ORDER
G.S. Singhvi, J.
1. This appeal is directed against the order dated 2.9.1993 passed by the learned Single Judge dismissing the writ petition filed by the appellant for quashing of the orders dated 25.3.1987 and 3.3.1988 passed by the District and Sessions Judge, Sangrur and order dated 19.7.1988 passed by the High Court and also for issue of a mandamus to the respondents to reinstate him in service with consequential benefits.
2. A perusal of the record shows that the appellant joined service as Copyist in Session Division, Sangrur in pursuance of the order of appointment dated 22.5.1974 issued by the District and Sessions Judge, Sangrur. In February, 1986, a departmental enquiry was initiated against him on the charge of absence from duty. He was also placed and or suspension by an order dated 27.2.1986 issued by the Senior Sub Judge, Sangrur. The Enquiry Officer retumed the finding of guilty against the appellant and on that basis, he was dismissed from service vide order dated 15.12.1986 passed by Senior Sub Judge, Sangrur. That order was set aside by the District and Sessions Judge, Sangrur-cum-appellate authority on the ground that the Senior Sub Judge was not competent to pass order of dismissal qua the appellant, who was holding the post of Copyist. Simultaneously, the appellate authority directed holding of fresh enquiry in respect of charge-sheets dated 30.1.1986 and 27.2.1986. Shew also di- rected that the suspension order shall be deemed to have continued from the date of its inception and shall remain in force until further orders. The Enquiry Officer again held the appellant guilty of the charges of absence from duty. The District and Sessions Judge, Sangrur accepted the second enquiry report and passed order dated 3.3.1988 removing the appellant from service. The departmental appeal filed by him was dismissed by the High Court and the writ petition filed by him for quashing of the orders passed by the District and Sessions Judge, Sangrur and the High Court was dismissed by the learned Single Judge.
3. Shri S.K. Sharma Budhladewala, counsel for the appellant argued that the order of the learned Single Judge and should be declared as vitiated by an error of law and set aside because most of the legal issues raised in the petition for challenging the legality of the orders dated 25.3.1987 and 3.3.1988 and 19.7.1988 have been left undecided. Learned counsel submitted that the petitioner-appellant had challenged the order of removal on the ground of violation of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short, the Rules) and the principles of natural justice, but without considering this aspect of the matter, the learned Single Judge dismissed the writ petition. He further argued that the findings recorded by the Enquiry Officer and the punishing authority on the charges levelled against the appellant i.e., absence from duty were ex facie perverse and the punishment awarded by the latter was wholly disproportionate to misconduct allegedly committed by him, but without adverting to these grounds of challenge, the leaned Single Judge upheld the order of removal.
4. The learned Deputy Advocate General referred to the contents of the order under challenge to show that the only point urged by the counsel for the petitioner (appellant herein) before the learned Single Judge related to the legality of this continued suspension and submitted that he should not be allowed to raise new points for die first time in the appeal. He further submitted that even if the appellant had raised the plea of violation of the principles of natural justice and the Rules or proportionality of punishment, the same will be deemed to have given up because the counsel appearing on his behalf did not argued the same before the learned Single Judge.
5. We have given serious thought to the respective arguments/submissions and are of the opinion that the appeal deserves to be dismissed. A careful reading of the order of the learned Single Judge shows that the only point raised on behalf of the appellant related to the legality of de novo enquiry and the continued suspension of the appellant. Learned counsel, who appeared on behalf of the appellant, argued that the order of suspension had merged in the order of dismissal passed by the Senior Judge. Sangrur and once that order was set aside by the appellate authority, the appellant became entitled to be reinstated in service and he could not have been treated as continuing under Suspension. The learned single Judge rejected this argu-
ment with the observation that in terms of the service rules, the order of suspension would be deemed to have been continued from the date of inception. This is clearly borne out from the following extracts of the order under appeal:
“I have heard Mr. C.B. Kukar, learned counsel for the petitioner. Mrs, Charu Tuli. AAG, Punjab has appeared for the respondents.
The solitary contention raised by Mr. Kukar is that the action of the authorities in proceeding do novo with the enquiry without reinstating the pe-titioner vitiates the entire proceedings. An ancillary submission has also been raised that the order of the District Judge that the petitioner shall be deemed to have continued under suspension from the date of his dismissal is also illegal. On these premises, learned counsel has contended that the impugned orders are vitiated. The claim made on behalf of the petitioner has been controverted by the learned counsel for the respondents.
