JUDGMENT
R.R.K. Trivedi, J.
1. A learned Single Judge in Civil Misc. Writ Petition No 37167 of 1994 Jagjit Singh v. State of U. P, decided on 19-12-1894 reported in (1996) 1 UPLBEC 405 declared Rule 49-A (2) (a) of U. P. Civil Services (Classification, Control and Appeal), Rules, 1930 (hereinafter referred to as the Rules) as null and void being violative of Articles 14 and 21 of the Constitution of India. Another learned Single Judge in Civil Misc. Writ Petition No. 38588 of 1914 Chandra Shekhar Saxena v. Director of Education (Basic), U. P., Allahabad, disagreed with the view expressed in the case of Jagjit Singh v. State of U. P., and consequently referred two questions for decision by a Larger Bench Hon’ble the Chief Justice nominated Division Bench of consideration of the questions. However, the Division Bench while considering the questions referred to it came across Division Bench view in case of Anand Kumar Gupta v. State of U. P. and Ors., (1993) 1 UPLBEC 165 (DB) wherein it has been laid down that even in the absence of any order of suspension passed in writing, a Government servant shall be deemed to have been placed under suspension from the date of his detention. As the Division Bench disagreed with the aforesaid view, it referred the aferesaid two questions for consideration of a Full Bench. Thus, this matter has come before us.
2 During the course of hearing Shri Rakesh Dwivedi, learned Additional Advocate General mentioned that the judgment of the learned Single Judge in care of Jugjit Singh v. State of V. P., has been challanged in Special Appeal No. 436 of 1995 which is pending and the appeal may also be heard along with Writ Petition No. 39588 of 1994 as in both the cases, the judgment declaring Rule 49-A (2) (a) of the Rules as null and void being violative of Articles 14 and 21 of the Constitution of India is subject matter of consideration. On this request the record of the aforesaid appeal was also summoned by us. The questions referred to this bench are as under :
“1. Whether Sub-Clause (a) of Sub-rule (2) of Rule 49-A of the Civil Service (Classification, Contol and Appeal) Rules, 1930 as applicable in Uttar Pradesh is violative of Articles 14 and 21 of the Constitution of India and null and void ?”
“2 Whether the legal fiction evisaged under Rule 49-A, (2) (e) or (b) can come into play even in the absence of an order of suspension passed in writing ? ”
3 It would be appropriate to take notice of the judgments by other Division Benches relevant to the subject matter of controversy before us which have not been mentioned in the referring orders, In the case of Hari Shanker Dwivedi v. Board of Revenue through its Secretary and Anr., 1936 AWC 1118 (DB) (LB) a Division Bench of this Court (Lucknow Bench) expressed the view that a Government Servant detained in custody for a period of 48 hours will be treated to have been placed under suspension by an order passed by appointing authority although in fact such an order was not passed Such suspension will not lapse on his being released from detention. He will be deemed to be under continued suspension. The judgment was delivered for Division Bench by Hon’ble Mr. Justice S. Saghir Ahmad (as his Lordship then was), in Special Appeal No. 303 of 1992 (decided on 21-7-1992) Shri Kalika, Singh v. Director General and Ors., a Division Bench took the view that an order in writing was necessary to invoke the deeming provisions of Rule 49-A (2) of the Rules. In this case the employee after release was allowed to join his duty and continued to function for about six months when the impugned order of suspension was passed. The order was set aside in appeal. In Special Appeal the judgment was delivered by Hon’ble Mr. Justice M. K. Mukherjee, Chief Justice (as his Lordship then was). In Writ Petition No. 11437 of 1987 Dr. Tej Narain Chandra v. State of U.P. and Ors., decided on 22-3-1995, a Division Bench placing reliance on the judgment dated 21-7-1992 in the aforesaid Special Appeal No. 303 of 1992 has held that considering the underlying policy and the object behind Rule 49-A (2) (a) of the Rules, the suspension contemplated therein cannot be treated to be an automatic suspension. It cannot come in existence in absence of an order having been passed by the appointing authority in this regard. This provides an inherent mechanism or an interimsic check preventing any uncalled for or unjustified hardship to the concerned employee.
4. From the afore-mentioned three judgments, it is clear that the Division Benches have interpred and construed the provision contained in Rule 49-A (2) of the Rules in different manner which is also required to be resolved by this Full Bench besides answering the questions referred to it.
