S NATARAJAN Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) THE order sought to he quashed is not in accordance with Rule 54 of the Fundamental Rules. The appellant, on certain charges, under went an enquiry, and, eventually, he was compulsorily retired. But that order was successfully challenged in a writ petition. Consequently, a second enquire was held at which it was found that the appellant was not guilty of the charges. Thereafter, an order was passed as follows: S. I. 899/tin. (old No. 580/tin.) Natarajan, who is deemed to be under suspension from 20-2-64, is released from suspension. He should report for duty forthwith The period of suspension will be treated as eligible leave. If he fails to report for duty within 21 days of receipt of this order, action will be taken to strike him off as a deserter. Apparently, this order was made by a competent authority, namely, the District Superintendent of Police. 'the order was dated 17-4-1969. This order was evidently made on the basis of an order which accepted the finding of the second enquiry officer. That order, as we find from the counter-affidavit filed for the State said : The finding is accepted and action dropped. The period of suspension will be treated as eligible leave. The learned Judge, who considered the matter on the certiorari side, thought that the appellant was asking for money relief and, therefore, he declined to interfere.

(2.) WITH due respect, we are unable to share the view of the learned Judge. In the petition under Article 226 of the Constitution, the prayer was to call for the records in the proceedings concerned and to have the order, dated 17-4-1969, quash ed. That is not asking for a direction to pay money. The appellant's claim is that in view of the fact that the second enquiry officer's finding was accepted without any remarks, his case would come within the purview of Rule 54 (2) of the Fundamental Rules. On the other hand, for the Government, it is stated that the order was made under Clause (3) of that rule. If that was the case, it was necessary for the officer who made the order to have record ed a finding that the appellant had not been completely exonerated, which was not the case. As a matter of fact, the order, which is extracted in the counter-affidavit, shows that the second enquiry officer's report that the appellant was not guilty was accepted without any observation or limitation or condition. We should, therefore, take it that the appellant was completely exonerated. If that be so, he would be entitled to come under Rule 54 (2) of the Fundamental Rules. The plea that the officer had jurisdiction to pass the order did only shows lack of appreciation on his part of the position that in order to assume jurisdiction to pass an order under Clause (3) of Rule 54, he must record a finding that the appellant had not been completely exonerated. Also, we find that before such an order was made, no opportunity was given to the appellant, which is required by the principles of natural justice.

(3.) WE allow the appeal, quash the order, dated 17-4-1969, and direct that the appellant's period of suspension will be treated as on duty under Rule 54 (2) of the Fundamental Rules. It is needless to point that the consequences of this order will follow, namely, the liability of the State to pay the appellant his full pay and allowances. The appellant will be entitled to his costs in both the writ petitions and in this Court. Counsel's fee Rupees 100 in each.