The sequence of events as delineated above shows that the petitioner was ordered to be dismissed from service vide order dated December 15. 1986. The learned District Judge. Sangrur accepted the petitioner’s appeal and set aside the order of dismissal. She further ordered that “the suspension order dated 28.2.1986 issued by the Senior Sub Judge of the appellant shall be deemed to have continued in force, from the date of original order of dismissal and shall remain in force until further orders.” The petitioner did not challenge this order either by filing any appeal against it or in any proceedings before a Court. He acquieisced in this order. He took his chance and participated in the enquiry proceedings. He was found guilty. He was given a show cause notice. He submitted his reply. No objection with regard to the validity of the proceedings on the ground that the suspension was illegal was raised. He was ordered to be removed from service. Even his appeal was dismissed. Thereafter, the present writ petition was filed on March 7, 1989. It is almost after the lapse of about two years that a grievance has been made to the effect that the order of the learned District Judge that the petitioner shall be deemed to have continued under suspension is invalid. The petitioner is estopped from raising this plea not only on account of his conduct and acquiescence but also because the grievance is highly belated. Even otherwise, on merits, no prejudice whatsoever is shown to have been caused to the petitioner. Admittedly, the petitioner had been placed under suspension on February 28, 1986. He was ordered to be dismissed from service vide order dated December 15, 1986. This order was set aside by the learned District Judge on March 25, 1987. Even if it is as-sumed that with the passing of the order of the dismissal, the order of suspension had ceased to be operative, it is conceded by Mr. Kukar that the learned District and Sessions Judge could have ordered the suspension of the petitioner afresh on March 25, 1987. In that event, no grievance could have been made against the validity of the proceedings held against the petitioner. The mere fact that the suspension was ordered w.e.f. December 15, 1986 has in no way materially affected the disciplinary proceedings held against the petitioner. No prejudice whatsoever is shown to have been caused to the petitioner in so far as the conduct of the disciplinary proceedings is concerned.
Mr. Kukar has placed reliance on the observances of their Lordships of the Supreme Court in Anand Narain Shukla v. State of Madhya Pradesh, AIR 1979 S.C. 1923 to contend that the action of the respondents in proceeding with the departmental enquiry without reinstating the petitioner is vitiated. In this case, two contentions had been raised before their Lordships viz. (i) “that after the earlier order of reversion was quashed by the High Court and after the appellant was reinstated no second enquiry on the very same charges could be held and no second order of reversion could be legally and validly made and; (2) that appellant was entitled to full salary for the period of suspension”. Their Lordships were pleased to observe as under:
“We find no substance in either of the points urged on behalf of the appellant. The earlier order was quashed on a technical ground. On merits, a second enquiry could be held. It was rightly held. The order of reinstatement does not bring about any distinction in that regard. The Government had to pass that order because the earlier order of reversion had been quashed by the High Court. Without reinstating the appellant, it would have been difficult, perhaps unlawful, to start a fresh enquiry against the appellant. The observations of this Court in the last paragraph of the judgment in Slate of Assam v. J.N. Roy Biswas, 1976((2) SCR 128 are not applicable to the facts of the present case and do not help the appellant at ait.”
Mr. Kukar submits that according to their Lordships, it would be ‘unlawful’ to initiate a fresh enquiry without reinstating the employees. I am unable to accept this contention.
It has no doubt been observed by their Lordships that it would have been perhaps unlawful to start a fresh enquiry. With utmost respect. I am unable to read this observation to mean that failure to reinstate an employee would vitiate the proceedings even though no objection whatsoever has been raised by the employee and he has been afforded a due and reasonable opportunity. In fact, under the Central Civil Services (Classification, Control and Appeal) Rules, 1957, a specific pro-vision providing inter alia that where a penalty of dismissal etc. from service imposed upon a government servant is set aside or declared or rendered void in consequence of or by a decision of Court of law and that the disciplinary authority on the consideration of the circumstances of the case decides to hold a further enquiry on the allega-
tions on which the penalty was originally imposed, the government servant shall be deemed to nave been placed under suspension by the appointing authority from the date of the original order of dismissal and shall continue to remain under suspension till further orders exist. The validity of this rule was challenged. The matter was considered by a Constitution Bench of the Supreme Court in Khem Chand v. Union of India and others, AIR 1963 SC 687. The rule was held to be valid. The claim made by the employee was rejected.
The position in the present case is in no way different. Mr. Kukar submits that the case of Khem Chand is clearly distinguishable as in that case. Rule 12 specifically provided for the deemed suspension while in the present case on no such provision exists. Even if to be so, it really makes no difference. It had been conceded before me that the competent authority could have reinstated the petitioner on March 25, 1987 and passed under order at the same time placing him under suspension. If such an action is permissible, the mere fact that the authority allowed to the old order of suspension to be revived, has really made no difference the disciplinary proceedings which were conducted against the petitioner. At best, he could have made a prayer for the payment of certain amount of money. Such a prayer has not been made in the petition.
No other point has been argued.”
6. In the face of the specific stipulation contained in the order of the learned Single Judge about the only point raised by the learned counsel for the appellant, we do not have the slightest hesitation to hold thai the appellant would be deemed to have given up other grounds taken in the petition for challenging the orders passed by the District and Sessions Judge, Sangrur and the High Court and, therefore, he is estopped from raising these grounds in the appeal.
7. In so far as the continued suspension of the appellant is concerned, we agree with the learned Single Judge that the District and Sessions Judge, Sangrur did not commit any illegality when she directed that the appellant would be deemed to be continuing under suspension. Rule 4(3) of the Rules which contemplates the continued suspension of an employee after setting aside the order of punishment reads as under: “Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government employee under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.” A perusal of the above quoted provision leaves no manner of doubt that the order of suspension passed before the imposition of penalty gets automatically re-
vived if the punishment is set aside by the appellate authority. In view of this, the direction given by the learned District and Sessions Judge. Sangrur in the order dated 25.3.1987 that the appellant would be deemed to be continuing under suspension cannot be termed as illegal and the learned Single Judge rightly declined to entertain his plea.
For the reasons mentioned above, the appeal is dismissed.
8. Appeal dismissed.