5. The hearing of the writ petition and the Special Appeal on merits by all of us sitting together will result in unnecessary waste of time. We, therefore, express our opinion on the question of law involved and thereafter the Special and the writ petition shall be heard and decided by the appropriate Benches.
6. We have heard Shri S. K. Verma, learned counsel appearing for petitioner in the writ petition, Sri Rakesh Dwivedi, Additional Advocate General for appellant in Special Appeal, Shri R. C. Srivastava, learned Senior Advocate for respondent and Shri Ajit Kumar, Advocate, who appeared as intervenor with our permission and made his oral submissions and also submitted synopsis of his submissions in writing. We have also perused the written submissions filed by Shri P. P. Srivastava, Additional Advocate General for respondents in the writ petition.
7. Shri S. K. Verma has submitted that the provisions contained in Rule 49-A (2) (a) of the Rules are penal in nature as they put a Government servant under an automatic suspension irrespective of the nature and gravity of the for which he was kept under detention for more than forty-eight hours. Even the mitigating circumstances can not be looked into no descretion has been left with the appointing authotity. The provision suffers form the vice of arbitrariness and unreasonableness as there is no scope of consideration of the guidelines contained in other Sub-rules (1) and (1-A) of Rule 49-A of the Rules. The condition for which an employee will be suspended in dependent on uncertain events. The event may be such on which no body may have any control and such situations in day to day life can be well visualized by the Court. The provisions, thus, suffers from uncertainty. It has been further submitted that Sub-rule(2) does not say as to what shall be the period of suspension of the employee. It also provides for retrospective suspension on the order of suspension being passed which is wholly illegal and cannot be sustained. The learned counsel has submitted that such a provision cannot be allowed to remain in the Statue Book and has rightly been declared to be null and void by the learned Single Judge and the Judgment does not suffer from any error of law. Learned counsel has planced reliance in case of Jagjeet Singh v. U.O. (1996) 1 UPLBEC 405 : 1995 (1) Education and Service Cases 329, Ajai Hasia v. Khalid Mujib, AIR 1981 SC 487, Menka Gandhi v. Union of India and Ors., AIR 1978 SC 597, Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101, O.P. Gupta v. Union of India and Ors., AIR 1987 SC 2257 : 1988 (1) Service Law Journal 121 (SC).
8. Shri R. C. Srivastava, learned Senior Advocate, appearing for the respondents in Special Appeal, has submitted that under Sub-rule (1-A), the suspension is on the discretion of the appointing authority in cognizable cases. From perusal of Sub-rule (1-A), it is clear that guidelines have been provided for exercise of this power but in Sub-rule (2) of Rule 49-A of the Rules, there is an automatic suspension. It does not leave any discretion for the appointing authority. The reason behind detention is not taken into account at all as the provision contained in Sub-rule (2) is arbitrary and leads to automatic suspension. It has rightly been declared to be null and void specially as it takes the valuable right, guaranteed under Article 21 of the Constitution of India. Learned counsel has placed reliance in case of D. K. Yadav v. J. M. A. Industries, 1993 (3) SCC 259 C. P. Gupta v. Union of India and Ors., AIR 1987 SC 2257, Consumer Education and Research Centre and Ors. v. Union of India, (1995) 3 SCC 42, Kirloskar Brothers Ltd. v. Employees State Insurance Corporation, (1996) 2 SCC 682.
9. Shri Ajit Kumar, Advocate, appearing as intervenor, has submitted that order of suspension cannot be passed except where the charges are serious enough to warrant dismissal, removal or reduction in rank. It is submitted that even on the conviction, the dismissal or removal from service is not automatic but a specific order is required to be passed by the appointing authority. In all Sub-rule (2) is quite plain and clear and like other provisions of Rule 49-A, it also contemplates discretion, application of mind and passing of order. The of Sub-rule (2) require to be interpreted in harmony with other Sub-clauses of Rule 49-A and it should not be interpreted in the manner so as to destroy the scheme and spirit of other parts of the Rule. It has also been submitted that Sub-rule (2) is to be read along with Sub-rules (1) and (1-A) of Rule 49-A of the Rules. Learned counsel has placed reliance and cited several authorities in his synopsis of submissions which shall be considered at the relevant place.
