Court seem to support the position that while

there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases

where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal

case. In the latter class of cases, it would be open to the delinquent employee to seek such an

order of stay or injunction from the court. Whether in the facts and circumstances of particular

case there should or should not be such simultaneity of the proceedings would then receive

judicial consideration and the court will decide in the given circumstances of particular case as to

whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have

already stated that it is neither possible nor adviseable to evolve a hard and fast, strait-jacket

formula valid for all cases and of general application without regard to the particularities of the

individual situation. For the disposal of the present case, we do not think it necessary to say

anything more, particularly when we do not intend to lay down any general guideline.”

       The Court further observed as under :

       “In the instant case, the criminal action and the disciplinary pro­ceedings are grounded upon

the same set of facts. We are of the view that the disciplinary proceedings should have been

stayed and the High Court was not right in interfering with the trial court’s order of injunction which

had been affirmed in appeal.”

       18. Then came the decision in Nelson Motis v. Union of India & Ors.5, which laid down that

the disciplinary proceedings can be legally continued even wehre the employee is acquitted in a

criminal case as the nature and proof required in a criminal case are different from those in the

departmental proceedings. Besides, the Court found that the acts which led to the initiation of

departmental proceedings were not exactly the same which were the subject matter of the criminal

case. The question was not considered in detail. The Court observed :

       “So far the first point is concerned, namely whether the disciplinary proceedings could have

been continued in the face of the acquittal of the appellant in the criminal case, the plea has no

substance whatso­ever and does not merit a detailed consideration. The nature and scope of a

criminal case are very different from those of a departmental disciplinary proceeding and an order

of acquittal, therefore, cannot conclude the departmental proceedings. Besides, the Tribunal has

pointed out that the acts which led to the initiation of the departmental disciplinary proceeding

were not exactly the same which were the subject matter of the criminal case. (Emphasis

supplied)

       19. The entire case law was reviewed once again by this Court in State of Rajas­than v. B.K.

Meena & Ors.6, wherein it was laid down as under :

       “It would be evident from the above decisions that each of them starts with the indisputable

proposition that there is no legal bar for both proceedings to go on simultaneously and then say

that in certain situation, it may not be `desirable’, `adviseable’ or `appro­priate’ to proceed with the

disciplinary enquiry when a criminal case is pending on identical charge. The staying of

disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts

and circumstances of a given case and that no hard circumstances of a given case and that no

hard and fast rules can be enunciated in that behalf. The only ground suggested in the above

decisions as constitut­ing a valid ground for staying the disciplinary proceedings is that `the

defence of the employee in the criminal case may not be preju­diced.’ This ground has, however,

been hedged in by providing further that this may be done in cases of grave nature involving

questions of fact and law. In our respectful opinion, it means that not only the charges must be

grave but that the case must involve complicated questions of law and fact. Moreover,

`advisability’, `desirability’ or `propriety’, as the case may be, has to be “determined in each case

taking into consideration all the facts and circumstances of the case. The ground indicated in

D.C.M. (AIR 1960 SC 806) and Tata Oil Mills (AIR 1965 SC 155) is also not an invariable rule. It is

only a factor which will go into the scales while judging the adviseability or desirability of staying

the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry

cannot be-and should not be-delayed unduly. So far as criminal cases are concerned, it is well

known that they drag on endlessly where high officials or persons are involved. They get bogged

down on persons are involved. They get bogged down on one or the other ground. They hardly

ever reach a prompt conclusion. That is the reality in spite of re­peated advice and admonitions

from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good

ground for going ahead with the disciplinary are held over at an earlier stage. The interests of

administration and good government demand that these proceedings are concluded expeditiously.

It must be remembered that interests of administration demand that undesirable elements are

thrown out and any charge of misdemeanour is inquired into promptly. The disciplinary

proceedings are meant not really to punish the guilty but to keep the administrative machinery

unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt

conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be

vindicated at the earliest possi­ble moment and if he is guilty, he should be dealt with promptly

according to law. It is not also in the interest of administration that persons accused of serious

misdemeanour should be continued in office indefinitely , i.e., for long period awaiting the result of

criminal proceedings. It is not in the interest of administration. It only serves the interest of the

guilty and dishonest. While it is not possible to enumerate the various factors, for and against the

stay of disciplinary proceedings, we found it necessary to emphasise some of the important

considerations disciplinary proceedings are being stayed for long period pending criminal

proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All

the relevant factors, for and against, should be weighed and a decision taken keeping in view of

the various principles laid down in the decisions referred to above.”

       This decision has gone two steps further to the earlier decisions by providing :

        (1) The ‘advisability’, ‘desirability’ or ‘property’ of staying the departmental proceedings “go

into the scales while judging the advisability or desirability of staying the disciplinary proceedings”

merely as one of the factors which cannot be considered in isolation of other circumstances of the

case. But the charges in the criminal case must, in any case, be of a grave and serious nature

involving complicated questions of fact and law.

        (2) One of the contending considerations would be that the disciplinary enquiry cannot-and

should not be-delayed unduly. If the criminal case is unduly delayed, that may itself be a good

ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings

were held over at an earlier stage. It would not be in the interests of administration that persons

accused of serious misdemea­nour should be continued in office indefinitely awaiting the result of

criminal proceedings.

       20. In another case, namely, Deport Manager, Andhra Pradesh State Road Transport

Corporation v. Mohd. Yousuf Miyan7, again it was held that there is no bar to proceed it was held

that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal

case unless the charge in the criminal case is of a grave nature involving complicated questions of

fact and law.

       21. The conclusions which are deducible from various decisions of this Court referred to

above are :

        (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously

as there is no bar in their being conducted simultaneously, though separately.

        (ii) If the departmental proceedings and the criminal case are based on identical and similar

set of facts and the charge in the criminal case against the delinquent employee is of a grave

nature which involves complicated questions of law and fact, it would be desirable to stay the

departmental proceedings till the conclusion of the criminal case.

        (iii) Whether the nature of a charge in a criminal case is grave and whether complicated

questions of fact and law are involved in that case, will depend upon the nature of offence, the

nature of the case launched against the employee on the basis of evidence and material collected

against him during investigation or as reflected in the charge sheet.

        (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the

Departmental proceedings but due regard has to be given to the fact that the departmental

proceedings cannot be unduly delayed.

        (v) If the criminal case does not proceed or its disposal is being unduly delayed, the

departmental proceedings, even if they were stayed on account of the pendency of the criminal

case, can be resumed and proceeded with so as to conclude them at an early date, so that if the

employee is found not guilty his honour may be vindicated and in case he is found guilty,

administration may get rid of him at the earliest.

       22. In the instant case, the Superintendent of Police had raided the residential premises of the

appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of

‘gold bearing sand’. It was on this basis that criminal case launched against him. On the same set

of facts, constituting the raid and recovery, depart­mental proceedings were initiated against the

appellant as the “recov­ery” was treated to be a ‘misconduct’. On the service of the charge sheet,

the appellant raised an objection that the departmental proceedings may be stayed as the basis of

these proceedings was the raid conducted at his residence on which basis a criminal case had

already been launched against him. He requested that the decision of the criminal case may be

awaited, but his request was turned down. The request made a second time for that purpose also

met the same fate. When the appellant approached the High Court, liberty was given to the

respondents to stay the departmental proceedings if they considered it appropriate but they were

directed to dispose of the appellant’s appeal against the order by which he was placed under

suspension. The order of the High Court had no effect on the respondents and they decided to

continue with the departmental proceedings which could not be attended by the appellant as he

informed the Inquiry Officer that he was ill. His request for adjournment of the departmental

proceedings on that ground was acceded to and the proceedings contin­ued ex-parte against him.

He was ultimately found guilty of the charges and was dismissed from service.

       23. Learned counsel for the appellant also contended that during the period of suspension the

respondents had not paid him the Subsistence Allowance with the result that he could not

undertake a journey from his home-town in Kerala to Kolar Gold Fields in Karnataka where the

departmental proceedings were being held. This plea has not been accepted by the High Court on

the ground that it was not raised before the Inquiry Officer and it was not pleaded before him that it

was on account of non-payment of Subsistence Allowance that the appellant could not go to Kolar

Gold ... for participating in the disciplinary proceedings.

       24. Before us, it is not disputed on behalf of the respondents nor was it dispute by them

before the High Court, that Subsistence Allowance wa snot paid to the appellant while the

proceedings against him were being conducted at the departmental level.

       25. To place an employee under suspension is an unqualified right of the employer. This right

is conceded to the employer in service juris­prudence everywhere. It has even received statutory

recognition under service rules framed by various authorities, including Govt. of India and the

State Governments. (See : For example, Rule 10 of the Central Civil Services (Classification,

Control and Appeal) Rules. Even under the General Clauses Act, this right is conceded to the

employer by Section 16 which, inter alia, provides that power to appoint includes power to

suspend or dismiss.

       26. The order of suspension does not put an end to an employee’s service and he continues

to be a member of the service though he is not permitted to work and is paid only Subsistence

Allowance which is less than his salary. (See: State of M.P. v. State of Maharashtra8).

       27. Service Rules also usually provide for payment of salary at a reduced rate during the

period of suspension. (See: Fundamental Rule 53). This constitutes the “Subsis­tence Allowance”.

If there is no provision in the Rules applicable to a particular class of service for payment of salary

at a reduced rate, the employer would be liable to pay full salary even during the period of

suspension.

       28. Exercise of right to suspend an employee may be justified on facts of a particular case.

Instances, however, are not rare where officers have been found to be afflicted by “suspension

syndrome” and the employees have been found to be placed under suspension just for nothing. It

is their irritability rather than the employee’s trivial lapse which has often resulted in suspension.

Suspension notwithstand­ing, non-payment of Subsistence Allowance is an inhuman act which has

an unpropitious effect on the life of an employee. When the employee is placed under suspension,

he is demobilised and the salary is also paid to him at a reduced rate under the nick name of

`Subsistence Allowance’, so that the employee may sustain himself. This Court, in O.P. Gupta v.

Union of India & Ors.9 made the following observations with regard to Subsistence Allowance :

       “An order of suspension of a government servant does not put an end to his service under the

government. He continues to be a member of the service in spite of the order of suspension. The

real effort of sus­pension as explained by this Court Khem Chand v. Union of India is that he

continues to be a member of the government service but is not permitted to work and further

during the period of suspension he is paid only some allowance-generally called subsistence

allowance-which is normally less than the salary instead of the pay and allowances he would have

been entitled to if he had not been suspended. There is no doubt that an order of suspension,

unless the departmental inquiry is concluded within a reasonable time, affects a government

servant injuriously. The very expression `subsistence allowance’ has an undeniable penal

significance. The dictionary mean­ing of the word `Subsist’ as given in Shorter Oxford English

Diction­ary Vol. II at p. 2171 is “to remain alive as on food: to continue to exist”. “Subsistence”

means-means of supporting life, especially a minimum livelihood.” (Emphasis supplied)

       29. If, therefore, even that amount is not paid, then the very object of paying the reduced

salary to the employee during the period of suspension would be frustrated. The act of non-

payment of Subsistence Allowance can be likened to slow-poisioning as the employee, if not

permitted to sustain himself on account of non-payment of Subsistence Allowance, would

gradually starve himself to death.

       30. On joining Govt. service, a person does not mortgage or barter away his basic rights as a

human being, including his fundamental rights, in favour of the Govt. The Govt., only because it

has the power to appoint does not become the master of the body and soul of the employee. The

Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution,

including the Directive Principles of the State Policy. The employee, on taking up an employment

only agrees to subject himself to the regulatory meas­ures concerning his service. His association

with the Government or any other employer, like Instrumentalities of the Govt. or Statutory of

Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules

made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other

Statuto­ry Rules including Certified Standing Orders. The fundamental rights, including the Right to

Life under Article 21 of the Constitution or the basic human rights are not surrendered by the

employee. The provision for payment of Subsistence Allowance made in the Service Rules only

ensures non-violation of the right to life of the employ­ees. That was the reason why this Court in

State of Maharashtra v. Chanderbhan10 struck down a Service Rule which provided for payment

of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under

suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer & Anr.11

and it was held in that case that if an employee could not attend the departmental proceedings on

account of financial stringencies caused by non-payment of Subsist­ence Allowance, and thereby

could not undertake a journey away from his home to attend the departmental proceedings, the

order of punish­ment, including the whole proceedings would stand vitiated. For this purpose,

reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastava v. State of

Madhya Pradesh12.

       31. The question whether the appellant was unable to go to Kolar Gold Fields of participate in

the inquiry proceedings on account of non-payment of Subsistence Allowance may not have been

raised before the Inquiry Officer, but it was positively raised before the High Court and has also

been raised before us. Sinceit is not disputed that the Subsistence Allowance was not paid to the

appellant during the pendency of the departmental proceedings, we have to take strong notice of

it, particularly as it is not suggested by the respondents that the appellant had any other source of

income.

       32. Since in the instant case the appellant was not provided any Subsistence Allowance

during the period of suspension and the adjournment prayed for by him on account of his illness,

duly support­ed by medical certificates, was refused resulting in ex-parte proceedings against him,

we are of the opinion that the appellant has been punished in total violation of the principles of

natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded

by the appellant before the High Court as also before us that on account of his penury occasioned

by non-payment of Subsistence Allowance, he could not undertake a journey to attend the

disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which

were held ex-parte, stand vitiated.

       33. There is yet another reason for discarding the whole of the case of the respondents. As

pointed out earlier, the criminal case as also the departmental proceedings were based on

identical set of facts, namely, ‘the raid conducted at the appellant’s residence and recovery of

incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has

been placed before us, indicate that the charges framed against the appellant were sought to be

proved by Police Officers and Panch witnesses, who had raided the house of the appellant, and

had effected recovery. They were the only witnesses examined by the Inquiry Officer and the

Inquiry Officer, relying upon their statements, came to the conclusion that the charges were

established against the appellant. The same witnesses were examined in the criminal case but the

court, on a consideration of the entire evidence, came to the conclusion that no search was

conducted nor was any recovery made from the residence of the appellant. The whole case of the

prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the

appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at

the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to

allow the findings recorded at the ex-parte departmental proceedings, to stand.

       34. Since the facts and the evidence in both the proceedings, namely, the departmental

proceedings and the criminal case were the same without there being any iota of difference, the

distinction, which is usually drawn as between the departmental proceedings and the criminal case

on the basis of approach and burden of proof, would not be ap­plicable to the instant case.

       35. For the reasons stated above, the appeal is allowed, the impugned judgment passed by

the Division Bench of the High Court is set aside and that of the learned Single Judge in so far as

purports to allow, the Writ Petition, is upheld. The learned Single Judge has also given liberty to

the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the

case, specially having regard to the fact that the appellant is undergoing this agony since 1987, we

would not direct any fresh departmental inquiry to be instituted against him on the same set of

facts. The appellant shall be reinstat­ed forthwith on the post of Security Officer and shall also be

paid entire arrears of salary, together with all allowances from the date of suspension till his

reinstatement, within three months. The appel­lant would also be entitled to his cost which is

quantified as Rs. 15,000/-.

       (C.R.) Appeal allowed.

        

       ************

       Parallel Citations of other Journals :

       Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr, 1999(3) Supreme 376

       00108

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2014(Arising out of S.L.P. (C) Nos.30371-30376 of 2012)

M/s Stanzen Toyotetsu India P. Ltd. …

Appellant

Versus

Girish V & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. The short question that falls for determination in these

appeals is whether the High Court so also the Courts below

were right in holding that the disciplinary proceedings

initiated by the appellant-company against its employees

(respondents herein) ought to remain stayed pending

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conclusion of the criminal case instituted against the

respondents in respect of the very same incident.

3. The appellant-company is engaged in the manufacture

of automobile parts in the name and style of M/s Stanzen

Toyotetsu India Pvt. Ltd. while the respondents are

workmen engaged by the appellant in connection with the

said business. It is not in dispute that the employees of the

appellant-company including the respondents are governed

by Standing Orders certified under Industrial Employees

(Standing Orders) Act, 1946.

4. The appellant’s case is that on 19th March, 2011 at

about 10.30 p.m. the respondents with the help of other

Trade Union functionaries stage managed an accident

making it appear as if an employee by the name of Mr.

Kusumadhara had slipped and fallen in the press area. The

incident was, it is alleged, used as a ruse by the respondents

who rushed to the place of alleged fall only to create a

ruckus. Appellant’s further case is that although Mr.

Kusumadhara had not sustained any injury, he was sent to

the hospital in the ambulance of the appellant-company and

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that instead of resuming the work after the alleged incident,

the respondents stopped the production activity and started

abusing their superiors, damaged property of the company

and even assaulted senior managerial personnel. These acts

of indiscipline created an atmosphere of fear and tension in

the factory and brought the production activity to a grinding

halt. Senior managerial personnel injured in the incident

were, according to the appellant, unable to report for work

for about 15 days on account of assault on them.

5. Taking note of the incident and the acts of indiscipline

which amounted to misconduct under several provisions of

the Standing Order, the competent authority placed the

respondents under suspension and issued charge-sheets to

them. The explanation submitted by the respondents having

been found unsatisfactory, a disciplinary enquiry was

initiated and Enquiry Officers appointed to enquire into the

allegations against the respondents. The Presenting Officers

have examined one witness in each one of the enquiries.

6. The incident in question was it appears reported even

to the police by one of the employees of the appellant-

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company who was a witness to the same, leading to the

registration of Crime No.173/2011 in Ramanagara Rural

Police Station for offences punishable under Sections 143,

147, 323, 324, 356, 427, 504, 506, 114 read with Section

149 I.P.C. A charge-sheet was filed pursuant to the said

report and investigation is pending in which the respondents

are accused of committing the offences mentioned above.

