R P KAPUR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner in this Court is a member of the Indian Civil Service By order dated 18th July, 1959, the petitioner was suspended with immediate effect by the Governor of Punjab on the ground that a criminal case was pending against him. The order also provided that for the period of suspension the petitioner shall be paid subsistence allowance 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. This order appears to have been passed under Rule 7 (3) of the All India Services (Discipline and Appeal) Rules, 1955, hereafter referred to as the Discipline Rules. On 26th May, 1961, the Government of Punjab ordered an enquiry against the petitioner under Section 2 of the Public Servants (Inquiries) Act, 1850. Another order of suspension was passed on 5th of April, 1963. (Annexure III to the petition ). The said order, inter alia, recites, Now, therefore, under Rule 7 of the All India Services (Discipline and Appeals) Rules, 1955, and in exercise of all other powers, the Governor of Punjab hereby orders suspension of the said Shri R. P. Kapur pending passing of final orders in the said enquiry and further directs that the said Shri R. P. Kapur shall continue to remain under suspension and shall be paid subsistence allowance as admissible under the rules. " Another order was passed on 11th September, 1963, directing, inter alia, that". . . . R. P. Kapur shall be deemed to have been reinstated for the period from the 18th July, 1959, to 4th April, 1963. Further, under Rule 9 (2) (a) of the All India 'services (Discipline and Appeal) Rules, R. P. Kapur is granted the full pay to which he would have been entitled, had he not been suspended, together with any allowances of which he was in receipt immediately prior to his suspension. The aforesaid period from the 18th July, 1959, to the 4th April, 1963. shall be treated as a period spent on duty. This order shall not affect the subsequent suspension of R. P. Kapur ordered on the 5th April, 1963. The order of suspension dated 5th April, 1963, was again rescinded on 25th February, 1964. The ground given for rescission of the said order of suspension is that the Supreme Court has held vide its judgment dated the 19th November, 1963, that Rule 7 of the Discipline Rules is ultra vires in so far as it permits any authority other than the Government of India to suspend, pending a departmental inquiry or pending a criminal charge, a public servant who was a member of the former Secretary of State's Service. It is also recited in the said order that the petitioner will be deemed to have been reinstated for the period from the 5th April, 1963, to the 17th February, 1964, and he shall be allowed full pay and allowances to which he would have been entitled, had the said order of suspension not been passed. In the meantime, an order suspending the petitioner had been passed on 18th February, 1964 (Annexure VI to the petition) by the Government of India placing the petitioner under suspension with immediate effect and directing that during the period of suspension he be paid such subsistence allowance as was admissible under the rules. In the aid order, it is stated:--

(2.) THE dispute basically revolves round the question whether the petitioner is entitled to his full pay and allowances of which he has been deprived by virtue of the suspension order dated 18th February, 1964, revoked on 14th May, 1965. The petitioner has challenged the validity and/or legality of the said orders on various grounds. He says that the suspension order is bad in law and illegal being in contravention of Rule 7 of the Discipline Rules. According to him, under Rule 7, it is only the Government which initiates any disciplinary proceedings which can order the suspension of a member of the service against whom proceedings are started and in the instant case the Government initiating disciplinary proceedings being the Punjab Government, no power vests in the Central Government or the President to pass a suspension order. The answer to this contention is furnished by the decision of their Lordships of the Supreme Court in R. P. Kapur. v. Union of India, AIR 1964 SC 787. It was, there, decided that the employer in such circumstances had an inherent power to pass an interim suspension order while enquiry was pending into his conduct and that in such a case the employee would be entitled to his remuneration for the period of interim suspension, if there is no statute or rule under which it could be withheld. It must, therefore, be held that the order of suspension was properly made by the President of India. So far as the withholding of remuneration is concerned, the matter is governed by Rule 8, under which the employee in such circumstances would be entitled to subsistence allowance.

(3.) THE next contention of Mr. Kapur is that the second order of suspension was rescinded on 25th February, 1964, and, therefore, he could not be suspended again on 18th February, 1964, when he was already under suspension. There is no merit in this contention. As held by their Lordships of the Supreme Court in R. P. Kapur's case, AIR 1964 SC 787, the order of suspension dated 5th April, 1963, by the Punjab Government was illegal. That being so, no notice can be taken of the said order of suspension.