10. Shri Rakesh Dwivedi, learned Additional Advocate General tracing the history of Rule 49-A has submitted that it was inserted in the Rules on 30-1-1953 and Rule 49-A in the present form was substituted on 30-10-1976. Rule 49-A has been subject matter of consideration of two Full Benches of this Court reported in State of U, P. v. J. L. Bhargava, 1974 ALJ 282 (FB) and State of U. P. v. Jay Singh, Dixit, 1974 ALJ 862 (FB) Shri Dwivedi has submitted that the provisions contained in Sub-rule (2) should considered alongwith the provisions contained in Sub-rule (5) which contains a protection and the employee suspended under Sub-clause (2) may approach the appoint-ing authority for (evocation of his suspension. Instead of declaring the provision null and void being violative of Articles 14 and 21 of the Constitution of India, there should have been a value judgment considering different situations. It is submitted that if such an interpretation is not accepted there are chances of great mischief and abuse. The provision has been enacted with sum purpose and it has served the purpose and stood test of time for the last several decides. Shri Dwivedi has further submitted that deemed suspension can only be in case of detention on a criminal charge or otherwise for more than 48 hours. The word ‘otherwise’ will take colour from the word it goes in company, namely the criminal charge and it will not apply to the detention of civil nature. It has been submitted that the expressions given by the two words ‘criminal charge’ and ‘otherwise’ may be overlapping but it has been deliberately done so that there may not be any snapping. It is by way of abundant caution. Learned counsel has further submitted that the principles of distribution may be applied in the present case and the first part of Sub-rule (2) may be made applicable to Clause (a) of Sub-rule (2) and the latter part providing for “continued to be placed under suspension” may be used for Clause (b). It has been further submitted that the provisions of sub-ruin (2) have been assailed mainly the ground that the period of 48 hours is too short in the present state of affairs and it has been rightly declared to be null and void. Shri Dwivedi, however, has submitted that instead of declaring the previsions null and void, the legislature could have been advised to take care of the situation. The provision is in the zone of suspension and it is not by way of punishment. Learned counsel has submitted that Article 22 of the Constitution of and Sections 56 and 57 of Criminal Procedure Code contain provisions against illegal and prolong detention and the provisions of Sub-rule (2) can be attracted only in a case of vaild detention in accordance with law. It has also been submitted that most of the offences under the Indian Penal Code are bailable offences and a very small number are nonbailable offences where there may be chances of delay in obtaining bail but for this reason alone the provision could not be declared to be null and void. It is submitted that for the purpose of suspension period of 48 hours in sufficient and reasonable. Learned counsel has further submitted that if the Court comes to the conclusion that in the present state affairs, the provisions contained in Sub-rule (2) are causing unnecessary hardship, the Court may read it down in such a manner so as to bring it in harmony with the other provisions of Rule 49-A. Specially in Sub-rule (5) a grafting may be done and a time limit may be fixed within which the appointing authority may decide the representation of the employee and the principles of natural justice may also be read there in so as to avoid any kind of arbitrariness. The law must be judged in generality and not keeping in view facts of a paiticular case. The provision cannot be declared to be unconstitutional in this manner and the judgment of the learned Single Judge cannot be sustained. Shri Dwivedi has placed reliance in cases : Jagendra Kumar v, State of U. P., (1994) 4 SCC 260, Koteshwar Mittal Kamath v. K. Rangappa Raliga and Company, AIR 1959 SC 504, Nelson Motis v. Union of India and Anr., (1992) 4 SCC 711, State of Andhra Pradesh and Ors. v. M.C. Dewell and Co. and Ors., JT 1996 (3) SC 079, Fateh Chand Himmatlal and Ors. v. State of Maharashtra, AIR 1977 SC 1825, Orissa State Electricity Board and Anr. v. I.P.I. Steel Ltd. etc., JT (1995) 4 3C 102, Ratan Chand Hira Chand v. Askar Nawaz Jung and Ors., (1991) 3 SCC 67, Maharashtra. State Board of Secondary and Higher Secondary Education v. K. S. Gandhi and Ors., JT (1991) 2 SC 296, T. R. Thandur v. Union of India and Ors.,, JT 1996 (4) SC16, Chhabba Lal v. Kalla Lal and Ors. AIR 1946 PC 72, George De Costa v. Controller of Estate Duty, Mysore, AIR 1967 SC 849, S. Prakasha Rao and Anr. v. Commissioner of Commercial Taxes and Ors., AIR 1990 SC 997 and The Union of India v. Sri Om Prakash, AIR 1976 SC 1745.