7. While the disciplinary enquiry and the criminal case

were both pending, the respondents filed Original Suits

No.326-331 of 2011 in which they prayed for a permanent

injunction against the appellant and the Enquiry Officers

restraining them from proceeding with the enquiry pending

conclusion of the criminal case. Interlocutory Applications

seeking temporary injunctions in each one of the suits

against the on-going enquiry were also filed in the said suits.

The applications though opposed by the appellant-company

were allowed by the Principal Civil Judge and JMFC

Ramanagara by an order dated 13th October, 2011 staying

the domestic enquiry pending against the respondents till

the disposal of criminal case in C.C. No.1005 of 2011.

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8. Misc. Appeals No.56/2011 and 61/2011 filed by the

appellant against the said order before the Principal Senior

Civil Judge and CJM Ramanagara having failed, the appellant

filed Writ Petitions No.8487-8491 of 2012 (GM-CPC) and

W.P. No.9381 of 2012 (GM-CPC) before the High Court of

Karnataka which petitions too failed and have been

dismissed by the High Court in terms of a common order

dated 15th June, 2012 impugned in the present appeals. In

the result the disciplinary enquiry pending against the

respondents remained stayed pending conclusion of the

criminal trial. The present appeals, as noticed earlier,

assailed the correctness of the said judgment and orders.

9. We have heard learned counsel for the parties at some

length. The only question that falls for determination in the

above backdrop is whether the Courts below were justified

in staying the on-going disciplinary proceedings pending

conclusion of the trial in the criminal case registered and

filed against the respondents. The answer to that question

would primarily depend upon whether there is any legal bar

to the continuance of the disciplinary proceedings against

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the employees based on an incident which is also the subject

matter of criminal case against such employees. It would

also depend upon the nature of the charges in the criminal

case filed against the employees and whether the case

involves complicated questions of law and fact. The

possibility of prejudice to the employees accused in the

criminal case on account of the parallel disciplinary enquiry

going ahead is another dimension which will have to be

addressed while permitting or staying such disciplinary

enquiry proceedings. The law on the subject is fairly well-

settled for similar issues and has often engaged the

attention of this Court in varied fact situations. Although the

pronouncements of this Court have stopped short of

prescribing any strait-jacket formula for application to all

cases the decisions of this Court have identified the broad

approach to be adopted in such matters leaving it for the

Courts concerned to take an appropriate view in the peculiar

facts and circumstances of each case that comes up before

them. Suffice it to say that there is no short cut solution to

the problem. What is, however, fairly well settled and was

not disputed even before us is that there is no legal bar to

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the conduct of the disciplinary proceedings and a criminal

trial simultaneously. In Depot Manager, Andhra Pradesh

State Road Transport Corporation vs. Mohd. Yousuf

Miyan (1997) 2 SCC 699, this Court declared that the

purpose underlying departmental proceedings is distinctly

different from the purpose behind prosecution of offenders

for commission of offences by them. While criminal

prosecution for an offence is launched for violation of a duty

that the offender owes to the society, departmental enquiry

is aimed at maintaining discipline and efficiency in service.

The difference in the standard of proof and the application of

the rules of evidence to one and inapplicability to the other

was also explained and highlighted only to explain that

conceptually the two operate in different spheres and are

intended to serve distinctly different purposes. The relatively

recent decision of this Court in Divisional Controller,

Karnataka State Road Transport Corporation v. M.G.

Vittal Rao (2012) 1 SCC 442, is a timely reminder of the

principles that are applicable in such situations succinctly

summed up in the following words:

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“(i) There is no legal bar for both proceedings to go on simultaneously.

(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.

(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.

(iv) Departmental Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.”

10. We may also refer to the decision of this Court in Capt.

M Paul Anthony v. Bharat Gold Mines Ltd, (1999) 3

SCC 679 where this Court reviewed the case law on the

subject to identify the following broad principles for

application in the facts and circumstances of a given case:

“(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which

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involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honor may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.”

11. In HPCL v. Sarvesh Berry (2005) 10 SCC 471 the

respondent was charged with possessing assets

disproportionate to his known sources of income. The

question was whether disciplinary proceedings should

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remain stayed pending a criminal charge being examined by

the competent criminal Court. Allowing the appeal of the

employer-corporation this Court held:

“A crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law….. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defense at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.”

(emphasis supplied)

12. It is unnecessary to multiply decisions on the subject

for the legal position as emerging from the above

pronouncements and the earlier pronouncements of this

10

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Court in a large number of similar cases is well settled that

disciplinary proceedings and proceedings in a criminal case

can proceed simultaneously in the absence of any legal bar

to such simultaneity. It is also evident that while seriousness

of the charge leveled against the employees is a

consideration, the same is not by itself sufficient unless the

case also involves complicated questions of law and fact.

Even when the charge is found to be serious and

complicated questions of fact and law that arise for

consideration, the Court will have to keep in mind the fact

that departmental proceedings cannot be suspended

indefinitely or delayed unduly. In Paul Anthony (supra)

this Court went a step further to hold that departmental

proceedings can be resumed and proceeded even when they

may have been stayed earlier in cases where the criminal

trial does not make any headway. To the same effect is the

decision of this Court in State of Rajasthan v. B.K.Meena

1996(6) SCC 417, where this Court reiterated that there

was no legal bar for both proceedings to go on

simultaneously unless there is a likelihood of the employee

suffering prejudice in the criminal trial. What is significant is

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that the likelihood of prejudice itself is hedged by providing

that not only should the charge be grave but even the case

must involve complicated questions of law and fact. Stay of

proceedings at any rate cannot and should not be a matter

of course. The following passage is in this regard apposite:

“there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can enunciated in that behalf. The only ground suggested in the above questions as constitution a valid ground for staying the disciplinary proceedings is that the defence of the employee in the criminal case may not be prejudiced. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in

12

Page 13

the decisions referred to above. … Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him.”

(emphasis supplied)

13. Suffice it to say that while there is no legal bar to the

holding of the disciplinary proceedings and the criminal trial

simultaneously, stay of disciplinary proceedings may be an

advisable course in cases where the criminal charge against

the employee is grave and continuance of the disciplinary

proceedings is likely to prejudice their defense before the

criminal Court. Gravity of the charge is, however, not by

itself enough to determine the question unless the charge

involves complicated question of law and fact. The Court

examining the question must also keep in mind that criminal

trials get prolonged indefinitely especially where the number

of accused arraigned for trial is large as is the case at hand

and so are the number of witnesses cited by the

prosecution. The Court, therefore, has to draw a balance

between the need for a fair trial to the accused on the one

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Page 14

hand and the competing demand for an expeditious

conclusion of the on-going disciplinary proceedings on the

other. An early conclusion of the disciplinary proceedings

has itself been seen by this Court to be in the interest of the

employees.

14. The charges leveled against the respondents in the

instant case are under Sections 143, 147, 323, 324, 356,

427, 504, 506, 114 read with Section 149 I.P.C. These are

no ordinary offences being punishable with imprisonment

which may extend upto 3 years besides fine. At the same

time seriousness of the charge alone is not the test. What is

also required to be demonstrated by the respondents is that

the case involves complicated questions of law and fact.

That requirement does not appear to be satisfied in an

adequate measure to call for an unconditional and complete

stay of the disciplinary proceedings pending conclusion of

the trial. The incident as reported in the first information

report or as projected by the respondents in the suits filed

by them does not suggest any complication or complexity

either on facts or law.

14

Page 15

15. That apart the respondents have already disclosed the

defense in the explanation submitted by them before the

commencement of the departmental enquiry in which one

witness has been examined by each of the Enquiry Officers.

The charge sheet, it is evident from the record, was filed on

20th August, 2011. The charges were framed on 20th

December, 2011. The Trial Court has ever since then

examined only three witnesses so far out of a total of 23

witnesses cited in the charge-sheet. Going by the pace at

which the Trial Court is examining the witnesses it would

take another five years before the trial may be concluded.

The High Court has in the judgment under appeal given five

months to the Trial Court to conclude the trial. More than

fifteen months has rolled by ever since that order, without

the trial going anywhere near completion. Disciplinary

proceedings cannot remain stayed for an indefinitely long

period. Such inordinate delay is neither in the interest of the

appellant-company nor the respondents who are under

suspension and surviving on subsistence allowance. The

number of accused implicated in the case is also very large.

We are not suggesting that the incident must be taken to be

15

Page 16

false only because such a large number could not participate

in the incident. But there is a general tendency to spread

the net wider and even implicate those who were not

concerned with the commission of the offences or who even

though present committed no overt act to show that they

shared the common object of the assembly or be responsible

for the riotous behaviour of other accused persons. Interest

of such accused as may be innocent also cannot be ignored

nor can they be made to suffer indefinitely just because

some others have committed an offence or offences.

16. In the circumstances and taking into consideration all

aspects mentioned above as also keeping in view the fact

that all the three Courts below have exercised their

discretion in favour of staying the on-going disciplinary

proceedings, we do not consider it fit to vacate the said

order straightaway. Interests of justice would, in our

opinion, be sufficiently served if we direct the Court dealing

with the criminal charges against the respondents to

conclude the proceedings as expeditiously as possible but in

any case within a period of one year from the date of this

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Page 17

order. We hope and trust that the Trial Court will take

effective steps to ensure that the witnesses are served,

appear and are examined. The Court may for that purpose

adjourn the case for no more than a fortnight every time an

adjournment is necessary. We also expect the accused in

the criminal case to co-operate with the trial Court for an

early completion of the proceedings. We say so because

experience has shown that trials often linger on for a long

time on account of non-availability of the defense lawyers to

cross-examine the witnesses or on account of adjournments

sought by them on the flimsiest of the grounds. All that

needs to be avoided. In case, however, the trial is not

completed within the period of one year from the date of

this order, despite the steps which the Trial Court has been

directed to take the disciplinary proceedings initiated against

the respondents shall be resumed and concluded by the

Inquiry Officer concerned. The impugned orders shall in that

case stand vacated upon expiry of the period of one year

from the date of the order.

17. In the result, we allow these appeals but only in part

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Page 18

and to the extent indicated above. The parties are left to

bear their own costs.

.……………….……….…..…J. (T.S. THAKUR)

.…..…………………..…..…J. (VIKRAMAJIT SEN)

New DelhiJanuary 21, 2014

18

This Product is Licensed to Rajasthan State Judicial Academ, , Jodhpur

1964 0 AIR(SC) 787; 1966 2 LLJ 164; 1964 5 SCR 431; 1963 0 Supreme(SC) 257;

SUPREME COURT OF INDIA

19th November, 1963

P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.N. WANCHOO, J.C. SHAH AND RAGHUBAR

DAYAL, JJ.

R. P. Kapur, Appellant

Versus

Union of India and another, Respondents.

Civil Appeal No. 647 of 1963.

Advocates appeared

Appellant in person; Mr. S. V. Gupte, Addl. Solicitor-General of India and MR. N. S. Bindra. Sr.

Advocate, (Mr. R. H. Dhebar, Advocate, with them), for Respondent No. 1; Mr. S. M. Sikri,

Advocate-General for the State of Punjab and Mr. N. S. Bindra, Sr. Advocate (Mr. R. H. Dhebar,

Advocate with them), for Respondent No. 2.

AUTHORITY COMPETENT TO APPOINT A PERSON WOULD ALSO BE COMPETENT TO

SUSPEND HIM PENDING DRAWING UP OF DEPARTMENTAL PROCEEDINGS OR CRIMINAL

PROCEEDINGS WHICH MAY NECESSITATE DRAWING OF DEPARTMENTAL

PROCEEDINGS.

       -held, this general principle is covered by General Clauses Act, Section 16 and in

consonance with general law on master servant.

       

Cases referred :

Relied on : Management of Hotel Imperial New Delhi v. Hotel Workers Union, AIR 1959 SC 1342

T. Cajee v. U. Jormonik Siem, AIR 1961 SC 276:

The Accountant General Bihar v. N. Bakshi, AIR 1962 SC 505

Referred to : State of Madras v. K. M. Rajagopalan, AIR 1955 SC 817 ALL INDIA ADMINISTRATIVE SERVICE RULES : R.3(a), R.3(b) ALL INDIA SERVICESDISCIPLINE AND APPEAL RULES : R.7 CONSTITUTION OF INDIA : Art.311, Art.314

.

Judgment

       WANCHOO, J.: (On behalf of himself and Gajendragadkar, Subba Rao and Shah JJ.) This is

an appeal on a certificate granted by the Punjab High Court. The appellant joined the Indian Civil

Service in 1939 and was governed in matters relating to discipline by the Civil Services

(Classification, Control and Appeal) Rules, (hereinafter referred to as the Appeal Rules) made by

the Secretary of State for India in Council. He continued in service till the transfer of power under

the Indian Independence Act. 1947. Under S. 10 of that Act he continued to serve under the

Government of India and was entitled to receive from the Government of Indian or of the Province

which he might from time to time be serving the same conditions of service as respects

remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the

case may be, as respects the tenure of his office, or rights as similar thereto as changed

circumstances may permit as he was entitled to immediately before the transfer of power, which

took place on August 15, 1947. The same guarantee was extended to the appellant and all

member of what were the Secretary of State s Services before. August 15, 1947 by Art. 314 of the

Constitution. As the appellant s case is based on that Article we may set it out:

       "Except as otherwise expressly provided by this Constitution, every person who having been

appointed by the Secretary of State or Secretary of State in Council to a Civil Service of Crown in

India continues on and after the commencement of this Constitution of serve under the

Government of India or of a State shall be entitled to receive from the government of India and the

Government of the State, which he is from time to time serving, the same conditions of services as

respects remuneration, leave and pension, and the same rights as respects disciplinary matters or

rights as similar thereto as changed circumstances may permit as that person was entitled to

immediately before such commencement.

       We shall hereafter refer to such a person as a member of the (former) Secretary of State s

Services.

       2. It appears that the appellant was in the Indian Civil Service cadre in the State of Madras at

the time of transfer of power, though later he was transferred to the Punjab. After the transfer of

power the Indian Civil Service as a Secretary of State s Service came to an end and thereafter a

new Service was constituted known as the Indian Administrative Service. Formal legal shape was

given to the new Service after the enactment of the All Indian Services Act, No. LXI of 1951, and

the Indian Administrative Service (Recruitment) Rules 1954 (hereinafter referred to as the

Recruitment Rules) were framed under Act LXI of 1951. By R. 3 of these Rules, the Indian

Administrative Service was to consist of-

       (a) members of the Indian Civil Service, not permanently allotted to the judiciary;

       (b) members of the Indian Civil Service permanently allotted to the judiciary who have been

holding executive posts from the date of the commencement of the Constitution and who may be

declared by the Central Government to be members of the Service in consultation with the State

Government;

       (c) person who, at the commencement of these rules are holding substantively listed posts,

other than posts in the judiciary,

       (d) persons recruited to the Service before the commencement of these rules, and

       (e) persons recruited to the Service in accordance with the provisions of these rules.

       The appellant thus became a member of the new Indian Administrative Service by virtue of

these rules and continued to serve in the Punjab. In 1955, the Central Government framed the All

India Services (Discipline and Appeal Rules, 1955), (hereinafter referred to as the Discipline

Rules) which were applicable to all members of the Indian Administrative Service and the Indian

Police Service.

       3. On July 18, 1959 ,the appellant was suspended with immediate effect by the Governor of

the Punjab on the ground that a criminal case was pending against him. The order also provided

that for the period of suspension the appellant shall be paid subsistence allowance which shall be

equal to leave salary which he would have drawn under the leave rules applicable to him if he had

been on leave on half average pay with a further provision that in case the suspension lasted for

more than twelve months, a further order fixing the rate of subsistence allowance shall be passed.

This order appears to have been passed under R. 7 (3) of the Discipline Rules and in

consequence there of the appellant remained under suspension.

       4. The appellant field a writ petition in the Punjab High Court on February 16, 1962

challenging this order of suspension. His contention was that he was entitled to the guarantee

contained in Art. 314 of the Constitution and the order of suspension passed against him violated

that guarantee and was therefore ineffective and invalid. He relied for this purpose on R. 49 of the

Appeal Rules, which provided for suspension as a penalty. He contended that the Appeal Rules

which governed him and which must be held to have continued to govern him in view of the

guarantee contained in Art. 314 provided for suspension as a penalty only and that there was no

provision anywhere in any rule or statute immediately before January 26, 1950 on which date the

Constitution came into force, providing for suspension otherwise than as a penalty. Therefore it

was not open to the Governor to suspend him in the manner in which he did so in the present

case, though it was not denied that he could be suspended pending criminal proceedings provided

the suspension was as a penalty under R. 49 of the Appeal Rules; on the other hand mere

suspension pending a criminal case not inflicted as a penalty was not provided at all by the Rules

or the statute governing the appellant immediately before January 26, 1950. Therefore when the

Governor proceeded to suspend him under R. 7 (3) of the Discipline Rules, he violated the

guarantee contained in Art. 314. The appellant also contends that as it was not open to any

authority to suspend him except as a punishment immediately before January 26, 1950, R. 7 of

the Discipline Rules which provides for suspension during disciplinary proceedings or during the

pendency of a criminal charge insofar as it applies to him was ultra vires Art. 314 of the

Constitution. He also attacked Rr. 3 and 10 of the Discipline Rules as violative of Art. 314 of the

Constitution, R. 8 being concerned with penalties to be imposed on members of the Indian

Administrative Service and R. 10 with the right of appeal. The contention in this connection was

that R. 3 omitted the penalty of suspension which was to be found in R. 49 of the Appeal Rules

with the result that suspension under R. 7 was not open to appeal under R. 10 which provided for

appeals against penalties mentioned in R. 3. Therefore the guarantee under Art. 314 was violated

inasmuch as previously whenever the penalty of suspension was inflicted on a member of the

Secretary of State s Services it was open to him to appeal under R. 56 of the Appeal Rules.

