STATE OF GUJARAT Vs. VRAJLAL HANSRAJ SANGHRAJKA

JUDGEMENT

(1.) The facts giving rise to this appeal are simple. The present respondent was serving as a store keeper at Veraval under the State of Gujarat and was drawing the salary of Rs. 108-50 as dearness allowance per month in October 1957. He was suspended from duty from 15th October 1957 as a result of certain allegations made against him. A charge sheet was submitted against him by the appellant in the Court of the learned Special Judge Junagadh for offences punishable under secs. 467 471 477 of the Indian Penal Code and sec. 5(1)(c) and (d) read with sec. 5(2) of the Prevention of Corruption Act. He was however given benefit of doubt and acquitted in all the three cases. Some departmental inquiry was also held against him on 19th February 1958 but no punishment was awarded to him thereunder. Thereafter he was reinstated on duty from 8th May 1959 by the order of the port officer. The period of suspension from 15th October 1957 to 8th May 1959 was treated as if he was on leave. However that period was counted as on duty only for the purpose of pension and not for other purposes. According to the plaintiff the said order dated 4th March 1960 regularising the period of suspension was arbitrary illegal unauthorised and was passed without giving him an opportunity to show cause against the same. According to him he was entitled to receive full salary for the whole period. He therefore filed a suit against the State of Gujarat and prayed for a decree of Rs. 2456.61 paise being the amount of salary and other emoluments which he would have been entitled to receive during the period of suspension. The State by its written statement Ex. 14 admitted the facts stated in the plaint regarding suspension of the plaintiff and his subsequent reinstatement as a result of acquittal in those cases. However it contended that the impugned order regularising the period of suspension was lawfully passed. It stated that it was not penal and was not contrary to the provisions of the Bombay Civil Services Rules that the said decision of the executive officer was not justiciable and the plaintiffs claim was barred by limitation. The learned trial Judge raised several issues at Ex. 16. He held that the plaintiff had failed to prove that he was illegally suspended from service. In his opinion he was not entitled to receive full salary including dearness allowance for the suspension period. He also held that it was not a justiciable case and dismissed the suit. Against the said judgment and decree passed by the learned Civil Judge Senior Division Junagadh an appeal was preferred in the District Court which was heard by the learned Assistant Judge who held that the impugned order was justiciable and was penal in nature and was passed in breach of principles of natural justice. He also held that the claim was not time barred. He therefore allowed the appeal and decreed the plaintiffs suit with costs. Against the said judgment and decree the State has preferred the present appeal to this Court. 2 Mr. G. T. Nanavaty who appeared on behalf of the State submitted that the only material question which arose in this appeal is whether it was incumbent on the State to give an opportunity to the plaintiff of bearing heard before necessary orders were passed under rule 152 of the Bombay Civil Services Rules. He urged that rule 152 did not require the presence of the person concerned and it was quite competent to the authority to pass necessary orders. He submitted that it cannot be said that the order was not passed properly and that such an order passed without hearing the person concerned cannot be said to be without jurisdiction. He urged that if the plaintiff had no inherent right of being heard it would not be proper to say that the principles of natural justice were violated:

(2.) In order to appreciate the submissions made by Mr. Nanavaty it will be worthwhile to refer to rule 152 of the Bombay Civil Services Rules. It says

(3.) The result of this declaration is that there is no order of the competent authority under rule 152 of the said Rules. In that case it will be necessary for the competent authority to pass appropriate orders under the said rule. After hearing the plaintiff it will be open to the competent authority to pass appropriate orders as laid down under rule 152 of the Rules. 1 therefore pass the following order :