11. In the written arguments submitted by Sri P.P. Srivastava for respondents in the writ petition, it has been submitted that Article 14 forbids the class legislation. It does not forbid classification or diffrentia which rests upon the reasonable grounds of distinction. The principle of equality as envisaged in Article 14 does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances, in the same position. Verying need of different class of persons require different treatment. Classifications should be reasonable, It must be founded on intelligible diffrentia which discloses persons or things that are grouped together fro m others left out of the group. The differentia must have a rational relation to the object sought to be achieved by the statute in question. Reliance has been pieced in Prabodh Verma v. State of U. P., (1984) 4 SCC 251 and Motor General Traders v. State of A.P., (1984) 1 SCC 222. It has been further submitted that there is always a presumption of constitutionality of an Statute and the burden is upon who attacks it and he has to show that there has been any transgression of the constitutional principles. In the present case there is a total lock of such pleading and proof.
12. Rule 49-A also does not in any way violate the provisions of Article 21 but it deals with a special circumstance, namely where the government servant is under detention. The provisions contained in Rule 49-A are sufficient to protect the interest of the employee and they are not arbitrary.
13. We have thoroughly considered the rival submissions of the learned counsel for the parties and have also gone through the cases relied on by them. Before we proceed with the discussion about the provisions contained in Rule 49-A of the Rules, it would be appropriate to reproduce the relevant part of Rule 49-A of the Rules at this place for ready reference and convenience :
“49-A. (1) A Government servant against whose conduct an inquiry is contemplated or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority :
Provided that in the case of any Government servant or class of Government servants not belonging to State service, the appointing authority may delegate its power under this Sub-rule to the next lower authority :
Provided further that any other authority empowered by the Governor by general or special order in this behalf, may place a Government servant under suspension under this Sub-rule:
Provided also that in the case of a member of a judicial service (within the meaning of Article 236 of the Constitution), the Governer may delegate his powers under this Sub-rule to the High Court.
(1-A) A Government servant in respect of or against whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the appointing authority under whom he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude.
(2) A Government servant shall be deemed to have been placed, or as the case may be, continued to be placed, under suspension by an order of the appointing authority-
(a) with effect firm the date of his detention, if he is detained in custody whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours ; and
(b) with effect from the date of his conviction, if in the event of a conviction for en offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction.
Explanation-The period of forty-eight hours referred to in Clause (b) of this Sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
XX XX XX (5) (a) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain inforce until it is modified or revoked by any authority specified in Sub-rule (1). (b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection, with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the aurhority competent to place him under suspension may, for reasons to be recorded by him in writing, directed that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings."
14. The problem before this Bench is regarding interpretation of a provision creating legal fiction. For interpreting such a provision certain principles have been laid down which are to be kept in mind. The first important principle for interpreting a provision creating legal fiction is that the Court has to ascertain the purpose for which the legal fiction has been created and after ascertaining the purpose the Court has to assume all other facts and consequents which are incidental or inevitable corollaries for giving effect to the fiction. Hen’ble Supreme Court as far back as in 1953 in case of State of Bombay v. Pandurang, AIR 1953 SC 244 held as under:
“When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical concusion.”
This view of Hon’ble the Supreme Court has been subsequently followed in almost every case. Hon’ble Supreme Court also quoted with approval the following observations of Lord Asquith in case of East End and Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 (B) :
“If you are bidden to treat an imaginary state of affairs as real, you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must not cause or permit your imagination to boggle when it comes to the inevitable coroblaries of that state of affairs.”
15. But while interpreting a legal fiction, care should betaken that is so construing the legal fiction it is not to be extended beyond the purpose pose for which it has been created. See Dr. Bali Ram Waman Hirary v. Mr. Justice B. Lentin and Ors., AIR 1988 SC 2267 Para 29. Hon’ble Supreme Court in the above case has held that first part cannot be read in isolation, but must take its colour from the context in which it appears. It would not be correct to contend that the fiction created by the first part by the words shall be deemed to be a Civil Court’ is full and complete in itself. The purpose and object of the legal fiction created by the first part of Sub-section (4) is reflected in the second. A Commission of Inquiry is, therefore, fictionally a Civil Court for the limited purpose of proceeding Under Section 432 of old Code or Under Section 346 of the present Code. A fortiori, the legal fiction contained in Sub-section (5) of Section 5 which relates to the proceedings before the Commission is necessarily confined to offences that are punishable Under Sections 193 and 228 of the Indian Penal Code and does not extend beyond that.