Therefore the scheme of the Discipline rules was such as to take away the protection to a member

of the Secretary of State s Service which was available to him immediately before the Constitution

came into force and in consequence Rr. 3 and 10 also violated the guarantee contained in Art 314

and were ultra vires. The appellant therefore prayed for an appropriate writ, order or direction in

the nature of mandamus striking down Rr. 3, 7 and 10 of the Discipline Rules being violative of Art.

314 of the Constitution and also for an order striking down the order of the Governor dated July

18, 1959 by which he suspended the appellant and such other appropriate relief as was just and

proper.

       5. The petition was opposed by the State of Punjab and its main contention was that Rr. 3, 7

and 10 of the Discipline Rules were perfectly valid and did not violate the guarantee contained in

Art. 314. It was urged that Art. 314 only gave restricted protection to the members of what were

formerly the Secretary of State s Service in respect of disciplinary matters and stress was laid on

the words "or rights as similar thereto as changed circumstances may permit appearing therein. It

was also urged that suspension pending departmental enquiry or pending a criminal case was not

the same thing as suspension by way of punishment and that previous to January 26, 1950 there

could be suspension pending departmental enquiry or pending a criminal case and that no appeal

lay from such suspension even then. It was also urged that suspension pending a departmental

enquiry or pending a criminal case was not a disciplinary matter at all and was therefore not

included within the sweep of Art. 314 and in any case the rule relating to suspension even if it is

connected with disciplinary matters was liable to variation as changed circumstances might

demand and R. 7 was framed in view of the changed circumstances. It was also urged that

removal or suspension as a penalty under R. 3 could not affect the guarantee contained in Art.

314, for the effect of such removal was that there could be in future no penalty of suspension

against a member of the Indian Administrative Service. Therefore as the penalty had gone R. 10

did not naturally provide for an appeal against a penalty which did not exist. Rule 7 which provides

for suspension does not provide for any penalty and therefore there was no necessity of providing

for any appeal against it. It was urged that a difference must be made between suspension as a

penalty and suspension as an interim measure only pending a departmental enquiry or pending a

criminal case and if that difference was borne in mind there was no reason for holding that Rr. 3

and 10 were ultra vires Art. 314. The respondent State finally contended that the order of the

Governor passed under R. 7(3) was perfectly valid and did not violate the gurantee contained in

Art. 314.

       6. The High Court dismissed the petition. It was of the view that it was inconceivable that

under the old rules prevailing before January 26, 1950, a civil servant could never be suspended

while an enquiry into his conduct was pending. It was further of the view that suspension during

the pendency of an enquiry was a power inherent in an employer like the Government and the

power to suspend was always implied in the authority making the appointment. The High Court

therefore rejected the contention of the appellant that under the old rules no member of the

Secretary of State s Services could have been suspended except by way of punishment. The High

Court further held that even if the contention of the appellant be accepted that a member of the

Secretary of State s Services had a right of appeal even where he was suspended during a

departmental enquiry there was a provision in the Discipline Rules for a memorial to the President

(see R. 20) and that in the opinion of the High Court gave a right as similar to the right existing

before January 26, 1950 as the changed circumstances permitted. The High Court therefore

dismissed the petition. The appellant then applied for a certificate which was granted; and that is

how the matter has come up before us.

       7. The only question that has been debated before us is with respect to suspension whether

as a punishment or otherwise of a member of one of the Secretary of State s Services, in this case

the Indian Civil Service, members of which have become members of the Indian Administrative

Service under the Recruitment Rules; and it is only this question that falls to be determined in the

present appeal. But the appellant has also challenged Rr. 3 and 10 of the Discipline Rules which

do not deal with suspension at all. In these circumstances we do not propose to consider the vires

of Rules 3 and 10, for that does not fall for decision as the order which is challenged has not been

made under R. 3 and relates only to suspension. It is therefore unnecessary to decide whether Rr.

3 and 10 can in the changed circumstances apply to those members of the Indian Administrative

Service who were at one time members of the Indian Civil Service. We shall therefore express no

view one way or the other on the vires of R. 3 and R, 10 and consider only R. 7 which deals with

suspension. We should also like to make it clear that what we say during the course of this

Judgment with respect to suspension refers only to those members of the Indian Administrative

Service who became members thereof under R. 3(a) and (b) of the Recruitment Rules and not to

other members of the Indian Administrative Service who were not members before 1947 of the

Indian Civil Service, for it is only the former kind of members of the Indian Administrative Service

who are entitled to the protection of Art. 314 and the whole case of the appellant is based on that

protection.

       8. Let us therefore turn to Art. 314 which we have already set out above. This Article came to

be considered by this Court in The Accountant General Bihar v. N. Bakshi, (1962) Supp (1) SCR

505). In that case, however, that part of it was considered which related to "conditions of service

as respects remuneration, leave and pension , and it was held that R. 3 of the All India Services

(Overseas Pay, Passage and Leave Salary) Rules, 1957 was ultra vires having regard to the

guarantee contained in Art. 304 of the Constitution. That case is an authority for the proposition

that where any rule is framed, which is inconsistent with the guarantee contained in Art. 314 with

respect to remuneration, leave and pension that rule would be bad. In the present case we are

concerned with another part of Article 314, namely, "the same rights as respects disciplinary

matters or rights as similar thereto as changed circumstances may permit as that person was

entitled to immediately before such commencement . The same principle will apply to this part of

Art. 314 also and if any rule if framed which goes against the guarantee contained in this part of

Art. 314 with respect to members of what were former Secretary of State s Services, it will be bad.

What Art. 314 provides with respect to disciplinary matters is that the members of the former

Secretary of State s Services who continue to serve under the Government of India or of a State

would be entitled to the same rights as respects disciplinary matters or rights as similar thereto as

changed circumstances may permit. Stress has been laid on behalf of the respondent on the

words "rights as similar thereto as changed circumstances may permit , and it is urged that in view

of these words it was open in the "changed circumstances to frame rules in particular with respect

to suspension pending departmental enquiry or pending criminal proceedings. These words in our

opinion cannot bear their interpretation. What the words "changed circumstances mean is the

change in circumstances due to transfer of power in August 1947 and the coming into force of the

Constitution in January 1950, and no more. Therefore when Art. 314 speaks of "rights as similar

thereto as changed circumstances may permit , it only means that a member of the former

Secretary of State s Services would have rights similar to his pre-existing rights as the changed

circumstances resulting from constitutional changes may allow. As an illustration take a case

where a member of a Secretary of State s Service could before August 1947 be dismissed only by

the Secretary of State; but after the transfer of power and the coming into force of the constitution,

circumstances have changed and there is no Secretary of State, therefore we have to look to the

changed circumstances and find out which would be the authority to dismiss such a member of the

changed circumstances. If we do so, we find that the Government of India can be the only

authority which now in the changed circumstances will have the power to dismiss such a member

in the absence of a specific provision of law in force before January 26, 1950. These words do not

mean that as time passes circumstances change and therefore new rules may be framed to meet

the new circumstances due to passage of time. The words "changed circumstances in Art. 314

only refer to the constitutional changes which occurred after the transfer of power in August 1947

and the coming into force of the Constitution in January 1950. Further, Art. 314 provides that the

protection is limited only to those rights as to disciplinary matters which a member of the former

Secretary of State s Service was entitled to immediately before the commencement of the

Constitution i.e. on January 25, 1950. It is only those rights which are protected and no more.

       9. Another argument that is urged on behalf of the respondent is that suspension pending a

departmental enquiry or pending a criminal proceeding cannot be said to be a disciplinary matter

at all and therefore the protection of Art. 314 does not extend to such suspension. We cannot

accept this argument. The words "disciplinary matters with which we are concerned appear in a

constitutional provision and must be given their widest meaning consistent with what disciplinary

matters may reasonably include. Suspension is of two kinds, namely, as a punishment, or as an

interim measure pending a departmental enquiry or pending a criminal proceeding. We shall deal

with these aspects of suspension in detail later. So far as suspension as a punishment is

concerned, it is conceded that it is a disciplinary matter. The dispute is only as to suspension

pending a departmental enquiry or pending a criminal proceeding. There can in our opinion be no

doubt that suspension of this kind also must be comprised within the words "disciplinary matters

as used in Art. 314. Take the case of suspension pending a departmental enquiry. The purpose of

such suspension is generally to facilitate a departmental enquiry and to ensure that while such

enquiry is going on - it may relate to serious lapses on the part of a public servant -, he is not in a

position to misuse his authority in the same way in which he might have been charged to have

done so in the enquiry. In such a case suspension pending a departmental enquiry cannot be but

a matter immediately related to disciplinary matters. Take again the case where suspension is

pending criminal proceedings. The usual ground for suspension pending a criminal proceeding is

that the charge is connected with his position as a government servant or is likely to embarras him

in the discharge of his duties or involves moral turpitude. In such a case a public servant may be

suspended pending investigation, enquiry or trial relating to a criminal charge. Such suspension

also in our opinion is clearly related to disciplinary matters. If the trial of the criminal charge results

in conviction, disciplinary proceedings are bound to follow against the public servant so convicted,

even in case of acquittal proceedings may follow where the acquittal is other than honourable. The

usual practice is that where a public servant is being tried on a criminal charge, the Government

postpones holding a departmental enquiry and awaits the result of the criminal trial and

departmental proceedings follow on the result of the criminal trial. Therefore, suspension during

investigation, enquiry or trial relating to a criminal charge is also in our opinion intimately related to

disciplinary matters. We cannot therefore accept the argument on behalf of the respondent that

suspension pending a departmental enquiry or pending investigation, enquiry or trial relating to a

criminal charge is not a disciplinary matter within the meaning of those words in Art. 314.

       10. Before we investigate what rights a member of the former Secretary of State s Services

had with respect to suspension, whether as a punishment or pending a departmental enquiry or

pending criminal proceedings, we must consider what rights the Government has in the matter of

suspension of one kind or the other. The general law on the subject of suspension has been laid

down by this Court in two cases, namely, Management of Hotel Imperial New Delhi v. Hotel

Workers Union, (1960) 1 SCR 476) and T. Cajee v. U. Jormanik Siem, (1961) 1 SCR 750 : These

two cases lay down that it is well settled that under the ordinary law of master and servant the

power to suspend the servant without pay could not be implied as a term in an ordinary contract of

service between the master and the servant but must arise either from an express term in the

contract itself or a statutory provision governing such contract. It was further held that an order of

interim suspension could be passed against an employee while inquiry was pending into his

conduct event though there was no specific provision to that effect in his terms of appointment or

in the rules. But in such a case he would be entitled to his remuneration for the period of his

interim suspension if there is no statute or rule existing under which it could be withheld.

       11. The general principle therefore is that an employer can suspend an employee pending an

enquiry into his conduct and the only question that can arise on such suspension will relate to the

payment during the period of such suspension. If there is no express term in the contract relating

to suspension and payment during such suspension or if there is no statutory provision in any law

or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on

the other hand if there is a term in this respect in the contract or there is a provision in the statute

or the rules framed thereunder providing for the scale of payment during suspension, the payment

would be in accordance therewith. These general principles in our opinion apply with equal force in

a case where the government is the employer and a public servant is the employee with the

modification that in view of the peculiar structural hierarchy of Government, the employer in the

case of government, must be held to be the authority which has the power to appoint a public

servant. On general principles therefore the authority entitled to appoint a public servant would be

entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal

proceeding, which may eventually result in a departmental enquiry against him. This general

principle is illustrated by the provision in Section 16 of the General Clauses Act, No. X of 1897,

which lays down that where any Central Act or Regulation gives power of appointment that

includes the power to suspend or dismiss unless a different intention appears. Though this

provision does not directly apply in the present case, it is in consonance with the general law of

master and servant. But what amount should be paid to the public servant during such suspension

will depend upon the provisions of the statue or rule in that connection. If there is such a provision

the payment during suspension will be in accordance therewith. But if there is no such provision,

the public servant will be entitled to his full emoluments during the period of suspension. This

suspension must be distinguished from suspension as a punishment which is a different matter

altogether depending upon the rules in that behalf. On general principles therefore the

Government, like any other employer, would have a right to suspend a public servant in one of two

ways. It may suspend any public servant pending departmental enquiry or pending criminal

proceedings; this may be called interim suspension. Or the Government may proceed to hold a

departmental enquiry and after his being found guilty order suspension as a punishment if the

rules so permit. This will be suspension as a penalty, These general principles will apply to all

public servants but they will naturally be subject to the provision of Art. 314 and this brings us to

an investigation of what was the right of a member of the former Secretary of State s Services in

the matter of suspension, whether as a penalty or otherwise.

       12. As Art. 314 only guarantees protection to those rights which were in existence

immediately before the Constitution came into force, all that is necessary is to find out the position

before, August 14, 1947 when the transfer of power took place and on January 25, 1950 just

before the Constitution came into force. Members or the Secretary of State s Services who are

protected under Art. 314 were appointed either by the Secretary of State of by the Secretary of

State in Council. Therefore on general principles it would have been open to the Secretary of State

or the Secretary of State in Council, as the case may be, to suspend a member of such Services

as the appointing authority as an interim measure pending a departmental enquiry or pending a

criminal proceeding if it thought fit to do so. What remuneration such a public servant would get

during such interim suspension would depend upon the rules if any, and if there were no rules he

would be entitled to his full emoluments during such interim suspension. But it appears that as the

Secretary of State or the Secretary of State in Council was in London it was thought proper for the

sake of administrative convenience to provide for suspension by authorities other than the

appointing authority. Reference in this connection may be made to S. 247(2) of the Government of

India Act, 1935 as in force upto August 13, 1947. That sub-section provided that "any order

suspending any such person (meaning thereby a member of the former Secretary of State s

Services) from office shall if he is serving in connection with the affairs of the Federation, be made

by the Governor-General exercising his individual judgment and, if he is serving in connection with

the affairs of a Province, be made by the Governor exercising his individual judgment . This sub-

section therefore made a specific provision for suspension by authorities other than the appointing

authority; this was in addition to the general right of the employer (namely, the Secretary of State

who was the appointing authority) to suspend an employee (namely, a member of one of the

former Secretary of State s Services). Suspension in S. 247 (2) cannot in our opinion be confined

only to suspension as a penalty. The words are general and must be given their full meaning and

would include any kind of suspension, whether as a penalty or otherwise; and this power vested

firstly in the Secretary of State or the Secretary of State in Council, as the case may be under the

general law of master and servant and also in the Governor-General and the Governor, as the

case may be, by virtue of this provision of the statute.

       13. Further S. 247 (3) also provided for remuneration of a suspended member of one of the

former Secretary of State Services and laid down that "if any such person as aforesaid is

suspended from office, his remuneration shall not during the period of his suspension be reduced

except to such extent, if any, as may be directed by the Governor-General exercising his individual

judgment or, as the case may be, by the Governor exercising his individual judgment". Besides

this statutory provision relating to former Secretary of State s Services, there was a general

provision as to payment to a government servant under suspension in Fundamental Rule 53. That

general provision is that a suspended government servant is at least entitled to one-fourth of his

pay. This general provision was subject to S. 247(3) and in the case of members of the former

Secretary of State s Services, the Governor-General or the Governor, as the case may be, had to

specify the amount which could be even more than what was provided by F. R. 53. Here again

when F. R. 53 speaks of suspension, it speaks of it in general terms. It applies to all kinds of

suspension whether as a penalty or otherwise.

       14. Further R. 49 of the Appeal Rules deals with penalties and provides suspension as a

penalty. It also provides for appeals in R. 56 etc., where suspension is inflicted as a penalty for

good and sufficient reasons. Rule 49 applied to the former Secretary of State s Services also and

thus these members were subject to the penalty of suspension.

       15. A review therefore of the general law of master and servant, the provisions of the

Government of India Act, 1935, of the Appeal Rules and the Fundamental Rules discloses that the

position on August 13, 1947 with respect to members of the former Secretary of State s Services

with respect to suspension whether as a punishment or otherwise was as follows, Members of the

former Secretary of State s Services were liable to suspension either as an interim measure or as

a punishment. Where suspension was an interim measure and not as a punishment, it could be

imposed either by the Secretary of State or the Secretary of State in Council as the appointing

authority or by the Governor-General or the Governor as the case may be as the statutory

authority. Suspension could also be imposed by the proper authority as a punishment under the

Appeal Rules and such orders of suspension were subject to appeals as provided by the Appeal

Rules. There was also provision for payment during suspension in the shape of subsistence

allowance which was governed generally by F. R. 53 and in the case of members of the former

Secretary of State s Services. F. R. 53 was subject to S. 247 (3) of the Government of India Act,

1935. Therefore, the contention of the appellant that there could be no suspension except by way

of punishment under R. 49 of the Appeal Rules before 1947 is not correct. It is equally clear that

where suspension before 1947 was an interim measure and not as a punishment under R. 49,

there was no question of any appeal from such an interim suspension pending a departmental

enquiry or pending a criminal proceeding. If the position on January 25, 1950 was same as it was

on August 13, 1947, the appellant could not substantially challenge the order of the Governor

passed on July 18, 1959, for it would have been covered by S. 247(3) of the Government of India

Act,1935 and the appellant could not claim anything more under Art. 314 of the Constitution.

       16. But Art. 314 does not speak of the protection which members of the All India Services had

on August 13, 1947; it speaks of protection which they had immediately before the

commencement of the Constitution i. e. on January 25, 1950, and that brings us to a consideration

of the changes that took place between 1947 and 1950 after the transfer of power on August 15,

1947.

