PRANLAL MANILAL PARIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant is the original plaintiff. He was a judicial officer, a Civil judge (Judicial Division) , in the judicial service of the State of Gujarat when he was visited with the penalty of dismissal from service. The facts giving rise to the institution of a civil suit by him challenging the dismissal may be briefly stated.

(2.) The appellant joined the judicial service on 3-1-1952 and he was serving as Civil Judge (Judicial Division Judicial Magistrate 1st Class) Karjan-Senior in 1961, in which capacity he was required to hold sittings at the Link Court at sinor for four days in a fortnight with headquarters at Karjan. He was, therefore, required to travel to and fro by train to discharge his duties at Sinor. It was alleged that he travelled without purchasing a ticket but preferred travelling allowance bills and collected the money from the State Treasury. On this allegation a departmental inquiry was initiated against him by the Government and District Judge, Banaskantha was appointed Enquiry Officer. At the conclusion of the departmental inquiry he was served with a notice dated 22-3-1965 to show cause why the penalty of dismissal from service should not be imposed. After taking into account the cause shown, the State Government passed an order dated November 3, 1965 dismissing him from service. That order was challenged by way of a writ petition in the High Court under article 226 of the Constitution, being Special Civil Application No. 220 of 1966. The writ petition was allowed by an order dated 20-3-1970 whereby the order of dismissal was quashed by a learned Single Judge on the ground that the state Government was not competent to order and initiate the inquiry. Consequently the order of dismissal passed on the basis of such inquiry was void. The Letters Patent Appeal No. 71 of 1970 preferred by the State of gujarat against the said order failed. Thereupon it would have been incumbent to reinstate him in service but it appears that the High Court of Gujarat on the administrative side decided to initiate a fresh inquiry against him on the same charge. So by the order dated 20-6-1975 the delinquent was placed under suspension with effect from the date of the service of that order. The inquiry conducted pursuant to the High Court direction also ended in the dismissal of the delinquent from service. The delinquent, however, claimed a sum of rs 76,579.62 p. as arrears of salary for the period from 3-11-1965 to june 26, 1975. This claim was resisted on the ground that he must be deemed to be under suspension from 3-11-1965 in view of Rule 5 (4) of the Gujarat Civil services (Discipline and Appeal) Rules, 1975, (the 'rules' hereinafter). That rule reads as under: "where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law, and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed the government servant shall be deemed to have been placed under suspension by the appointing authority, from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. " the State Government refused to pay the salary from 3-11-1965 to 26-6-1975, the date on which the suspension order' passed by the High Court dated 20-6-1975 was served on the delinquent, invoking Rule 5 (4) of the Rules. The delinquent, therefore, filed a suit. to recover the arrear of Rs 76,579.62 p. for the period between 3-11-1965 and 26-6-1975. The suit, however, failed in the trial court and that decision was confirmed in first appeal by a Division Bench of the high Court. Hence, this appeal by special leave.

(3.) Mr Krishan Mahajan, the learned counsel for the appellant formulated the point for consideration as under: "whether an order passed in a departmental inquiry held in derogation of Article 235 of the Constitution of India, can be put to use for 'deemed suspension' under Rule 5 (4) of the Rules - he contended that if the Rule is so interpreted it would directly impinge on the 'control jurisdiction' of the High Court under Article 235 of the Constitution in as much as the result of the inquiry which can be described as non est would be used for the purpose of deemed suspension. On the other hand Mr Sachthey, the learned counsel for the State submitted that the validity of similar Rule 12 (4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 was questioned before this Court in Khem Chand v. Union of India' and this court held that the said Rule was not unconstitutional. We do not think it necessary to go into the question of the constitutional validity of Rule 5 (4) of the rules. We propose to dispose of this appeal on the assumption that the said Rule is valid and intra vires the Constitution. Even on that assumption we think that in the facts and circumstances of this case that Rule could have no application.