16. If the principles narrated above ore kept in mind for correctly answering the questions posed to this Full Bench, it is necessary to ascertain the purpose behind enacting the legal action in Sub-rule (2) of Rule 49-A of the Rules and then to assume ail the necessary consequences and confine the operation of this legal fiction to the extent it is necessary to serve the purpose and not beyond that, in our opinion, behind enacting the legal fiction of a deemed suspension by an order of the appointing authority the purpose sought to be achieved is that whenever a Government servant is detained in custody for a period exceeding forty-eight hours, he should be deemed to be under suspension. The purpose is very plain, clear and simple. It is necessary that a Government servant in detention may not be allowed to discharge his duties and functions, may not exercise his power and he should rendered in capable of functioning as a Government servant. In cur opinion, the purpose is perfectly, justified. A Government servant cannot be allowed to function while in detention and under custody, whether the detention is on a criminal charge or otherwise. From the language used the stress appears to be on the period of detention which may be on a criminal charge or otherwise. The detention under Clause (b) of Sub-rule (2) is in the event of a conviction for an offence and when the Government employee is sentenced to a term of imprisonment exceeding 48 hours and he has not been forth-with dismissed or removed in consequence to such conviction. In such detention also he shall be deemed to be under suspension by an order of the appointing authority. Both under Clauses (a) and (b) of Sub-rule (2), the detention provided is under different stages and circumstances but it does not change the basic requirement that a Government servant if in detention should be deemed to have been placed under suspension by an order of the appointing authority. Both Clauses (e) and (b) deal with the detention. The contention of the learned Advocate General that the principle of distribution may be applied does not appear to be correct in the present case. Sub-rule (2) contains a legal fiction of deemed suspension of a Government employee while in detention and Clauses (2) and (b) provide for such detentions. They cannot be said to be two different alternatives. In Sub-rule (2) the expression ‘as the case may be’ has been used. It is implicit in the use of this phrase that one out of the various alternatives would apply to one out of the various situations and not otherwise. It cannot permit the application of the same alternative to both contingenies or vice-versa. The use of the expression ‘as the case may be’ was subject matter of consideration of Full Bench of Punjab High Court in case of Khan Chand Tiloka Ram v. State of Punjab and Ors. (Citation missing). In Paras, 38 and 39 of the aforesaid judgment it has been held as under :
“38. One of the basic principles of interpretation of statutes is that it must be presumed that every word used in a section of a legislative enactment has been inserted with a purpose and some meaning must be assigned to it. The intention of having used essly added surplus words or phrases should never be attributed to the Legislature. It has been authoritatively held by their Lordships of the Supreme Court in J. K. Cotton Spinning and Weaving Mills Co. Ltd. v, State of Uttar Pradesh, AIR 1961 SC 1170, that the Courts always presume, while interpreting statutes, that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.”
“39. Keeping the above principle in view we must assume that the Legislature has deliberately used the well-known expression “as the case may be” in the proviso in question with some definite purpose and intendment. This expression necessarily means that at least two situation are envisaged by the earlier part of the selection and two separate provisions or alternatives are provided in a later Dart of the same sub-section to one of which the one alternative and to the other of which the other is intended to bo applicable. The expression “as the case may be” cannot permit the application of the same alter-native to both the contingencies or vice-versa. It is implicit in the use of this phrase that one out of the various alternatives would apply to one out of the various situations and not otherwise. “One” here would of course include more than one contingencies for one set of circumstances in a given case.”
17. The deemed suspension by an order of the appointing authority thus is applicable to the detentions both under Clauses (a) and (b) which are nothing but one alternative under two different contingencies. Under Sub-rule (2), the phrase ‘as the case may be” continued to be placed under suspension by an order of appointing authority deals with a different alternative after the release of the Government servant from the custody or detention where the deemed suspension under the first part of Sub-rule (2) may be continued by an express order of the appointing authority. In Sub-rule (2) the phrase –as the case may be” contemplates two alternatives ; one deemed suspension by an order of the appointing authority and another alternative of continued suspension on release of the Government servant from detention. There appears no ambiguity or confusion. What we have said above is corroborated from Sub-rule (2) of Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, which reads as under :-
“(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority-
(a) With effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours ;
(b) With effect from the date of his conviction, if, in the event of conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.”