       17. The effect of the transfer of power on the Secretary of State s Services in particular came

up for consideration before this Court in State of Madras v. K. M. Rajagopalan, (1955) 2 SCR 541

and it was held that "the conferral of Independence on India brought about an automatic and legal

termination of service on the date of Independence. But all persons previously holding civil posts

in Indian are deemed to have been appointed and hence to continue in service, except those

governed by general or special orders or arrangements affecting their respective cases. The

guarantee about prior conditions of service and the previous statutory safeguards relating to

disciplinary action continue to apply to those who are thus deemed to continue in service but not to

others . Section 10 of the Indian Independence Act provides for the Secretary of State s Services

and lays down that every person who having been appointed by the Secretary of State, or

Secretary of State in Council, to a civil service of the Crown in India continues on and after the

appointed day to serve under the Government of either of the new Dominions or of any province or

part thereof, shall be entitled to receive the same conditions of service as respects remuneration,

leave and pension and the same rights as respects disciplinary matters or, as the case may be, as

respects the tenure of his office, or rights as similar thereto as changed circumstances may permit

as that person was entitled to immediately before the appointed day, i.e. August 15, 1947. By

virtue of this provision those members of the Secretary of State s Services who continued to serve

the Government of India or the Government of any Province from August 15, 1947 were entitled to

the protection of S. 10. What Rajagopalan s case, (1955) 2 SCR 541 decided was that the

Government of India was not bound to continue in service every member of the Secretary of State

Services because of S. 10 of the Indian Independence Act; but that the protection of that Section

only applied to such members of the aforesaid services whose services the Government of India

agreed to continue after August 14, 1947. In Rajagopalan s case, (1955) 2 SCR 541) the

Government of India did not agree to continue Rajagopalan s services and therefore he could not

claim the protection of S. 10 of the Indian Independence Act. In the appellant s case his service

continued after the transfer of power and therefore he was entitled to the protection of S. 10 of the

Indian Independence Act, which was almost in similar terms as Art. 314 of the Constitution so far

as disciplinary matters were concerned.

       18. On August 14, 1947 however, the India (Provisional Constitution) Order, 1947 was

promulgated as G.G. O.14. By that Order, S. 247 of the Government of India Act was substituted

by a new Section and sub-ss. (2) and (3) thereof to which we have already referred were repealed.

The substituted S. 247 read as under/:

       "Conditions of service of persons originally recruited by Secretary of State - The conditions of

service, of all persons who having been appointed by the Secretary of State or the Secretary of

State in Council to a civil service of the Crown in India, continue on and after the date of the

establishment of the Dominion to serve under the Government of the Dominion or of any Province,

shall-

       (a) as respects persons serving in connection with the affairs of the Dominion, be such as

may be prescribed by rules made by the Governor-General;

       (b) as respects persons serving in connection with the affairs of a Province-

       (i) in regard to their pay, leave, pensions, general rights as medical attendance and any other

matter which immediately before the establishment of the Dominion was regulated by rules made

by the Secretary of State, be such as may be prescribed by rules made by the Governor-General;

and

       (ii) in regard to any other matter, be such as may be prescribed by rules made by the

Governor of Province .

       It will be clear from this that sub-sections (2) and (3) of S. 247 disappeared on August 14,

1947. No rules framed by the Governor-General under the new Section with respect to what we

have called interim suspension have been brought to our notice. Therefore no power was left in

the Governor-General or the Governor, as the case may be, to suspend a member of the former

Secretary of State s services, as an interim measure and only the appointment authority could

suspend such a public servant, which in the changed circumstances would be the Government of

India. The explanation for this may be that as the Secretary of State disappeared and his place

was taken by the Government of India, it might not have been thought necessary to continue the

further powers conferred by S. 247(2) in addition to the general power of the appointing authority

to suspend. Be that as it may, the fact remains that on August 14, 1947, S. 247 (2) disappeared

and therefore the Governor-General and the Governor lost the power to suspend as an interim

measure a member of the former Secretary of State s Services & such power could only be

exercised by the appointing authority which in the changed circumstances must be deemed to be

the Government of India. As for suspension as a punishment that continued to be provided in the

Appeal Rules and no change was made therein.

       19. It has however been urged that as the conferral of Independence of India brought about

an automatic and legal termination of service on the date of Independence, there must in law have

been reappointment of all members of the former Secretary of State s Services. This

reappointment in case of those serving in connection with the affairs of a Province must be

deemed to have been made by the Governor of the Province concerned and consequently, the

Governor will have the power to suspend as the appointing authority. We are of opinion that there

is no force in this argument. The antecedent circumstances with respect to such Services have

been fully dealt with in Rajagopalan s case, (1955 ) 2 SCR 541) and those circumstances show

that the question of the retention of officers serving in these Services was dealt with between the

Government of India and His Majesty s Government and it was the Government of India which

decided that all such officers should continue except those whom the Government of India was not

prepared to invite to continue and in the case of this limited class the Government of India agreed

to compensation. It was in consequence of this agreement between the Government of India and

His Majesty s Government that S. 10 of the Independence Act provided that those officers who

continued would have the same conditions of service etc. as they were entitled to immediately

before August 14, 1947. The Governors of Provinces were nowhere in the picture in this matter

and we can see no warrant for holding that the appointment must be deemed to be by the

Governors of Provinces where such officers were serving in connection with the affairs of a

Province.

       20. It is true that the Indian Administrative Service as an all-India Service was legally and

formally constituted in 1951. It is also true that under S. 10 of Indian Independence Act members

of the former Secretary of State s Services continued on and after August 14, 1947 to serve under

the Government of either of the new Dominions or of any Province or part there of. It is also true

that there are some passages in the correspondence between His Majesty s Government and the

Government of India which suggest that His Majesty s Government was thinking on the lines that

members of the former Secretary of State s Services will become members of the Provincial

Services. These however are not conclusive of the matter and we have to find out what actually

took place after this exchange of correspondence between the Government of India and His

Majesty s Government in connection with the former Secretary of State s Services. We have

already indicated that S. 10 was incorporated in the Indian Independence Act in consequence of

this correspondence between the Government of India and His Majesty s Government. Thereafter

we find that the Indian (Provisional Constitution) Order, 1947 (i. e. G. G. O. 14) was passed on

August 14, 1947 under powers conferred on the Governor-General by virtue of S. 9 (1) (a) of the

Indian Independence Act. Article 7 (1) of the Order is in these terms:

       "1. Subject to any general or special orders or arrangements affecting his case, any person

who immediately before the appointed day is holding any civil post under the Crown in connection

with the affairs of the Governor-General or Governor-General in Council or of a Province other

than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the

corresponding post under the Crown in connection with the affairs of the Dominion of India or, as

the case may be, of the Province . Reading this provision along with the provision in S. 10 of the

Indian Independence Act. it would in our opinion be right to say that so far as the members of the

former Secretary of State s Services are concerned, they must be deemed to have been

appointed to the posts on which they were serving at the time of conferral of Independence, by the

Government of India. The deemed appointment under Art. 7(1)of G. G. O. 14 was "subject to any

general or special orders or arrangements affecting his case, and these arrangements are clear

from the correspondence which ensued between the Government of India and His Majesty s

Government. That correspondence and the special orders or arrangements contemplated by Art.

7(1) of G. G. O. 14 show that so far as the members of the former Secretary of State s Services

were concerned, it was the Government of India which took the final decision whether to continue

such officers or not. It is true that in so doing it consulted the various Provincial Governments and

was to a large extent guided by the views of the Provincial Governments, particularly in connection

with such officers who were serving in connection with the affairs of the Provinces; even so, as the

facts in Rajagopalan s case, (1955) 2 SCR 541) show, the final decision whether to continue or

not a member of the former Secretary of State s Services was taken by the Government of India.

In these circumstances it would in our opinion be reasonable to hold that in the case of the

members of the former Secretary of State s Services it was the Government of India which must

be deemed to have appointed them after the conferral of Independence on India to the respective

posts which they were holding whether under the Government of India or under the Governments

of Provinces. This conclusion is reinforced by the fact that the system in force before 1947 was

that all members of the Secretary of State s Services were assigned to one Province or other and

from them such members as were necessary used to be on deputation to the Government of India

for serving it directly. It would be very anomalous indeed that the accident whether an officer was

serving on August 13, 1947 on deputation under the Government of India directly or in the

Province to which he was assigned should determine who the appointment authority must be

deemed to be on the date of the transfer of power. Such an anomaly could in our opinion never

have been intended and we have no doubt therefore in view of the history dealt with in

Rajagopalan s case, (1955) 2 SCR 541) that on the conferral of Independence, even if there was

legal termination of the services of members of the former Secretary of State s Services, the

reappointment must be deemed to be by the Government of India and not by the Governors of

Provinces even in the case of officers who were serving in connection with the affairs of Provinces.

       21. In this connection our attention has been drawn to S. 241 (1) of the Government of India

Act, 1935 as it then stood, which is in these terms:

       "(1) Except as expressly provided by this Act, appointments to the civil services of, and civil

posts under, the Crown in India, shall be made-

       (a) in the case of services of the Dominion, and power in connection with the affairs of the

Dominion, by the Governor-General or such person as he may direct;

       (b) in the case of services of a Province, and posts in connection with the affairs of a

Province, by the Governor or such person as he may direct.

       This provision in our opinion does not apply in the peculiar circumstances arising out of the

transfer of power in August 1947. It is a general provision relating to appointments to civil services

and civil posts under the Dominion or under the Provinces. It has in our opinion nothing to do with

the case of members of the civil services and holders of civil posts who were deemed to have

continued by virtue of Art. 7 of G. G. O. 14 of August 14, 1947, Clause (b) of S. 241 (1) therefore

cannot in our opinion lead to the inference that in the case of those members of the former

Secretary of State s Services who were named to have been appointed in connection with the

affairs of a Province under Art. 7(1) of G. G. O. 14, the appointments must be deemed to have

been made by the Governor. Such deemed appointments in our opinion must depend for their

validity on Art. 7 of G. G. O. 14 and not on S. 241 of the Government of India Act which is not a

deeming provision and therefore we have to look to Art. 7(1) to find out by whom the appointments

must be deemed to have been made in the case of the members of the former Secretary of State

Services. As Art. 7 opens with the words "subject to any general or special orders or

arrangements affecting his case (i.e. each individual officer s case), it must be held in view of the

history which is elaborately set out in Rajagopalan s case (1955) 2 SCR 541) that so far as

members of the former Secretary of State s Services were concerned, it was the Government of

India who must be deemed to have made the appointments in view of the special orders and

arrangements with respect to such officers.

       22. Reliance in this connection was also placed on the amendment of S. 240(2) of the

Government of India Act by the same G. G. O. Section 240(2) as it originally stood provided that

"no such person as aforesaid (meaning thereby a member of a civil service of the Crown in India

or a person holding any civil post under the Crown in India) shall be dismissed from the service of

His Majesty by any authority subordinate to that by which he was appointed''. Amendment of this

sub-section became necessary as the Secretary of State for India was disappearing and some

authority had to be provided which could dismiss members of the former Secretary of State's

Services. G. G. O. 14 therefore provided that no member of a Secretary of State's Services who

continued in service after August 14, 1947 shall be dismissed by any authority subordinate to the

Governor-General or the Governor according as that person was serving in connection with the

affairs on the Dominion or of a Province. This amendment gave power to the Governor to dismiss

even members of the former Secretary of State's Services and stress has been laid on behalf of

the respondent on this amendment and it is urged that this shows that appointments of such

members who were serving in connection with the affairs of the Provinces must be deemed to

have been made by the Governor concerned. It appears however that the amendment by which

the Governor could dismiss a member of the former Secretary of State's Services may have crept

in by inadvertence, for it would prima facie be against the provisions of the guarantee contained in

S. 10 of the Indian Independence Act. In any case this sub-section was further amended by G. G.

O. 34 and the power of dismissal was only vested in the Governor-General and was taken away

from the Governor. We are therefore of opinion that no inference can be drawn from the fact that

for a short time S. 240(2) provided that the Governor may dismiss a member of the former

Secretary of State's Services, that the appointments of such members who were serving in

connection with the affairs of the Province was by the Governor, and not by the Government of

India. Such an inference is in our opinion against the conclusion which can be plainly drawn from

the history relating to the continuance and appointment of the members of the former Secretary of

State's Services at the time of conferral of Independence and the provisions of Art. 7 (1) of G. G.

O. 14 of August 14, 1947.

       23. The final position therefore on January 25, 1950 with respect to suspension of a member

of the former Secretary of State's Services whether as a punishment or as an interim measure

pending departmental enquiry or pending a criminal proceeding was this. Such member could be

suspended under the general law by the appointing authority, which in the changed circumstances

was the Government of India, as an interim measure pending a departmental enquiry or pending a

criminal proceeding, but there was no power in any other authority to pass such an order of interim

suspension, for as we have already indicated the power under Section 247 (2) was repealed by G.

G. O. 14, of August 14, 1947. Besides this power of interim suspension otherwise than as a

punishment, the power to suspend as punishment continued under R. 49 of the Appeal Rules and

an order of suspension made in exercise of that power was subject to appeal under R. 56 etc.

thereof. So far as payment during the period of interim suspension or during the period of

suspension as a penalty is concerned, S. 247 (3) had disappeared and therefore the general

provision contained in F. R. 53 applied. That general provision has made some distinction

between the members of the Indian Civil Service and others; but that is a matter of detail, in which

it is unnecessary to go. So the position immediately before the commencement of the Constitution

was that members of the former Secretary of State's Services could be suspended either as an

interim measure pending departmental enquiry or pending criminal proceeding or as a

punishment. Where suspension was as an interim measure and not as a punishment such

suspension could only be by the appointing authority which in the changed circumstances should

be deemed to be the Government of India. Such interim suspension was not subject to any

appeal. So far as suspension as a punishment was concerned, R. 49 of the Appeal Rules applied

and the authorities specified in these Rules could pass an order of suspension as a punishment

and that order would be subject to appeal provided in R. 56 and other rules therein. As to the

payment during the period of suspension that was governed by F. R. 53. It is this position which

was protected by Art. 314 of the Constitution so far as suspension of members of the former

Secretary of State's Services was concerned whether as an interim measure or as a punishment.

       24. Then we come to the Discipline Rules, 1955. Rule 3 of these Rules provides for penalties

and omits suspension as a penalty. Now if suspension had remained a penalty under R. 3 of the

Discipline Rules, the appellant would have been entitled to the same rights as respects

suspension as a punishment or rights as similar thereto as changed circumstances would permit in

view of Art. 314. But R. 3 of the Discipline Rules has altogether done away with the penalty of

suspension for members of the Indian Administrative Service, which includes the members of the

Indian Civil Service under R. 3(a) and (b) of the Recruitment Rules. Further rules corresponding to

the Discipline Rules were repealed by R. 23 of the Discipline rules; so after the Discipline Rules

came into force in 1955, suspension could no longer be inflicted as a penalty on a member of the

Indian Administrative Service (including members of the Indian Civil Service who became

members of the Indian Administrative Service). It is therefore unnecessary for us to consider

whether the order of July 18, 1959 can be justified as a punishment and if so whether the

memorial provided by R. 20 of the Rules is a sufficient protection for the purpose of Art. 314 which

speaks of "rights as similar thereto as changed circumstances may permit.'' Nor is it the case of

the respondent that the appellant was suspended by way of punishment by the order of July 18,

1959. The respondent justifies the said order under R 7(3) of the Discipline Rules and thus the

case of the respondent is that the appellant was suspended not as a punishment but that the order

of suspension was passed by the Governor as an interim measure which he could do either

pending a departmental enquiry or pending a criminal charge. The appellant has thus been

suspended by the order of July 18, 1959 not as a punishment but as an interim measure pending

a criminal charge against him; and this is what practically in terms the order says, for it places the

appellant immediately under suspension because a criminal case was pending against him. But as

we have already pointed out the power to pass an order of interim suspension in the case of a

member of the former Secretary of State's Services on January 25, 1950 was only in the

appointing authority, (namely, the Government of India). The power to suspend a member of the

Indian Administrative Service which the appellant became by virtue of R. 3 of the Recruitment

Rules as punishment has disappeared from R. 3 of the Discipline Rules, 1955. The appellant

therefore could not be suspended by the Governor as an interim measure and such suspension

could only be by the Government of India. The proper procedure therefore in a case where the

State Government wants a member of the former Secretary of State's Services to be suspended

pending departmental enquiry or pending investigation, inquiry or trial of a criminal charge against

him is to approach the Government of India and ask it as the appointing authority to suspend such

officer as an interim measure. It is not open to the Government of India by framing a rule like R. 7

of the Discipline Rules to take away guarantee as to disciplinary matters contained in Art. 314. We

have already said that the guarantee in case of a member of the former Secretary of State's

Services is that in disciplinary matters his rights would be the same or as similar there to as

changed circumstances would permit as they were immediately before the commencement of the

Constitution. The right in the matter of interim suspension as distinct from suspension as a

punishment was that a member of the former Secretary of State's Services could not be

suspended by any authority other than the Government of India. That was guaranteed by Art. 314

and could not be taken away by framing a rule like R. 7 of the Discipline Rules. We have already

referred to Bakshi's case, (1962) Supp (1) SCR 505 : (AIR 1962 SC 505) in which it has been held

that the rights guaranteed by Art. 314 of the Constitution could not be destroyed or taken away by

the Central Government in exercise of its rule-making power. In the present case the right

guaranteed to a member of the former Secretary of State's Services with respect to interim

suspension (as distinct from suspension as a punishment) is that such a member cannot be so

suspended except by the appointing authority which in the changed circumstances is the

Government of India. That right has in our opinion, been violated by R. 7 of the Discipline Rules in

so far as it permits any authority other than the government of India to suspend pending a

departmental enquiry or pending a criminal charge, a public servant who was a member of the

former Secretary of State's Services. Rule 7 therefore in so far as it permits this violation of the

guarantee contained in Art. 314 with respect to interim suspension (other than suspension as a

punishment) is to that extent ultra vires Art. 314 i. e. in so far as it applies to the members of the

Indian Administrative Service who fall within cls. (a) and (b) of R. 3 of the Recruitment Rules. It

follows therefore that the order of the Governor dated July 18, 1959 purporting to be passed under

R. 7(3) of the Discipline Rules is without authority and must be set aside.

       25. This brings us to the question of relief to be granted to the appellant. It appears that on

September 11, 1963, the Governor passed an order by which he reinstated the appellant for the

period from July 18, 1959 to April 4, 1963 and granted him his full emoluments for that period. The

writ petition in the present case was filed in February 1962. So the appellant is apparently not

entitled to any further relief in the matter of his emoluments besides what has been granted to him

by the Governor. The order of reinstatement contained therein is unnecessary in view of our

decision and the order granting full emoluments may be taken to be in pursuance of our judgment.

