B.H. MARWAHA Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition under Art. 226 of the Constitution the petitioner challenges the order dated 18.6.1970 (Annexure I) passed by respondent No.3 under Fundamental Rule 54 directing that the period of suspension of the petitioner shall be treated as duty for all purposes except for pay and allowances which shall be restricted to what he has already been paid as subsistence allowance.

(2.) The relevant facts in brief are that the petitioner was employed as Inspector, Central Excise, under respondent and is posted in the Inspection Group at Jaipur. By an order dated 17.11.1959 he was suspended by respondent No.3 (Annexure III). On 5.3.1960 statement of charges framed against him consisting of five charges was given to him (Annexure IV). Enquiry was held and by an order dated 12.4.1962 he was removed from service. He appealed which was accepted by an order dated 26.3.1964 (Annexure V). The appellate authority while setting aside the order of removal directed that denovo proceedings should be held against him and that he should be deemed to have been under suspension from 12.4.1962 i.e. the date of the order of removal. Fresh memo of charges, which were the same as the earlier ones, was given to him on 4.5.1964. After a lapse of practically two years i.e. on 14.4.1966, denovo enquiry started. The Enquiry Officer by his report dated 7.10.1966 (Annexure VIII-A) exonerated the petitioner of all the charges except charge No.1. Respondent No.3 issued a Show Cause Notice dated 17.1.1967 to the petitioner on the basis of this report calling upon him to show cause against the proposed penalty of removal from service (Annexure VIII). On the basis of the explanations given by the petitioner, respondent No.3 exonerated the petitioner of all the charges (Annexure IX). On the same date by another order (Annexure X), the order of suspension was revoked with immediate effect. The petitioner by his letter dated 5.5.1967 (Annexure XI) requested respondent No.3 to treat the suspension period as the period spent on duty and order payment of all the arrears of pay and allowances. Respondent No.3 by his order dated 14.6.1967 ordered that the period of suspension shall be considered as on duty for all purposes except for pay and allowances which will be restricted to what has already been paid to him. The petitioner appealed to the Central Board of Excise and Customs quoting the case of M. Gopal Krishna Naidu Vs. The State of Madhya Pradesh, AIR 1968 SC 240 , and submitted that no order under Fundamental Rule 54 to his detriment could be passed without affording him a reasonable opportunity of being heard. The appeal was dismissed and the petitioner was informed about it on 14.5.1969.

(3.) After giving a requisite notice under Sec. 80 of the Code of Civil Procedure , the petitioner filed a suit against the respondents on 28.2.1969 at Jaipur. During the pendency of the suit, it is alleged, the petitioner was called by respondent No.3 as well as his subordinate, Deputy Collector of Excise at Jaipur, for setting the dispute on various dates. However, no settlement was arrived at. The District Judge, Jaipur, by his order dated 3.12.1969 returned the plaint to the petitioner holding that he had no territorial jurisdiction in the suit. The petitioner preferred an appeal on 4.2.1970 to the High Court of Rajasthan (Bench at Jodhpur) which is pending.