18. Sub-rule (2) of Rule 10 clearly demonstrates that the deemed suspension by an order of the appointing authority can cover both kinds of detention in custody whether on a criminal charge or otherwise and in the event of conviction the Government servant is sentenced to a term of imprisonment which exceeds beyond period of forty-eight hours. Rule 10 has been in force since 1965 and it has worked effectively against both kinds of detentions contemplated under Clauses (a) and (b). It may be noticed that Rule 10 of the Central Civil Services (C. C. and A.) Rules was framed in 1965 whereas Rule 40-A alongwith Sub-rules (2), (3), (4) and (5) etc. in the present form were substituted on 29-10-1968, published on 29-11-1968. It appears that in view of the legal position that an order of suspension cannot be passed with retrospective effect, difficulty may have been experienced in continuing the suspension from the date of detention after release of the Government servant from custody end, therefore, to cover such a situation also, Sub-rule (2) of Rule 49-A of the Rules was formulated in the present form. This question may be considered from a different angle also. Words “continued to be placed” used in Sub-rule (2) pre-suppose that the order of deemed suspension has already come in existence which may be continued further. However, in Clause (b) of Sub-rule (2), it is not necessary always that deemed suspension under the first part of Sub-rule (2) may have come in existence. The Government servant may not have been taken in custody at all during investigation, inquiry or trial and the conviction and sentence may have been awarded after conclusion of the trial. In such an event the circumstance provided in Clause (b) of Sub-rule (2) could not have been covered. This clearly demonstrates that deemed suspension by an order of the appointing authority covers both Clauses (a) and (b) and the alternative after the expression “as the case may be” may be applicable to the situation only when the Government servant is released from custody.
19. In our opinion, different Division Benches gave different interpretation of Sub-rule (2) only for the reason that the expression “as the case may be” and the alternative contemplated thereafter was not correctly appreciated. The logical conclusion is that whenever the Government servant is detained in custody, for that period, he should be deemed to be under suspension irrespective of the reason of detention whether it is on a criminal charge or otherwise or on being sentenced to a term of imprisonment on being convicted. However, this deemed suspension should be confined to the period or detention in custody only and it cannot be carried further after release from detention. If the appointing authority wants to continue this deemed suspension further, a specific order is required to be passed and for passing such an order, all the requirements provided in Sub-rules (1) and (1-A) of Rule 49-A, as the case may be, should be taken into account. In our considered opinion, the deemed suspension under Sub-rule (2) cannot be carried beyond the period of detention in custody as the basic purpose behind enacting Sub-rule (2) is to render the Government servant non-functional during the period he is deprived of the liberty and he shall be deemed to be under suspension for this period even in absence of any order passed by the appointing authority. One can well imagine the serious consequences if a Government servant is allowed to discharge his duties and functions from the place of his custody. Much has been argued on the basis of the fact that a Government servant may conceal the fact of his detention from the appointing authority and in such circumstances the deemed suspension contemplated under Sub-rule (2) cannot serve any purpose. However, in our opinion, the argument though appears to be attractive, is not acceptable. The deemed suspension will serve the purpose even though detention in custody of Government servant may not be in the knowledge of the appointing authority for some time as it shall save the interest of the Government whenever any order, action or omission of such Government servant done during the period of detention comes in question for consideration. All his actions during the period of detention shall be without authority and cannot bind the Government. Considering the aforesaid purpose, immediate knowledge is not very material. Further, a Government servant under the Conduct Rules is under obligation to inform his appointing authority or the employer about his detention and even if he has not informed, the law will assume all the consequences which flow from the deemed suspension on his detention in custody and one should not have any doubt about such consequences on an assumption of ignorance of appointing authority of such fact. There is yet a very strong reason for which it appears necessary that deemed suspension envisaged under Sub-rule (2) of Rule 49-A of the Rules should be limited to the period of detention only. The provision is very stringent and leaves no exception or discretion with the appointing authority. The deemed suspension of government employee is bound to follow if he is detained of government employee is bound to follow if he is detained in custody for more than forty eight hours, irrespective of the fact whether the detention is connected with his employment or not. The detention may be for any reason but the consequence of deemed suspension shall follow during the period of detention when the employes is not in a position to render any service. Thus, in our opinion, in order to save the Government employee from unnecessary harassment, it is necessary to limit this deemed suspension only for the period of detention.