       26. We therefore allow the appeal and declare R. 7 of the Discipline Rules in so far as it

applies to members of the Indian Administrative Service who are members thereof by virtue of R.

3(a) and (b) of the Recruitment Rules to be bad to the extent to which it permits an authority other

than the Government of India to suspend as an interim measure (and not as a punishment) such

members of the Services. In consequence we set aside the order of the Governor dated July 18,

1959. As however the order of September 11, 1963 has granted all such monetary reliefs to the

appellant as we could grant him on setting aside the order of July 18, 1959, no further relief can be

granted to the appellant. We order the respondent, the State of Punjab to pay the costs of the

appellant in this Court as well as in the High Court.

       RAGHUBAR DAYAL, J.:

       27. I am of opinion that this appeal should be dismissed.

       28. The appellant, a member of the Indian Civil Service, was serving under the Government of

Madras immediately before the 'appointed day', i.e., August 15, 1947 as laid down in sub-sec. (2)

of S. 1 of the Indian Independence Act, 1947 (10 and 11 Geo. 6, Ch. 30) hereinafter referred to as

the Independence Act. He continued to serve under the Government of Madras on and after the

appointed day. Subsequently, he was transferred to the State of Punjab where he was serving on

July 18, 1959 when he was suspended by the Governor of Punjab as a criminal case was pending

against him. The appellant was a member of the Indian Administrative Service in 1959 and the

order of suspension appears to have been made by the Governor in exercise of the power

conferred by R. 7 of the All India Services (Discipline and Appeal) Rules, 1955, hereinafter

referred to as the Discipline Rules. The appellant challenges the validity of this order on the

ground that this rule violates the provisions of Art. 314 of the Constitution. His contention is that

prior to August 15, 1947 a member of the Indian Civil Service could be suspended by way of

punishment in view of R. 49 of the Civil Services (Classification, Control and Appeal) Rules,

hereinafter referred to as the Classification Rules and that there was no provision for his

suspension otherwise than as a penalty and that his suspension, as a disciplinary measure,

though permissible, would have been then treated as suspension by way of penalty and therefore

as subject to an appeal under R. 56 of the Classification Rules. No appeal is provided under the

Discipline Rules against an order of suspension under R. 7 which therefore violates Art. 314 of the

Constitution as, according to that article, he was entitled to receive from the Government the same

rights as respects disciplinary matters, or rights as similar thereto as changed circumstances

permitted as he was entitled to immediately before the commencement of the Constitution. He

further contends that sub-s. (2) of S. 10 of the Independence Act guaranteed to him the same

rights as respects disciplinary matters or rights as similar thereto as changed circumstances

permitted as he was entitled to immediately before the appointed day.

       29. It was further contended, during the course of the submissions in Court, that though prior

to the appointed day an order of suspension during the pendency of a departmental enquiry or of a

criminal charge could have been made only by the Governor-General or the Governor, such an

order thereafter and till January 26, 1950 could be made only by the Governor-General, and that

therefore such a suspension order subsequent to the commencement of the Constitution could be

made by the Union Government and not by the Government of Punjab and that for this reason too,

R. 7 of the Discipline Rules empowering the State Government to make an order of such

suspension violates Art. 314.

       30. I need not discuss the various points on which I agree with my learned brother Wanchoo,

J. I agree that the expression 'changed circumstances' in Art. 314 only refers to the Constitutional

changes which occurred after the transfer of power in August 1947 and the coming into force of

the Constitution in January 1950, that suspension during the pendency of disciplinary proceedings

or of a criminal charge is related to disciplinary matters within the meaning of those words in Art.

314, that from the appointed day there was no express provision in the Government of India Act or

in the rules framed thereunder empowering the Governor-General or the Governor to suspend,

otherwise as penalty, officers appointed by the Secretary of State for India and that any order of

suspension pending enquiry against a person appointed by the Secretary of State on a day

immediately before the coming into force of the Constitution had to be made by the Government in

the exercise of the general power of suspension which an employer has with respect to his

employee, that this general power an employer has to suspend an employee pending an enquiry

into his conduct vests in the appropriate authority where the Government is the employer and a

public servant is the employee and that such an authority in the case of Government, in view of

the peculiar structure of the hierarchy of Government, be taken to be the authority which has the

power to appoint the public servant concerned. I am, however, further of opinion that the

appropriate authority in this connection can also include officers superior to the appointing

authority and that in the case of members of All India Services, serving under any State includes

the Government who, as the executive head of the State, has administrative control over all

officers serving under the State Government. It would be anomalous to hold that the Governor

could not suspend a person, appointed by the Secretary of State, during the pendency of

departmental proceedings or a criminal charge against him, though he could have imposed a

penalty of suspension on such a person in view of Rr. 49 and 52 of the Classification Rules which

were in force between the appointed day and January 25, 1950 and continued in force

subsequently, upto the coming into force of the Discipline Rules. I, however, do not rest my

decision on this view as, in my view, the appellant is to be deemed to have been appointed by the

Governor of Madras, on the appointed day, to the post corresponding to the post he was holding

immediately before the appointed day under the Madras Government.

       31. I now deal with the question of the authority which should be taken to be the appointing

authority for persons who had been appointed by the Secretary of State to the Civil Services or to

any post under the Crown and who continued to serve the Government after the appointed day.

To determine this question it is necessary to consider the following matters : 1. Did the Service

known as the Indian Civil Service, whose members were to be recruited by the Secretary of State

for India in view of Section 244(1) of the Government of India Act. cease to exist on and from the

appointed day and, if so, whether any other All India Service took its place immediately after it had

ceased to exist? 2. If it ceased to exist, were the services of the members of the Indian Civil

Service terminated immediately before the appointed day? 3. Which members of the Service

continued in service of the Government on or after the appointed day? 4. Whether those who so

continued did so on account of their becoming servants of the new Government under the

provisions of any Act, or their continuance in service was on account of their fresh appointment? 5.

If it was due to fresh appointment, which authority appointed them and to which post or service?

       32. Before I deal with the above questions, I may set out the relevant provisions which have a

bearing in this connection. The Independence Act was enacted by the British Parliament on July

18, 1947 for setting up in India two independent Dominions and to provide for necessary

consequential matters. By sub-sec. (1) of S. 1 two independent Dominions known as Indian and

Pakistan were to be set up from August 15 1947. Sub-section (2) of that Section provided for their

being referred to as the new Dominions and August 15, 1947 being referred to as the appointed

day. One of the consequences of the setting up of the new Dominions was stated in sub-s. 1 of S.

7 to be that His Majesty's Government in the United Kingdom was to have no responsibility as

respects the government of any of the territories which, immediately before the appointed day,

were included in British India. Section 9 empowered the Governor-General to make such

provisions by order as appeared to him to be necessary or expedient for certain purposes

mentioned therein. Sub-section (1) and (2) of S. 10 of the Act read :

       "1. The provisions of this Act keeping in force provisions of the Government of India Act,

1935, shall not continue in force the provisions of that Act relating to appointments to the civil

services of, and civil posts under, the Crown in India by the Secretary of State, or the provisions of

that Act relating to the reservation of posts.

       2. Every person who -

       (a) having been appointed by the Secretary of State, or Secretary of State in Council, to a civil

service of the Crown in India continues on and after the appointed day to serve under the

Government of either of the new Dominions or of any Province or part thereof; or

       (b) having been appointed by His Majesty before the appointed day to be a judge of the

Federal Court or of any court which is a High Court within the meaning of the Government of India

Act, 1935, continues on and after the appointed day to serve as a judge in either of the new

Dominions,

       shall be entitled to receive from the Governments of the Dominions of Provinces or parts

which he is from, time to time serving or, as the case may be, which are served by the courts in

which he is from time to time a judge, the same conditions of service as respects remuneration,

leave and pension and the same rights as respects disciplinary matters or, as the case may be, as

respects the tenure of his office, or rights as similar thereto as changed circumstances may permit,

as that person was entitled to immediately before the appointed day."

       The Governor-General, in the exercise of the powers conferred on him by S. 9 made the India

(Provisional Constitution) Order, 1947 (G. G. O. 14 of 1947), hereinafter called the Provisional

Constitution Order. Article 7(1) of this Order is :

       "Subject to any general or special orders or arrangements affecting his case, any person who

immediately before the appointed day is holding any civil post under the Crown in connection with

the affairs of the Governor-General or Governor-General in Council or of a Province other than

Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the

corresponding post under the Crown in connection with the affairs of the Dominion of India or, as

the case may be, of the Province."

       Sub-section (1) of S. 241 of the Government of India Act, as modified by this Order, reads :

       "Except as expressly provided by this Act, appointments to the civil services of, and civil posts

under, the Crown in India, shall be made -

       (a) in the case of services of the Dominion and post in connection with the affairs of the

Dominion, by the Governor-General or such person as he may direct;

       (b) in the case of services of a Province, and posts in connection with the affairs of a

Province, by the Governor or such person as he may direct."

       Section 247 of the Government of India Act as modified reads :

       "The conditions of service of all persons who, having been appointed by the Secretary of

State or the Secretary of State in Council to a civil service of the Crown in India, continue on and

after the date of the establishment of the Dominion to serve under the Government of the

Dominion or of any Province shall, -

       (a) as respects persons serving in connection with the affairs of the Dominion be such as may

be prescribed by rules made by the Governor-General;

       (b) as respects persons serving in connection with the affairs of a Province -

       (i) in regard to their pay, leave, pensions, general rights as to medical attendance and any

other matter which immediately before the establishment of the Dominion was regulated by rules

made by the Secretary of State, be such as may be prescribed by rules made by the Governor-

General; and

       (ii) in regard to any other matter be such as may be prescribed by rules made by the Governor

of the Province."

       33. Section 244 to 246 of the Government of India Act, 1935 which dealt with Services

recruited by the Secretary of State were omitted from the Act by this Order.

       34. Reference may also be made to the announcement by His Excellency the Viceroy on April

30, 1947. It purported to relate the grant of compensation for premature termination of their service

in India to member of the Civil Services appointed by the Secretary of State and to regular officers

and British Warrant Officers of the Indian Naval and Military Forces. Its first 7 paragraphs are set

out at pp. 548 to 550 (of SCR) in State of Madras v. K. M. Rajagopalan, (1955) 2 SCR 541. Its

paragraph 8 stated inter alia :

       "In pursuance of their wish to give all possible help to the Government of India in building up

the new services, His Majesty's Government agree that their obligation covers the claim to

ultimate compensation of those British members of the Services who are asked to serve on in

India and decide to do so."

       35. It may also be mentioned that subsequent to June 3, 1947 the Government of India made

enquiries through the Provincial Governments from the members of the Secretary of State's

Services, including the Indian Civil Service, about their desire to continue in service of the

Government after the transfer of power and also made enquiries from the Provincial Governments

themselves about their readiness to retain those officers in service who expressed their desire to

continue in service.

       36. This Court had occasion to discuss the effect of the steps taken by the Government of

India prior to the appointed day and of the provisions of the Independence Act and the Provisional

Constitution Order in Rajagopalan's case, (1955) 2 SCR 541). Rajagopalan was a member of the

Indian Civil Service and was serving in the Province of Madras till August 14, 1947 when his

services were terminated, though he had expressed his willingness to continue in the service of

the Government of Madras on and after the appointed day. What this Court directly held and

observed in connection with the points urged before it in that case would be mentioned at

appropriate places in discussing the five points I have formulated earlier.

       37. The first two points were directly decided in that case. This Court held that the Secretary

of State and his Services disappeared as from the appointed day and that S. 10(2) of the

Independence Act and Art. 7(1) of the Provisional Constitution Order proceeded on a clear an

unequivocal recognition of the validity of the various special orders and the individual

arrangements made and amounted to an implicit statutory recognition of the principle of automatic

termination of the Services brought about by the political change. It is clear therefore that the

Indian Civil Service, one of the Secretary of State's Services, ceased to exist from the appointed

day and that the services of its members automatically terminated on August 14, 1947.

       38. This Court had not to consider whether any All India Service was set up to take the place

of the Indian Civil Service on and from the appointed day, as the termination of Rajagopalan's

services was held to be valid. There is nothing on the record to show that any such new Service

took the place of the Indian Civil Service at the changeover, through, subsequently, the Indian

Administrative Service was set up as an All India Service. When it was actually set up is not

known. Article 312 of the Constitution states in cl. (2) that the Services known at the

commencement of the Constitution as the Indian Administrative Service and the Indian Police

Service shall be deemed to be services created by Parliament under that article. The All India

Services Act, 1951 (Act LXI of 1951) defined an All India Service to mean the service known as

the Indian Administrative Service or the service known as the Indian Police Service. The Indian

Administrative Service Recruitment Rules, 1954 came into force in 1954 and its R. 3 dealing with

the constitution of the service provides inter alia that the Service shall consist of (a) members of

the Indian Civil Service, not permanently allotted to the judiciary (b) members of the Indian Civil

Service permanently allotted to the judiciary who have been holding executive posts from the date

of commencement of the Constitution; (c) persons recruited to the Service before the

commencement of those Rules. It appears therefore that all the members of the Indian Civil

Service who continued to serve the Government on and after the appointed day were not made

members of the Indian Administrative Service and that those who were made members of the

Service became members of such Service in 1954. If the Indian Administrative Service had been

set up to replace the Indian Civil Service immediately on the appointed day and the erstwhile

members of the Indian Civil Service had become its members, the provisions of R. 3(a) and (b)

would have been different from what they are. This indicates that the Indian Administrative Service

did not take the place of the Indian Civil Service automatically after the changeover on the

appointed day and that therefore the members of the Indian Civil Service who continued in service

did not continue so as members of any All India Service. The Viceroy's announcement dated April

30, 1947 makes no mention of any All India Service replacing the Indian Civil Service immediately

on the transfer of power thought it specifically mentioned in para 8 about the giving of all possible

help to the Government of India in building up the new Services and to the members of the

Secretary of State's Services continuing to serve under the Government in India after the transfer

of power. The provisions of Art. 7(1) of the Provisional Constitution Order also do not refer to the

persons in the Secretary of State's Services to continue in service as members of any All India

Service though it specifically deal with the appointment of such other employees of Government to

the posts they had held on the day immediately preceding the appointed day.

       39. I am therefore of opinion that the service of the appellant as a member of the Indian Civil

Service came to an end on August 14, 1947 and that thereafter he did not automatically or

otherwise become member of any All India Service on August 15, 1947.

       40. In connection with point No. 3 formulated by me, this Court said in Rajagopalan's case,

(1955) 2 SCR 541 at p. 552 : that the continuance of service was contemplated only in respect of

such of the previous servants who intimated their desire for the continuance of their services and

whose offer in that respect was accepted, and at p. 563 (of SCR) that sub-sec. (2) of S. 10 of the

Independence Act had nothing to say as to who were the persons who would continue in service

and receive the benefit that being obviously left to be provided by delegated legislation in the

shape of the Orders of the Governor-General and at p. 565 (of SCR) that in view of the provisions

of Art. 7(1) of the Provisional Constitution Order, all persons who were previously holding civil

Posts were deemed to have been appointed and hence to continue in service excepting those

whose cases were governed by general or special orders or arrangements affecting their cases. It

is clear therefore that only those members of the Secretary of State's Services continued in

service who had been holding civil posts immediately before the appointed day and were deemed

to have been appointed to the corresponding posts in view of the provisions of Art. 7(1) of the

Provisional Constitution Order.

       41. The persons who had been holding civil posts immediately before the appointed day did

not automatically become servants of the new Government on the appointed day. Article 7(1) of

the Provisional Constitution Order contemplates 'deemed appointment' of such persons to their

respective posts on that day. The language of this article is not consistent with any suggestion that

they automatically, by the force of the Independence Act or the Provisional Constitution Order,

became holders of the respective posts on the appointed day. The language is very much different

from the language used in Arts. 374, 376, 377 and 378 of the Constitution which provide for

certain persons holding office immediately before the commencement of the Constitution

becoming, on such commencement, holders of corresponding posts on such commencement. The

language is also different from that of Art. 375 of the Constitution which deals with the continuance

of courts, authorities and officers after the commencement of the Constitution and reads :

       "All courts of civil, criminal and revenue jurisdiction, all authorities and all officers, judicial,

executive and ministerial, throughout the territory of India, shall continue to exercise their

respective functions subject to the provisions of this Constitution."

       There is no such expression in this Article which would indicate that any of these officers had

to be freshly appointed or would be deemed to have been appointed to their respective posts on

the commencement of the Constitution.

       42. The language of Art. 7(1) of the Provisional Constitution Order corresponds to some

extent that of S. 58 of 21 and 22 Vic. Cap. CVI, 1858 an Act for the better government of India,

which was passed when the government of India was transferred to Her Majesty from the East

India Company. Section 58 reads :

       "All persons who at the time of the commencement of this Act shall hold any offices,

employments, or commissions whatever under the said Company in India shall thenceforth be

deemed to hold such offices, employments, and commissions under Her Majesty as if they had

been appointed under this Act . . ."

       The language of Art. 7(1) of the Provisional Constitution Order, for purposes of comparison,

may be just noted, and is

       ".. any person who immediately before the appointed day is holding any civil post under the

Crown. .. shall, as from that day, be deemed to have been duly appointed to the corresponding

post under the Crown..."