20. If the purpose and object sought to be achieved behind enacting Sub-rule (2) of Rule 49-A of the Rules is kept in mind, it cannot be accepted that for giving effect to this legal fiction an order in writing by the appointing authority will be required. Such a view shall be in direct conflict with the purpose and object sought to be achieved by enacting Sub-rule (2). The appointing authority has been left with any choice in a situation when the Government servant is detained in custody. The law requires that he shall be deemed to be under suspension by an order of the appointing authority. The language used in Sub-rule (2) does not justify such an interpretation which would be contrary to legislative intent and defeat the very purpose for which the legal fiction has been created.
21. Serious criticism against the provisions of Sub-rule (2) has been that it contains an arbitrary, uncertain and unreasonable power to put a Government servant under suspension without considering the reason behind the detention in custody and other mitigating circumstances. Relying in case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 it has boon submitted that the provisions of Sub-rule (2) (a) have rightly been declared to be unconstitutional. However, in our opinion, the provisions contained in Sub-rule (2) of Rule 49-A including Clauses (a) and (b) do not suffer from any unconstitutionally. The rule in question has been enacted to deal with a special circumstance arising out of the detention of Government servant in custody. This circumstance by itself is sufficient for operation of the deeming clause. No application of mind is required. The provision is not uncertain or vague as the deemed suspension shall be operative only for the period of detention in custody. It should only exceed forty-eight hours. In Jagjit Singh’s case decided by learned Single Judge, the provisions of Clause (a) of Sub-rule (2) have been declared to be void and illegal being violative of Articles 14 and 21 of the Constitution of India only on the ground that the period of forty-eight hours is a period too short for a Government servant to obtain bail from the Court. In our opinion, the period of forty-eight hours has been provided in Clauses (a) and (b) for certain good and valid reasons and not with the idea to provide time to be Government servant to obtain bail from the Court. The legislative authority has used the words ‘detention in custody’. It is not a detention by arrest or otherwise. ‘Detention in custody’ clearly denotes a judicial or legal custody. Forty-eight hours’ period is maximum period for a detention followed by arrest to be converted into a judicial custody. Article 22 of the Constitution provides that every person who is arrested and detained in custody shall be produced before the present Magistrate within a period of twenty-four hours of such arrest excluding time necessary for journey from the place of arrest to the court of the Magistrate and no such person shall be detained in a custody beyond the said period without the authority of the Magistrate. Forty-eight hours period has been fixed keeping in mind the aforesaid requirement and it is the maximum period during which the detention in custody followed by arrest may get the authorisation by an order of the Magistrate. The intention appears; to be that the deemed suspension shall not come into existence immediately on arrest by police but it shall operate when it has been given a judicial sanction. Similarly, Section 57, Cr. P. C. provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all circumstances of the reasonable and such period, shall not in the absence of specific order of the Magistrate Under Section 167 exceeds twenty-four hours exclusively of the time necessary in travelling from the place of arrest to the Magistrate’s court. Thus, the maximum period of forty-eight hours has been fixed keeping in view the aforesaid requirements. In case a Government fervent is arrest and brought before the Magistrate but he is released instantly and is not remanded to judicial custody, the, provisions of Sub-rule (2) will not come into play at all. The judicial remand provided Under Sections 167 and 309 of Code of Criminal Procedure presupposes a conscious order of the Court justifying the detention in custody of the accused who may be a Government servant also, during the period of investigation, inquiry and trial. The period of forty-eight hours thus has been erroneously connected with the right of a Government servant to obtain bail from the Court. The bail may take any time longer or shorter it may not be granted by the Court at all but it will not have any relevance so far as legal fiction created by Sub-rule (2) providing a deemed suspension by an order of the appointing authority for the period of detention in custody is concerned.