       The language of S. 58 of the 1858 Act contemplated fresh appointment, though deemed

appointment, as is abundantly clear from the words 'shall . . . be deemed to hold such offices,

employments, and commissions as if they had been appointed under this Act. . . .'

       43. I am therefore of opinion that the Provisional Constitution Order, by its Art. 7(1), provided

for deemed fresh appointment of the members of the Secretary of State's Services whose services

had terminated automatically on the day immediately preceding the appointed day.

       44. I will now deal with the last point as to which authority would be deemed to have

appointed the persons who had been in the Secretary of State's Services, to their corresponding

posts on the appointed day.

       45. The Government of India Act, 1935 hereinafter called the Act as modified by the Orders of

the Governor-General was in force on that day and the authorities competent to make

appointments on that day would be deemed to have made the appointments of the erstwhile

servants in the Secretary of State's Services. No other authority could have made those

appointments and therefore no other authorities could be deemed to have made those

appointments which were deemed to be made in view of the provisions of Art. 7(1) of the

Provisional Constitution Order.

       46. Section 241 of the Act provided that Governor-General, or such person as he may direct,

would make appointments to the civil services of the Dominion and civil posts in connection with

the affairs of the Dominion and that the Governor would make appointments to the services of a

Province and posts in connection with the affairs of a Province. Such persons of the Secretary of

State's Services who were holding posts in connection with the affairs of a Province would

therefore be appointed to the corresponding posts, on the appointed day, by the Governor of that

Province, as only he could have made appointments to those posts. It is to be noticed that Art.

7(1) of the Provisional Constitution Order refers to appointments to posts and not to appointments

to Services and that even prior to the appointed day the appointments to the various posts in the

Provinces, of members of All India Services allotted to the cadre of the Provinces were also made

by the Governor and not by the Governor-General. In this respect, with regard to all appointments

to posts in connection with the affairs of the Provinces there had been really no change.

       47. It is contended for the appellant that his deemed appointment to the post corresponding to

the post he had held on August 14, 1947, was by the Governor-General or the Government of

India. Article 7(1) of the Provisional Constitution Order does not expressly provide so. Section 241

of the Act did not authorize the Governor-General to make appointments to posts in connection

with the affairs of the Provinces. The provisions of Art. 7(1) of the Provisional Constitution Order

refer to all the persons employed in the civil services and holding civil posts under the Crown and

are not restricted to those persons only who held posts and had been appointed by the Secretary

of State. The mere fact that the Provisional Constitution Order was made by the Governor-General

would not lead to the result that the deemed appointments of all the persons serving under the

Crown, whether as members of civil Services or a holders of posts, had been made by the

Governor-General. That could not have been intended. All such employees would be deemed to

be appointed by the appropriate authority on the appointed day and the appropriate authority for

the appointment of a particular employee is to be found in S. 241 of the Act.

       48. It is also true that the erstwhile members of the Secretary of State's Services were not

actually reappointed by the appropriate appointing authority and that they were merely deemed to

be so appointed in view of the provisions of Art. 7(1) of the Provisional Constitution Order whose

purpose was to validate the continuity of the service of such persons even though they had not

been actually appointed.

       49. I see no reason why the provisions of S. 241 of the Act be not applicable to the deemed

appointments of such persons who had been in the Secretary of State's Services. Undoubtedly, it

was not a special provision for the deemed appointments at the particular occasion, but was of

general application to appointments on and after the appointed day. Appointments, whether actual

or deemed to be made by the new Governments immediately on the changeover of the

Government, must be governed by its provisions.

       50. This Court did not make any reference to S. 241 of the Act in Rajagopalan's Case, (1955)

2 SCR 541) . This is not because that Section did not govern all the erstwhile members of the

Secretary of State's Services, but because the Court was not concerned in that case with the

question of such fresh deemed appointments as Rajagopalan did not continue in service as his

service were held to be validly terminated on August 14, 1947.

       51. It has been urged in support of the appellant's case that the retention of persons of

Secretary of State's Services was dealt with between the Government of India and His Majesty's

Government as would appear from the various documents in connection with the steps taken for

the setting up of the two Dominions and that only those officers continued in service whom the

Government of India invited to continue and that those who were not so invited were to be paid

compensation.

       52. It is not clear from the antecedent circumstances that it was the Government of India

which decided about the continuance in service of such officers of the Secretary of State's

Services who had been prior to the changeover serving under the Government of a Province.

Even if it was the Government of India which was to decide and invite the officers to continue,

such a decision and invitation cannot amount to its appointing those officers to the various posts in

connection with the affairs of a Province, in view of S. 241 of the Act.

       53. Of course negotiations with respect to the services took place between the Government of

India and His Majesty's Government. A Provincial Government could not have continued such

negotiations, I do not find any specific mention in any of the documents referred to in

Rajagopalan's case, (1955) 2 SCR 541: 541 to the effect that it was the Government of India

which decided which officers were to continue in service. The Viceroy's announcement dated April

30, 1947 practically sums up the result of the negotiations between the Government of India and

His Majesty's Government. It is clear from what was stated in paragraphs 3 and 6 of this

announcement that the undertakings and assurances with respect to persons appointed by the

Secretary of State and who were to continue in service were given by the Government of India

with respect to those who were to continue under its service and by the Provincial Governments

with respect to those who would join the Provincial Services. It is said in para 3, which dealt with

the terms of pay etc., that the Government of India would then propose to Provincial Governments

that they should give similar assurances to members of the Secretary of State's Services who

agreed to join Provincial Services.

       54. It was said in para 6 (at p. 449 of SCR):

       "His Majesty's Government have been reviewing the whole position. They have noted the

undertaking which the Government of India have given in regard to officers whom they desire

should continue to serve under the Government of India ........ Many Indian members of the

Secretary of State's services will however become members of provincial services and in their

cases His Majesty's Government's agreement that they need not be compensated is conditional

upon the Provincial Governments guaranteeing the existing terms of service. If they are not

prepared to do so His Majesty's Government reserve the right to reconsider the matter.'

       It is therefore clear that the Provincial Governments were also concerned in the negotiations

though they were actually made by the government of India and had to agree to guarantee the

existing terms of service and safeguards in matters of discipline and had also to agree to pay

compensation.

       55. It may look anomalous that some persons who had been members of the Secretary of

State's Services may be deemed to have been appointed to their respective posts, on the

appointed day, by the Governor of a Province if they had been holding posts under the Provincial

Government and others be deemed to have been appointed by the Governor-General if they

happened to be then serving posts in connection with the affairs of the Government of India or the

Dominion. Such an anomaly was bound to come into existence and had been contemplated during

the negotiations between the Government of India and His Majesty's Government. There was no

other choice open to the members of the Secretary of State's Services who were serving under

the Government of a Province when their services automatically came to an end and when they

desired to continue in Government service. Their whishes were ascertained in the context of what

was taking place. They knew of the announcement by the Viceroy dated April 30, 1947. It was only

with their consent that their services were continued after the changeover They can therefore have

no grievance for being appointed to provincial services or posts under the Provincial Governments

and, naturally, under its administrative control. In fact, even prior to the changeover, such persons

had been under the administrative control of the Provincial Government.

       56. This Court, in Rajagopalan's case, 1955-2 SCR 541: refers at p. 551 (of SCR) to the

Government of India asking the Provincial Governments, by its letter dated June 18, 1947, to

state, when forwarding the replies from the individual officers about their willingness or otherwise

to continue in service, whether for any reason they would prefer such officer not to continue in

service, notwithstanding his desire to remain in service, and pointing out to the Provincial

Government that in case it did not desire to retain the services of such persons, the Provincial

Government would be incurring the liability to pay compensation. Such an enquiry indicates, to my

mind, that the decision to continue such persons in service after the changeover rested with the

Provincial Government and it was on this account that it had to bear the liability to the

compensation payable to such persons. Such a decision had to be taken by the Provincial

Government because it was contemplated that officers serving under the Provincial Government

would be appointed to their respective posts after the changeover by that Government itself and

that the Government of India will have nothing to do with their appointments. In the circumstances,

it follows that it was the Provincial Government which invited such officers to continue in service

and not the Government of India.

       57. It is true that the Madras Government informed Rajagopalan of the Government's decision

not to retain him in service after August 15, 1947 and stated that a formal communication in that

respect would issue from the Government of India. The Government of India in a way approved of

the decision of the Madras Government not to continue Rajagopalan in service. But it does not

follow that the Government of India's approval was necessary for the Government of Madras to

continue under it service officers whom it was prepared to keep in service. The termination of

service of such officers was prior to the coming into force of the Act as modified by the Provisional

Constitution Order and therefore the termination order had to be formally made by the

Government of India. The order had to be passed prior to the changeover and at that time it was

proper that any order about the termination of the services be with the approval of the Government

of India. The fresh deemed appointment was to be made on August 15, 1947, immediately after

the changeover and, in view of the practical difficulties, such a fresh appointment was not actually

made but was deemed to have been made, as provided by Art. 7 (1) of the Provisional

Constitution Order. When the appointment was to be made of persons serving under the

Provincial Governments, there was no necessity of obtaining proper approval of the Government

of India to retain such officers in service.

       58. I am therefore of opinion that such members of the Secretary of State's Services who

were holding posts under a Provincial Government immediately before the appointed day and

continued in service on and after the appointed day are to be deemed to be appointed to the

corresponding posts by the Governor of the Province, in view of the provisions of S. 241 of the

Act.

       59. The appellant was serving under the Madras Government immediately before the

appointed day. He will therefore be deemed to be appointed by the Governor of the Province of

Madras to the post he was holding on the appointed day. The Governor of the Province was his

appointing authority and therefore he could be suspended on the day immediately before the

commencement of the Dominion by the Governor of the Province where he might have been then

serving. He can at best claim protection of his right of not being suspended pending departmental

enquiry or a criminal charge by any authority of a lower rank. Rule 7 of the Discipline Rules does

not provide for such suspension of a person who had been a member of a Secretary of State's

Services by an authority lower than the Governor. The appellant was suspended by the Governor

of Punjab on July 18, 1959. He had no right of appeal against such an order of suspension. The

Discipline Rules did not provide for an appeal against such an order of suspension and, in not so

providing, cannot be said to violate the provisions of Art. 314 of the Constitution as the appellant

had no right of appeal against such an order before the commencement of the Constitution. It

follows that R. 7 of the Discipline Rules does not violate the provisions of that Article and that the

impugned order of suspension was therefore valid.

       60. I would therefore dismiss the appeal.

       ORDER

       61. In accordance with the opinion of the majority the appeal is allowed with costs in this Court

and in the High Court.

       Appeal allowed.

       For Citation : AIR 1964 SC 787

This Product is Licensed to Seema mewara, Rajastahn State Judicial Academy, Jodhpur

2012 0 AIR(SCW) 4815; 2012 0 CrLJ 4489; 2012 132 DRJ(SC) 520; 2012 8 JT 190; 2012 4

RCR(Cri) 297; 2012 8 Scale 424; 2012 9 SCC 685; 2012 3 SCC(Cri) 1221; 2012 6 SLT 605;

2012 6 Supreme 339; 2012 0 Supreme(SC) 577;

Supreme Court of India

R.M. LODHA, CHANDRAMAULI KR. PRASAD & SUDHANSU JYOTI MUKHOPADHAYA

State Of N.C.T. Of Delhi

Versus

Ajay Kumar Tyagi

CRIMINAL APPEAL No. 1334 OF 2012 (@ SLP(Crl.) No. 1383 of 2010)

Decided on : 31-08-2012

(a) Service law - Departmental proceeding - High Court observing that departmental

proceeding cannot be kept pending indefinitely waiting for conclusion of criminal

proceeding - Employee exonerated on that basis keeping option open for reopening the

same on result of criminal proceeding - High Court quashing criminal proceeding on the

basis of exoneration in departmental proceeding - Not sustainable. (Para 10)

       2010 (8) SCALE 205 - Approved

       (1996) 9 SCC 1 - Referred to

       (b) Code of Criminal Procedure, 1973 - Section 482 - Quashing - Criminal proceeding -

On exoneration in departmental proceeding - Not permissible. (Paras 12, 13 and 15)

       1992 Supp (1) SCC 335; (2007) 14 SCC 667; (1995) 6 SCC 225; (2009) 10 SCC 674 -

Relied upon

       (1996) 9 SCC 1 - Referred to

       (c) Code of Criminal Procedure, 1973 - Section 482 - Criminal proceeding vis-à-vis

departmental proceeding - Standard of proof in departmental proceeding being lower,

exoneration in departmental proceeding cannot be quashed on ground of exoneration in

departmental proceeding alone. (Para 20)

       Facts of the case:

       This case came up before a larger Bench in view of conflicting judgments of two

Division Benches as regards whether criminal proceedings should be stayed/quashed on

exoneration in departmental proceeding on the same charges.

       Finding of the Court:

       Impugned judgment cannot be sustained.

       Result : Appeal allowed.

       

Cases referred :

P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 - Referred to[Para 4]

Kishan Singh Through Lrs. v. Gurpal Singh, 2010 (8) SCALE 205 - Approved [Para 6]

State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 - Relied upon[Para 12]

State v. M. Krishna Mohan, (2007) 14 SCC 667 - Relied upon [Para 15]

Supdt. of Police (C.B.I.) v. Deepak Chowdhary, (1995) 6 SCC 225 - Relied upon[Para 18]

Central Bureau of Investigation v. V.K. Bhutiani, (2009) 10 SCC 674 - Relied upon [Para 19] SERVICE LAW : . CRIMINAL PROCEDURE CODE : S.482

IMPORTANT POINT

Departmental proceeding vis-à-vis criminal proceeding.

Judgment :-

       CHANDRAMAULI KR. PRASAD, J.

       Ajay Kumar Tyagi, at the relevant time, was working as a Junior Engineer with the Delhi Jal

Board. Surinder Singh, a Constable with the Delhi Police applied to the Delhi Jal Board,

hereinafter referred to as ‘the Board’, for water connection in the name of his wife Sheela Devi.

The application for grant of water connection was cleared by the Assistant Engineer and the file

was sent to said Ajay Kumar Tyagi (hereinafter refered to as ‘the accused’).

       Constable Surinder Singh lodged a report with the Anti Corruption Branch alleging that the

accused demanded bribe of Rs. 2000/- for clearing the file and a sum of Rs. 1000/- was to be paid

initially and the balance amount after the clearance of file. On the basis of the information lodged,

a trap was laid and, according to the prosecution, the accused demanded and accepted the bribe

of Rs. 1000/-. This led to registration of the first information report under Section 7/13 of the

Prevention of Corruption Act.

       After investigation, charge-sheet was submitted on 19th of September, 2002 and the accused

was put on trial. Charges were framed by the Special Judge.

       In respect of the same incident, a departmental proceeding was also initiated against the

accused and the Article of Charges was served on him. In the departmental proceeding it was

alleged that the accused “being a public servant in discharge of his official duties by corrupt and

illegal means or otherwise, abusing his official position, demanded, accepted and obtained Rs.

1000/- (One Thousand) as illegal gratification other than legal remuneration from Sh. Surinder

Singh S/o Shri Ram Bhajan r/o H.No. 432-A, Gali No. 2, 80 Sq. Yards, Village Mandoli, Delhi in

consideration for giving a report on the water connection”.

       The enquiry officer conducted the departmental inquiry and submitted its report. The inquiry

officer observed that “the evidence on record does not substantiate the charge of demand and

acceptance of bribe” by the accused and, accordingly, recorded the finding that the charge against

the accused has not been proved due to lack of evidence on record.

       It seems that no action was taken on the report of the inquiry officer due to pendency of the

criminal case pending against the accused. Accordingly, he filed writ petition before the Delhi High

Court inter alia praying for conclusion of the departmental proceeding. The submission made by

the accused did not find favour with the High Court and by the judgment and order dated 2nd of

February, 2007, it dismissed the writ petition inter alia observing as follows:

       “Hence, I do not find the action of the respondents in keeping the departmental proceedings in

abeyance to be in any manner unjustified specially when the petitioner inspite of the pendency of

the criminal case against him has not been suspended from service and is continuing to perform

his duties.”

       Thereafter, the accused resorted to another remedy under Section 482 of the Code of

Criminal Procedure and prayed for quashing of the first information report lodged against him

under Section 7/13 of the Prevention of Corruption Act. The prayer for quashing of the first

information report was founded on the ground that since the accused has been exonerated in the

disciplinary proceeding by a detailed speaking order, the first information report deserves to be

quashed on that ground alone. Reliance was placed on a decision of this Court in the case of P.S.

Rajya v. State of Bihar, 1996 (9) SCC 1.

       The High Court referred to the allegation made in the criminal case and the departmental

proceeding and observed that “there is not even an iota of doubt that the charges framed in both

the proceedings are the same”. Accordingly, it quashed the criminal proceedings and while doing

so, observed as follows :

       “Considering the foregoing discussion, I am of the view that if the departmental proceedings

end in a finding in favour of the accused in respect of allegations which form basis for criminal

proceedings then departmental adjudication will remove very basis of criminal proceedings & in

such situation continuance of criminal proceedings will be a futile exercise & an abuse of the

process of Court. I find that the charge in the present case is based on the same allegations which

were under consideration before the Enquiry Officer of the Jal Board. If the charge could not be

proved in the departmental proceedings where the standard of proof was much lower it is very

unlikely that the same charge could be proved in a criminal trial where the standard of proof is

quite stringent comparatively. Thus, the prosecution of the petitioner in criminal proceedings would

only result in his harassment.”

       Aggrieved by the same, the State has preferred this special leave petition.

       Leave granted.

       It is relevant here to state that after quashing of the criminal proceeding by the High Court, the

disciplinary authority, by order dated 25th of March, 2009, exonerated the accused of the charges

“subject to the condition that if any appeal is filed by the State and an order contrary to the

impugned High Court order dated 25.08.2008 is received, the matter will be re-opened”. The

disciplinary authority had referred to the order of the High Court quashing the criminal prosecution

and exonerated the accused on that ground alone.

       When the matter came up for consideration before a Bench of this Court on 13th of

September, 2010, finding conflict between two-Judge Bench decisions of this Court, it referred the

matter for consideration by a larger Bench and, while doing so, observed as follows:

       “The facts of the case are that the respondent has been accused of taking bribe and was

caught in a trap case. We are not going into the merits of the dispute. However, it seems that there

are two conflicting judgments of two Judge Benches of this Court; (i) P.S. Rajya vs. State of Bihar

reported in (1996) 9 SCC 1, in which a two Judge Bench held that if a person is exonerated in a

departmental proceeding, no criminal proceedings can be launched or may continue against him

on the same subject matter, (ii) Kishan Singh Through Lrs. Vs. Gurpal Singh & Others 2010 (8)

SCALE 205, where another two Judge Bench has taken a contrary view. We are inclined to agree

with the latter view since a crime is an offence against the State. A criminal case is tried by a

Judge who is trained in law, while departmental proceeding is usually held by an officer of the

department who may be untrained in law. However, we are not expressing any final opinion in the

matter.

       In view of these conflicting judgments, we are of the opinion that the matter has to be

considered by a larger Bench.”

       This is how the matter is before us.

       Mr. J.S. Attry, Sr. Advocate appearing on behalf of the appellant submits that the very

assumption, on which the High Court had proceeded, that the accused has been exonerated in the

disciplinary proceeding is unfounded on facts. He points out that the inquiry officer had submitted

its finding and found the allegation to have not been proved but that would not mean that the

accused has been exonerated in the disciplinary proceeding also. He points out that the report of

the inquiry officer was yet to be considered and nothing prevented the disciplinary authority to

disagree with the finding of the inquiry officer and punish the accused after following the due

process of law. On this ground alone the order of the High Court is fit to be quashed, submits Mr.

Attry.

       Mr. Chetan Sharma, Sr. Advocate representing the respondent-accused, however, submits

that at such a distance of time, the disciplinary authority is precluded from passing any order and

the disciplinary proceeding shall be deemed to have been ended in exoneration.

       We have bestowed our consideration to the rival submissions and we find substance in the

submission of Mr. Attry. True it is that the inquiry officer has submitted its report and found the

allegation to have not been proved but, that is not the end of the matter. It is well settled that the

disciplinary authority is not bound by the conclusion of the inquiry officer and, after giving a

tentative reason for disagreement and providing the delinquent employee an opportunity of

hearing, can differ with the conclusion and record a finding of guilt and punish the delinquent

employee. In the present case, before the said stage reached, the accused filed an application

under Section 482 of the Code of Criminal Procedure for terminating the criminal proceedings and

the High Court fell into error in quashing the said proceedings on the premise that the accused has

been exonerated in the departmental proceeding. As the order of the High Court is founded on an

erroneous premise, the same cannot be allowed to stand.

       It is worthwhile to mention here that in the writ petition filed by the accused himself seeking

conclusion of the departmental proceeding, the High Court had observed that keeping the

departmental proceeding in abeyance till the pendency of the criminal case is not unjustified, and

that order has attained finality. Further, the order dated 25th of March, 2009 passed by the

disciplinary authority exonerating the accused from the charges, is founded on the ground of

quashing of the criminal proceedings by the High Court and in that, it has clearly been observed

that if an order contrary to the High Court order is received, the matter will be re- opened.

       As we have taken the view that the impugned order of the High Court suffers from an

apparent illegality, the same deserves to be set aside so also the order of the disciplinary authority

founded on that and, in the light of the direction of the High Court, the departmental proceeding

has to be reopened and kept in abeyance till the conclusion of the criminal case.

       Now we proceed to consider the question of law referred to us, i.e., whether the prosecution

against an accused, notwithstanding his exoneration on the identical charge in the departmental

proceeding could continue or not.

       Mr. Sharma, with vehemence, points out that this question has been settled and set at rest by

this Court in the case of P.S. Rajya (Supra), which has held the field since 1996, hence at such a

distance of time, it is inexpedient to reconsider its ratio and upset the same. Mr. Attry, however,

submits that this Court in the aforesaid case has nowhere held that exoneration in the

departmental proceeding would ipso facto terminate the criminal proceeding.

       We have given our anxious consideration to the submissions advanced and in order to

decipher the true ratio of the case, we have read the judgment relied on very closely. In this case,

the allegations against the delinquent employee in the departmental proceeding and criminal case

were one and the same, that is, possessing assets disproportionate to the known sources of

income. The Central Bureau of Investigation, the prosecutor to assess the value of the assets

relied on the valuation report given later on. This Court on fact found that “the value given as basis

for the charge-sheet is not value given in the report subsequently given by the valuer.”

       This would be evident from the following passage from paragraph 15 from the judgment:

       “15…….According to the learned counsel the Central Vigilance Commission has dealt with

this aspect in its report elaborately and ultimately came to a conclusion that the subsequent

valuation reports on which CBI placed reliance are of doubtful nature. The same view was taken

by the Union Public Service Commission. Even otherwise the value given as basis for the charge-

sheet is not the value given in the report subsequently given by the valuers.”

       Thereafter, this Court referred to its earlier decision in the case of State of Haryana v. Bhajan

Lal, 1992 Supp (1) SCC 335, and reproduced the illustrations laid down for exercise of

extraordinary power under Article 226 of the Constitution of India or the inherent powers under

Section 482 of the Code of Criminal Procedure for quashing the criminal prosecution. The

categories of cases by way of illustrations, wherein power could be exercised either to prevent the

abuse of the process of the court or otherwise to secure the ends of justice read as follows:

       “(1) Where the allegations made in the first information report or the complaint, even if they

are taken at their face value and accepted in their entirety do not prima facie constitute any

offence or make out a case against the accused.

       (2) Where the allegations in the first information report and other materials, if any,

accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police

officers under Section 156(1) of the Code except under an order of a Magistrate within the purview

of Section 155(2) of the Code.

       (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence

collected in support of the same do not disclose the commission of any offence and make out a

case against the accused.

       (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only

a non-cognizable offence, no investigation is permitted by a police officer without an order of a

Magistrate as contemplated under Section 155(2) of the Code.

       (5) Where the allegations made in the FIR or complaint are so absurd and inherently

improbable on the basis of which no prudent person can ever reach a just conclusion that there is

sufficient ground for proceeding against the accused.

       (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the

Act concerned (under which a criminal proceeding is instituted) to the institution and continuance

of the proceedings and/or where there is a specific provision in the Code or the Act concerned,

providing efficacious redress for the grievance of the aggrieved party.

       (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the

proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused

and with a view to spite him due to private and personal grudge.”

       The aforesaid illustrations do not contemplate that on exoneration in the departmental

proceeding, the criminal prosecution on the same charge or evidence is to be quashed. However,

this Court quashed the prosecution on the peculiar facts of that case, finding that the said case

can be brought under more than one head enumerated in the guidelines. This would be evident

from paragraphs 21 and 22 of the judgment, which read as follows:

       “21. The present case can be brought under more than one head given above without any

difficulty.

       22. The above discussion is sufficient to allow this appeal on the facts of this case.”

       Even at the cost of repetition, we hasten to add none of the heads in the case of P.S. Rajya

(Supra) is in relation to the effect of exoneration in the departmental proceedings on criminal

prosecution on identical charge. The decision in the case of P.S. Rajya (Supra), therefore does not

lay down any proposition that on exoneration of an employee in the departmental proceeding, the

criminal prosecution on the identical charge or the evidence has to be quashed. It is well settled

that the decision is an authority for what it actually decides and not what flows from it. Mere fact

that in P.S. Rajya (Supra), this Court quashed the prosecution when the accused was exonerated

in the departmental proceeding would not mean that it was quashed on that ground. This would be

evident from paragraph 23 of the judgment, which reads as follows:

       “23. Even though all these facts including the Report of the Central Vigilance Commission

were brought to the notice of the High Court, unfortunately, the High Court took a view that the

issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance

Commission, exonerating the appellant of the same charge in departmental proceedings would not

conclude the criminal case against the appellant. We have already held that for the reasons given,

on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be

pursued. Therefore, we do not agree with the view taken by the High Court as stated above.

These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the

impugned criminal proceedings and giving consequential reliefs.”

       (underlining ours)

       From the reading of the aforesaid passage of the judgment it is evident that the prosecution

was not terminated on the ground of exoneration in the departmental proceeding but, on its

peculiar facts.

       It is worth mentioning that decision in P.S. Rajya (supra) came up for consideration before a

two-Judge Bench of this Court earlier, in the case of State v. M. Krishna Mohan, (2007) 14 SCC

667. While answering an identical question i.e. whether a person exonerated in the departmental

enquiry would be entitled to acquittal in the criminal proceeding on that ground alone, this Court

came to the conclusion that exoneration in departmental proceeding ipso fact would not lead to the

acquittal of the accused in the criminal trial. This Court observed emphatically that decision in P.S.

Rajya (supra) was rendered on peculiar facts obtaining therein. It is apt to reproduce paragraphs

32 and 33 of the said judgment in this connection:

       “32. Mr Nageswara Rao relied upon a decision of this Court in P.S. Rajya v. State of Bihar [

1996 (9) SCC 1]. The fact situation obtaining therein was absolutely different. In that case, in the

vigilance report, the delinquent officer was shown to be innocent. It was at that juncture, an

application for quashing of the proceedings was filed before the High Court under Section 482 of

the Code of Criminal Procedure which was allowed relying on State of Haryana v. Bhajan Lal

[1992 Supp. (1) SCC 335] holding: (P.S. Rajya case [1996 (9) SCC 1, SCC p.9, para 23)]

       “23. Even though all these facts including the report of the Central Vigilance Commission were

brought to the notice of the High Court, unfortunately, the High Court took a view that the issues

raised had to be gone into in the final proceedings and the report of the Central Vigilance

Commission, exonerating the appellant of the same charge in departmental proceedings would not

conclude the criminal case against the appellant. We have already held that for the reasons given,

on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be

pursued.”

       Ultimately this Court concluded as follows:

       “33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be

said to be an authority for the proposition that exoneration in departmental proceeding ipso facto

would lead to a judgment of acquittal in a criminal trial.”

       This point also fell for consideration before this Court in the case of Supdt. of Police (C.B.I.) v.

Deepak Chowdhary, (1995) 6 SCC 225, where quashing was sought for on two grounds and one

of the grounds urged was that the accused having been exonerated of the charge in the

departmental proceeding, the prosecution is fit to be quashed. Said submission did not find favour

with this Court and it rejected the same in the following words:

       “6. The second ground of departmental exoneration by the disciplinary authority is also not

relevant. What is necessary and material is whether the facts collected during investigation would

constitute the offence for which the sanction has been sought for.”

       Decision of this Court in the case of Central Bureau of Investigation v. V.K. Bhutiani, (2009)

10 SCC 674, also throws light on the question involved. In the said case, the accused against

whom the criminal proceeding and the departmental proceeding were going on, was exonerated in

the departmental proceeding by the Central Vigilance Commission. The accused challenged his

prosecution before the High Court relying on the decision of this Court in the case of P.S. Rajya

(supra) and the High Court quashed the prosecution. On a challenge by the Central Bureau of

Investigation, the decision was reversed and after relying on the decision in the case of M. Krishna

Mohan (supra), this Court came to the conclusion that the quashing of the prosecution was illegal

and while doing so observed as follows:

       “In our opinion, the reliance of the High Court on the ruling of P.S. Rajya was totally uncalled

for as the factual situation in that case was entirely different than the one prevalent here in this

case.”

       Therefore, in our opinion, the High court quashed the prosecution on total misreading of the

judgment in the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have

referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding

ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view

commends us. It is well settled that the standard of proof in department proceeding is lower than

that of criminal prosecution. It is equally well settled that the departmental proceeding or for that

matter criminal cases have to be decided only on the basis of evidence adduced therein.

Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced

therein and the criminal case can not be rejected on the basis of the evidence in the departmental

proceeding or the report of the Inquiry Officer based on those evidence.

       We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso

facto would not result into the quashing of the criminal prosecution. We hasten to add, however,

that if the prosecution against an accused is solely based on a finding in a proceeding and that

finding is set aside by the superior authority in the hierarchy, the very foundation goes and the

prosecution may be quashed. But that principle will not apply in the case of the departmental

proceeding as the criminal trial and the departmental proceeding are held by two different entities.

Further they are not in the same hierarchy.

       For the reasons stated above, the order of the High Court is unsustainable, both on facts and

law.

       Accused shall appear before the trial court within four weeks from today. As the criminal

proceeding is pending since long, the learned Judge in sesin of the trial shall make endeavour to

dispose off the same expeditiously and avoid unnecessary and uncalled for adjournments.

       In the result, the appeal is allowed, the order of the High Court is set aside with the direction

aforesaid.

This Product is Licensed to Rajasthan State Judicial Academ, , Jodhpur

1997 0 AIR(SC) 13; 1996 0 AIR(SCW) 4160; 1996 8 JT 684; 1997 1 LLJ 746; 1996 7 Scale 363;

1996 6 SCC 417; 1996 5 SLR 713; 1996 7 Supreme 432; 1996 0 Supreme(SC) 1566; 1996 2 UJ

739;

1996(7) Supreme 432

SUPREME COURT OF INDIA

B.P. Jeevan Reddy and K. Venkataswami, JJ.

State of Rajasthan -Appellant

versus

B.K. Meena & Ors. -Respondents

Civil Appeal No. 12563 of 1996

(Arising out of SLP (C) No. 1026 of 1995)

Decided on 27-9-1996

Counsel for the Parties :

For the Appellant : Aruneshwar Gupta, Manoj K. Das and Manish Garg, Advocates.

For the Respondents : K. Madhva Reddy, Sr. Advocate, S.K. Jain, A.P. Dhamija and K.K. Gogna,

Advocates.

SERVICE LAW-Disciplinary proceedings-Staying of proceedings pending criminal case-

Advisability or desirability of-Stay of disciplinary proceedings cannot be, and should not

be, a matter of course-All relevant factors, for and against, should be weighed-Even if

proceedings stayed at one stage, decision may require reconsideration if criminal case

gets unduly delayed.

       Held : One of the contending consideration is that the disciplinary enquiry cannot be -

and should not be - delayed unduly. So far as criminal cases are concerned, it is well-

known that they drag on endlessly where high officials or persons holding high public

offices are involved. They get bogged down on one or the other ground. They hardly ever

reach a prompt conclusion. That is the reality inspite of repeated advice and admonitions

from this Court and the High Courts. The disciplinary proceedings are meant not really to

punish the guilty but to keep the administrative machinery unsullied by getting rid of bad

elements. The interest of the delinquent officer also lies in a prompt conclusion of the

disciplinary proceedings. Very often the disciplinary proceedings are being stayed for long

periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and

should not be, a matter of course. All the relevant factors, for and against, should be

weighed and a decision taken. (Para 10)

       We are quite aware of the fact that not all the disciplinary proceedings are based upon

true charges; some of them may be unfounded. It may also be that in some cases, charges

are levelled with oblique motives. But these possibilities do not detract from the desirability

of early conclusion of these proceedings. Indeed, in such cases, it is all the more in the

interest of the charged officer that the proceedings are expeditiously concluded. Delay in

such cases really works against him. (Para 11)

       Further held : The approach and the objective in the criminal proceedings and the

disciplinary proceedings is altogether distinct and different. In the disciplinary

proceedings, the question is whether the respondent is guilty of such conduct as would

merit his removal from service or a lesser punishment, as the case may be, whereas in the

criminal proceedings the question is whether the offences registered against him under the

Prevention of Corruption Act (and the Indian Penal Code, in any) are established and, if

established, what sentence should be imposed upon him. The standard of proof, the mode

of enquiry and the rules governing the enquiry and trial in both the cases are entirely

distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to

repeat, should not be a matter of course but a considered decision. Even if stayed at one

stage, the decision may require reconsideration if the criminal case gets unduly delayed.

(Para 13)

       

Cases referred :

Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1988 SC 2118.

S.A. Venkataraman v. Union of India & Anr., AIR 1954 SC 375.

Delhi Cloth and General Mills Ltd. v. Kushal Bhan, 1960(3) SCR 227.

Tata Oil Mills Co. Ltd. v. Workmen, 1964(7) SCR 555.

Jang Bahadur Singh v. Baij Nath Tiwari, 1969(1) SCR 134. SERVICE LAW : .

IMPORTANT POINT

Staying of disciplinary proceedings pending criminal proceedings should not be a matter of course

but a considered decision.

JUDGMENT

       B.P. Jeevan Reddy, J.-Leave granted. Heard counsel for the parties.

       2. This appeal is preferred against the order of the Central Administrative Tribunal, Jaipur

staying the departmental enquiry against the respondent till the conclusion of the criminal trial

pending against him.

       3. The respondent is a member of the Indian Administrative Service belonging to the

Rajasthan Cadre. He was working as Additional Collector, Development-cum-Project Director,

District Rural Development Agency (DRDA), Jaipur during the year 1989. He was transferred from

the said post on 21.10.89. On 8.12.89, the successor to the respondent lodged a FIR (No. 346 of

89) against the respondent in Police Station Bani Park, Jaipur inter alia alleging misappropriation

of public funds by the respondent to the tune of Rs. 1.05 crores. The Anti-Corruption Department

of the State of Rajasthan investigated into the said offence and found that the respondent was

involved in the offence and accordingly registered FIR No. 10/90 dated 12.3.90. On 22.5.90, the

respondent was placed under suspension. The respondent was arrested on 26.3.90 and remained

in custody till 10th August, 1990.