22. The provisions contained in Sub-rule (2) have also been assailed as unconstitutional on his ground that the same suffer from vide of arbitrariness. In our opinion, this criticism has also no substance. The deemed suspension of a Government servant by a legal fiction is a necessity as discussed above but it is not correct to say that the Government servant has been left remediless once a deemed suspension has come into existence. Sub-rule (6) (2)of Rule 49-A clearly provides that any suspension ordered or deemed to have been ordered or to have continued in force under this Rule shall continue to remain in force until it is modified or revoked by the authority specified in Sub-rule (1). Thus Government servant who has been deemed to be under suspension by an order of the appointing authority for the period he was under detention in custody, can approach the appointing authority and convince him for modifying or revoking the order and on such approach being made, the appointing authority may take into account all the facts and circumstances which led to his detention in custody and gave rise to the deemed suspension and then the appointing authority may pass appropriate order modifying or revoking the order of suspension. Thus, the Government servant is not remediless. On the basis of the language used in Sub-rule (5) (a), it has been argued that a deemed suspension once comes into existence, shall continue to remain in-force until it is modified or revoked by the appointing authority and the Government servant shall continue under suspension even after his release from the custody. In our opinion, under Sub-rule (5)(a) suspension deemed to have been ordered shall continue to remain in force does not mean that the actual suspension shall also continue after release from custody. However, the deemed suspension shall remain in force for other purposes which may include all the consequences which flow from on order of suspension of a Government servant. From the combined reading of Sub-rule (2) and Clauses (a) and (b) and sub-rule (6)(a) of Rule 40-A, the passible and reasonable conclusion is that deemed suspension shall be operative only for the period of custody and not beyond that. However, it shall remain in force for other purposes which flow from the order of suspention. In our opinion, such a harmonious interpretation can be safely given to the provisions contained in Sub-rule (5)(a) without doing any violence to the purpose and object and the legislative intent behind the aforesaid provisions.
23. Hon’ble Supreme Court in case of Nelson Motis v. Union of India and another, (1992) 4 SCC 711 while interpreting Sub-rule (4) of Rule 10 of Central Civil Services (C.C.A.) Rules, 1965, in Para 8 has observed as under :
“The language of Sub-rule (4) of Rule 10 is absolutely clear and does not permit any artificial rule of interpretation to be applied. It is well established that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably suspectible to only one meaning, it cannot be construed by giving effect to that meaning, irrespective of consequences. The language of the sub-rule here is precise and unambigous and therefore, has to be understood in the natural and ordinary sense……”
24. We have already discussed in detail that the provisions contained in sub-rule (2.) of Rule 49-A are clear and unambigous. In the case of Ratan Chand Hira Chand v. Akar Newaz Jung, (1991) 3 SCC 67 Hon’ble Supreme Court has held as under :
“……The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicity delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society. So long as the courts keep themselves tetherd to the those of the society and do not travel off its course, so long as they attempt to furnish the fell necessities of the time and do not refurbish them, their role in this respect has to be welcomed.”
25. Hon’ble Supreme Court in case of State of Andhra Pradesh and Ors. etc. J. Mc, Dowell and Co. and Ors. etc., JT 1996 (3) 679 (supra) has held as under:
“No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom……”
26. If the aforesaid principles laid down by Hon’ble Supreme Court are kept in mind, the provisions contained in Sub-rule (2) (a) cannot be held to be null and void. Rule 49-A has been framed in exercise of the powers under Article 309 of the Constitution of India and the Rule has a definite purpose to serve.
27. We have considered all the cases cited by the learned counsel for parties. However, we do not find anything on which basis the view we have expressed above may be doubted or shaken. Our conclusions and answer to the questions referred to us are as under:-
(A) Sub-Clause (a) of Sub-rule (2) of Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930, as applicable in Uttar Pradesh, is not violative of Articles 14 and 21 of the Constitution of India as held in case of Jagjit Singh v. State of U. P., reported in (1996) 1 UPLBEC 405 and the judgment is here by over-ruled.
(B) The legal fiction envisaged under Sub-rule (2) (a) and (b) of Rule 49-A shall come into play and a deemed suspension by an order of the appointing authority shall came into existence if the Government servant is detained in custody for more than forty-eight hours even in absence of any order in writing passed by the appointing authority.
(C) The deemed suspension provided under Sub-rule (2) of Rule 49-A shall be confined to the period of detention in custody and not beyond that.
(D) The deemed suspension by an order of the appointing authority under the legal fiction provided in Sub-rule (2) may be continued after release by the appointing authority by passing an express order taking into account the guidelines provided in other sub-rule of Rule 49-A according to the facts and circumstances of the case.
(E) The deemed suspension under Sub-rule (2) of Rule 49-A may be modified or revoked by the appointing authority on a representation made by the Government servant which shall be considered and decided taking into consideration the guidelines provided in Sub-rules (1) and (1-A) of Rule 49-A.
28. Consequently, the views expressed by the three Division Benches noticed in this order shall stand over-ruled to the extent they are contrary to the view expressed by us in the aforesaid conclusions.
Let the record of the Special Appeal and the writ petition be placed before the respective Benches for deciding on merits in the light of the position of law with regard to Sub-rule (2) of Rule 49-A mentioned in this judgment.