       4. On 31.3.92, the State of Rajasthan requested the Government of India for grant of sanction

for prosecuting the respondent under the Prevention of Corruption Act, 1988. On 9.9.92, the

Government of India, while not granting the sanction for prosecution, advised the Government of

Rajasthan to initiate disciplinary proceedings against the respondent. Accordingly, on 13.10.92,

the State Government issued the memo of charges accompanied by articles of charges. On

9.2.93, the respondent submitted his written statement (running into 90 pages) in reply to the

charges served upon him. At our direction, the learned counsel for the respondent has filed a copy

of the said written statement. It purports to be in response to the memo of charges dated 13.10.92

communicated to him. Though at the end, the respondent reserves his "right to add new points

when and if the documents as mentioned above are furnished to me or if the investigating agency

furnish other documents of additional points not disclosed to me till now , the written statement is a

detailed rebuttal of the charges framed against the respondent. The respondent, no doubt, says

that since all the documents were not furnished to him, he proposes to file a fuller statement after

receiving those documents but that does not mean that the respondent has not put forward his

case in reply to the charges framed against him. Putting forward his case in reply to memo of

charges cannot but mean putting forward his defence.

       5. On 13.4.93, the respondent filed O.A.No. 212 of 1993 before the Central Administrative

Tribunal, Jaipur challenging the various orders passed against him including the memo of charges.

       On 15.5.93, charge-sheet was filed in the Court of the Chief Judicial Magistrate, Jaipur,

against the respondent and cognizance thereof taken by the learned C.J.M.

       6. At the instance of the respondent, the Central Administrative Tribunal issued an order on

4.8.93 staying the disciplinary proceedings against the respondent. The State of Rajasthan

thereupon reinstated the respondent in service, revoking the order of suspension pending enquiry.

The respondent amended his O.A. requesting that the disciplinary enquiry against him be stayed

pending the criminal trial.

       7. When the Original Application came up for final hearing, the only ground urged by the

respondent was that the departmental proceedings be not allowed to go on so long as the criminal

proceedings are pending against him. It was opposed by the State of Rajasthan stating inter alia

that inasmuch as the respondent has filed a detailed written statement of defence on 9.2.93 (in

response to memo of charges framed against him) and because the respondent has disclosed all

possible defences in the said written statement, there is no occasion or warrant for staying the

disciplinary proceedings.

       8.The Tribunal found that the charge-sheet in the criminal case and the memo of charges in

the disciplinary proceedings are based upon same facts and allegations. It rejected the State s

plea that the respondent having already disclosed his defence, will not be prejudiced in any

manner by proceeding with the disciplinary enquiry. The Tribunal observed:

       "We cannot say at this stage what will emerge during the enquiry proceedings after

examination of the evidence. The applicant may well have to put forward further defence as and

when material against him emerges during the enquiry proceedings and disclosure of his defence

at that stage could well prejudice his defence in the criminal trial."

       9. Purporting to follow the decision of this Court in Kusheshwar Dubey v. M/s Bharat Coking

Coal Limited and Others1, the Tribunal allowed the respondent s plea and stayed the disciplinary

proceedings pending the criminal proceedings.

       We are of the opinion that the order of the Tribunal is unsustainable both in law and on the

facts of the case. In S.A. Venkataraman v. Union of India and Another2, the petitioner therein was

subjected to disciplinary proceedings in the first instance and was dismissed from service on 17th

September, 1953. On 23rd February, 1954, the police submitted a charge-sheet against the

petitioner therein in a Criminal Court in respect of the very same charges. The petitioner

challenged the initiation of criminal proceedings on the ground that it amounts to putting him in

double jeopardy within the meaning of Clause (2) of Article 20 of the Constitution of India. A

Constitution Bench of this Court rejected the said plea holding that there is no legal objection to

the initiation or continuation of criminal proceedings merely because he was punished earlier in

disciplinary proceedings. It is thus clear - and the proposition is not disputed by Mr. K. Madhava

Reddy, learned counsel for the respondent - that in law there is no bar to, or prohibition against,

initiating simultaneous criminal proceedings and disciplinary proceedings. Indeed not only the said

two proceedings, but if found necessary, even a civil suit can also proceed simultaneously. Mr.

Madhava Reddy, however, submits that as held by this Court in certain later decisions, it would not

be desirable or appropriate to proceed simultaneously with the criminal proceedings as well as

disciplinary proceedings.

       In Delhi Cloth and General Mills Ltd. v. Kushal Bhan3, it was held that the principles of natural

justice do not require that the employer should wait for the decision of the criminal court before

taking disciplinary action against the employee. At the same time, the Court observed: "We may,

however, add that if the case is of a grave nature or involves questions of fact or law, which are

not simple, it would be advisable for the employer to await the decision of the trial court, so that

the defence of the employee in the criminal case may not be prejudiced." In Tata Oil Mills

Company Limited v. Workmen4, it was observed, following D.C.M., that:

       "It is desirable that if the incident giving rise to a charge framed against a workman in a

domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry

pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a

course where the charge against the workman is of a grave character, because in such a case, it

would be unfair to compel the workman to disclose the defence which he may take before the

criminal court. But to say that domestic enquiries may be stayed pending criminal trial is very

different from saying that if an employer proceeds with the domestic enquiry inspite of the fact that

the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion

reached in such an enquiry is either bad in law or malafide."

       In Jang Bahadur Singh v. Bali Nath Tiwari5, the contention that initiation of disciplinary

proceedings during the pendency of criminal proceedings on the same facts amounts to contempt

of Court was rejected. After considering the ratio of these three decisions, this Court held in

Kusheshwar Dubey :

       "The view expressed in the three cases of this Court seem to support the position that while

there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases

where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal

case. In the latter class of cases it would be open to the delinquent employee to seek such an

order of stay or injunction from the court. Whether in the facts and circumstances of a particular

case there should or should not be such simultaneity of the proceedings would then receive

judicial consideration and the court will decide in the given circumstances of a particular case as to

whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have

already stated that it is neither possible nor advisable to evolve a hard and fast, strait-jacket

formula valid for all cases and of general application without regard to the particularities of the

individual situation. For the disposal of the present case, we do not think it necessary to say

anything more, particularly when we do not intend to lay down any general guideline.

       In the instant case, the criminal action and the disciplinary proceedings are grounded upon

the same set of facts. We are of the view that the disciplinary proceedings should have been

stayed and the High Court was not right in interfering with the trial court s order of injunction which

had been affirmed in appeal."

       10. It would be evident from the above decisions that each of them starts with the indisputable

proposition that there is no legal bar for both proceedings to go on simultaneously and then say

that in certain situations, it may not be desirable , advisable or appropriate to proceed with the

disciplinary enquiry when a criminal case is pending on identical charges. The staying of

disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts

and circumstances of a given case and that no hard and fast rules can be enunciated in that

behalf. The only ground suggested in the above decisions as constituting a valid ground for

staying the disciplinary proceedings is "that the defence of the employee in the criminal case may

not be prejudiced." This ground has, however, been hedged in by providing further that this may

be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it

means that not only the charges must be grave but that the case must involve complicated

questions of law and fact. Moreover, advisability , desirability or propriety , as the case may be,

has to be determined in each case taking into consideration all the facts and circumstances of the

case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a

factor which will go into the scales while judging the advisability or desirability of staying the

disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry

cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well-

known that they drag on endlessly where high officials or persons holding high public offices are

involved. They get bogged down on one or the other ground. They hardly ever reach a prompt

conclusion. That is the reality inspite of repeated advice and admonitions from this Court and the

High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead

with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier

stage. The interests of administration and good government demand that these proceedings are

concluded expeditiously. It must be remembered that interests of administration demand that

undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly.

The disciplinary proceedings are meant not really to punish the guilty but to keep the

administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent

officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the

charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he

should be dealt with promptly according to law. It is not also in the interest of administration that

persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long

periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only

serves the interest of the guilty and dishonest. While it is not possible to enumerate the various

factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise

some of the important considerations in view of the fact that very often the disciplinary

proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary

proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and

against, should be weighed and a decision taken keeping in view the various principles laid down

in the decisions referred to above.

       11. We are quite aware of the fact that not all the disciplinary proceedings are based upon

true charges; some of them may be unfounded. It may also be that in some cases, charges are

levelled with oblique motives. But these possibilities do not detract from the desirability of early

conclusion of these proceedings. Indeed, in such cases, it is all the more in the interest of the

charged officer that the proceedings are expeditiously concluded. Delay in such cases really works

against him.

       12. Now, let us examine the facts of the present case. The memo of charges against the

respondent was served on him, alongwith the articles of charges, on 13.10.92. On 9.2.93, he

submitted a detailed reply/defence statement, running into 90 pages, controverting the allegations

levelled against him. The Challan against him was filed on 15.5.93 in the criminal court. The

respondent promptly applied to the Tribunal and got the disciplinary proceedings stayed. They

remained stayed till today. The irregularities alleged against the respondent are of the year 1989.

The conclusion of the criminal proceedings is nowhere in sight. (Each party blames, the other for

the said delay and we cannot pronounce upon it in the absence of proper material before us.)

More than six years have passed by. The charges were served upon the respondent about 4

years back. The respondent has already disclosed his defence in his elaborate and detailed

statement filed on 9.2.93. There is no question of his being compelled to disclose his defence in

the disciplinary proceedings which would prejudice him in a criminal case. The charges against the

respondent are very serious. They pertain to misappropriation of public funds to the tune of more

than Rupees one crore. The observation of the Tribunal that in the course of examination of

evidence, new material may emerge against the respondent and he may be compelled to disclose

his defence is, at best, a surmise - a speculatory reason. We cannot accept it as valid. Though the

respondent was suspended pending enquiry in May, 1990, the order has been revoked in October

1993. The Respondent is continuing in office. It is in his interest and in the interest of good

administration that the truth or falsity of the charges against him is determined promptly. To wit, if

he is not guilty of the charges, his honour should be vindicated early and if he is guilty, he should

be dealt with appropriately without any avoidable delay. The criminal court may decide - whenever

it does - whether the respondent is guilty of the offences charged and if so, what sentence should

be imposed upon him. The interest of administration, however, cannot brooke any delay in

disciplinary proceedings for the reasons indicated hereinabove.

       13. There is yet another reason. The approach and the objective in the criminal proceedings

and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings,

the question is whether the respondent is guilty of such conduct as would merit his removal from

service or a lesser punishment, as the case may be, whereas in the criminal proceedings the

question is whether the offences registered against him under the Prevention of Corruption Act

(and the Indian Penal Code, in any) are established and, if established, what sentence should be

imposed upon him. The standard of proof, the mode of enquiry and the rules governing the

enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary

proceedings pending criminal proceedings, to repeat, should not be a matter of course but a

considered decision. Even if stayed at one stage, the decision may require reconsideration if the

criminal case gets unduly delayed.

       14. We must make it clear that we have not cast, and we should not be understood to have

cast, any reflection on the merits of either party s case. What we have said is confined to the

question at issue, viz., the desirability or advisability of staying the disciplinary proceedings against

the respondent pending the criminal proceeding/case against him.

       15. For the above reasons, it must be held that the Tribunal was in error in staying the

disciplinary proceedings pending the criminal proceedings against the respondent. The appeal is

accordingly allowed with costs. The order of the Tribunal is set aside. The disciplinary proceedings

against the respondent shall go on expeditiously without waiting for the result of the criminal

proceedings. The costs of the appellant are estimated at Rs. 5,000/-.

       Appeal allowed with costs.

       *******

       Parallel Citations of other Journals :

       State of Rajasthan v. B.K. Meena & Ors., 1996(7) 432 : JT 1996(8) SC 684

       00053

       00054

Supreme Court of IndiaThe Delhi Cloth And General Mills ... vs Kushal Bhan on 10 March, 1959Equivalent citations: 1960 AIR 806, 1960 SCR (3) 227Author: K WanchooBench: Wanchoo, K.N. PETITIONER:THE DELHI CLOTH AND GENERAL MILLS LTD.

Vs.

RESPONDENT:KUSHAL BHAN

DATE OF JUDGMENT:10/03/1959

BENCH:WANCHOO, K.N.BENCH:WANCHOO, K.N.GAJENDRAGADKAR, P.B.

CITATION: 1960 AIR 806 1960 SCR (3) 227 CITATOR INFO : RF 1961 SC 860 (15) RF 1965 SC 155 (9) R 1969 SC 30 (6) R 1988 SC2118 (5)

ACT:Industrial Dispute-Dismissal of employees by enquirycommittee pending trial in Criminal Court-Subsequentacquittal of the, employee--Jurisdiction of Tribunal torefuse approval of dismissal- Industrial Disputes Act 1947(XIV Of 1947), s. 33(2), proviso.

HEADNOTE:The appellant company served a charge-sheet on the res-pondent who was one of its employees alleging that he hadstolen the cycle of the company's Head Clerk. A criminalcase relating228to the theft was pending against him then. He was asked toshow cause why he should not be dismissed for misconduct,and as his explanation was unsatisfactory a certain date wasfixed for enquiry. The respondent appeared before theenquiry committee but refused to participate in the enquiryby answering questions put to him as he did not want to

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produce any defence till the matter was decided by theCourt. The company,however,after completing the enquirydirected the dismissal of the respondent on the ground thatmisconduct had been proved against him. The companythereafter made an application under s. 33(2) Of theIndustrial Disputes Act to the Industrial Tribunal forapproval of the disciplinary action taken against therespondent. In the meantime the respondent was acquitted bythe Criminal Court. 'The judgment of the Criminal Court wasproduced before the tribunal which refused to approve theorder of dismissal of the respondent. On appeal by thecompany by special leave :Held, that the principles of natural justice do not requirethat an employer must wait for the decision of the CriminalTrial Court before taking disciplinary action against anemployee.Shri Bimal Kanta Mukherjee v. Messrs. Newsman's PrintingWorks, (1956) L.A.C. 188, approved.If a case is of a grave nature involving questions of factand law which are not simple it would be advisable for theemployer to await the decision of the Criminal Trial Courtbut in a simple case like the present the tribunal erred innot granting approval under S. 33(2) of the IndustrialDisputes Act.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 88 of 1959. Appeal by special leave from thejudgment and order dated May 6, 1958, of the Industrial Tribunal, Delhi, in 0. P. No. 54 of 1958.

M.C. Setalvad, Attorney-General for India, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P.L. Vohra, for the appellant. Janardan Sharma, for the respondent.

1960. March 10. The Judgment of the Court was delivered by WANCHOO, J.-This is an appeal byspecial leave in an industrial matter. The appellant is a company carrying on the manufacture oftextiles. The respondent Kushal Bhan was in the employ of the company as a peon. It appears thatthe cycle of Ram Chandra, Head Clerk of the Folding Department was stolen on August 24, 1957.The matter was reported to the police. Sometime later, the cycle was recovered from the railwaystation cycle -stand at the instance of the respondent who took the police there and picked out thestolen cycle from among 50/60 cycles standing there. This matter was apparently brought to thenotice of the company in October 1957 and thereupon a charge-sheet was served on the respondentto the effect that he had stolen the cycle of Ram Chandra, Head Clerk, that it had been recovered athis instance and that a criminal case was pending against him with the police. He was asked to showcause why he should not be dismissed for misconduct. The respondent submitted his explanation onOctober 13, 1957. As his explanation was unsatisfactory, November 14, 1957, was fixed for enquiry.The respondent appeared before the enquiry committee but stated that as the case was pendingagainst him, he did not want to produce any defence till the matter was decided by the court. He

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further stated that he did not want to take part in the enquiry and was not prepared to give anyanswers to questions put to him. When questions were put to him at the enquiry he refused toanswer them and eventually he left the place. The company, however, completed the enquiry anddirected the dismissal of the respondent on the ground that the misconduct had been proved againsthim. Thereafter an application was made under s. 33(2) of the Industrial Disputes Act, No. 14 of1947, by the company to the tribunal for approval of the action taken against the respondent. Thematter came before the tribunal on May 6, 1958. In the meantime, the respondent had beenacquitted by the criminal court on April 8, 1958, on the ground that the case against him was notfree from doubt. The copy of the judgment of the criminal court was produced before the tribunaland it refused to approve the order of dismissal. The company thereupon applied for special leave tothis Court resulting in the present appeal.

The main contention on behalf of the appellant company is that the company was not bound to waitfor the result of the trial in the criminal court and that it could, and did, hold a fair enquiry againstthe respondent, and if the respondent refused to participate in it and left the place where theenquiry was being held, the company could do no more than to complete it and come to suchconclusion as was possible on the evidence before it. Learned counsel for the respondent, on theother hand, urges that principles of natural justice require that an employer should wait at least forthe decision of the criminal trial court before taking disciplinary action, and that inasmuch as theemployer did not do so in this case the employee was justified in not taking part in the disciplinaryproceedings which dealt with the very same matter which was the subject- matter of trial in thecriminal court.

It is true that very often employers stay enquiries pending the decision of the criminal trial court&and that is fair; but we cannot say that principles of natural justice require that an employer mustwait for the decision at least of the criminal trial court before taking action against an employee. InShri Bimal Kanta Mukherjee v. Messrs. Newsman's Printing Works (1), this was the view taken bythe Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involvesquestions of fact or law, which are not simple, it would be advisable for the employer to await thedecision of the trial court, so that the defence of the employee in the criminal case may not beprejudiced. The present, however, is a case of a very simple nature and so the employer cannot beblamed for the course adopted by him. In the circumstances, there was in our opinion no failure ofnatural justice in this case and if the respondent did not choose to take part in the enquiry, no faultcan be found with that enquiry. We are of opinion that this was a case in which the tribunal patentlyerred in not granting approval under s. 33(2) of the Industrial Disputes Act. Besides it is apparentthat in making the order under appeal, the tribunal has completely lost sight of the limits of itsjurisdiction under s. 33(2). We therefore allow the appeal and setting aside the order of the tribunalgrant approval to the order of the appellant dismissing the respondent. In the circumstances we passno order as to costs.

Appeal allowed.

(1) (1956) L.A.C. 188.

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