PETITIONER: MAHENDER SINGH Vs. RESPONDENT: UNION OF INDIA AND ANR DATE OF JUDGMENT02/08/1991 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAMASWAMI, V. (J) II YOGESHWAR DAYAL (J) CITATION: 1991 SCR (3) 330 1991 SCC Supl. (2) 127 JT 1991 (3) 462 1991 SCALE (2)292 ACT: Service Law: Central Civil Services (Classification, Control and Appeal) Rules, 1965 Rule 10(4)--Scope of--Services of employee terminated by a simple termination order under Rule 5(1) of the CCS (Temporary Service) Rules, 1965---Termination order set aside by Tribunal--Retrospec- tive suspension from the date of original order of termina- tion--Whether justified. HEADNOTE: The appellant, a cash clerk in the establishment of Delhi Milk Scheme, was placed under suspension under Rule 10(2) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, pending investigation into a crimi- nal case, connected with the forgery of a cheque, in which he was arrayed as an accused. Subsequently, his services were terminated under Rule 5(1) of the Central Civil Serv- ices (Temporary Service) Rules, 1965. Though he was acquit- ted in the criminal case, he was not re-instated. However, the Central Administrative Tribunal set aside the termina- tion order and directed that the appellant would continue to be under suspension from the original date of termination of service, and that it would be open to the competent authori- ty, to revoke his suspension and re-instate him in service or continue him under suspension, if it decided to initiate disciplinary proceedings against him. Pursuant to the decision of the Tribunal, the Management passed an order under Rule 10(4) of the Rules placing the appellant under suspension from the date of original order of termination and also directed that there should be fur- ther enquiry against the appellant. Allowing the appeal preferred by the appellant and modifying the Tribunal's order, HELD: 1.1 There are three requirements for the applica- tion of Rule 10(4) of the Central Civil Services (Classifi- cation, Control and Appeal) Rules, 1965. These are (i) the Government servant is dismissed, removed or compulsorily retired as a measure of penalty; (ii) the said 331 penalty is set aside or declared or rendered void by a decision of a Court of Law; and (iii) the disciplinary authority decides to hold a further inquiry against the Government servant on the allegations on which the original order of penalty was imposed. [334F-G] 1.2 In the instant case, the original order of termina- tion was not passed against the appellant as a measure of punishment. It was a 'simpliciter termination' under Rule 5(1) of the CCS (Temporary Service) Rules, 1965. The Tribu- nal has set aside that order on the ground that it amounts to punishment and the order of punishment could not have been made without holding an inquiry. But that is not the same thing to state that the Management made an order termi- nating the services by way of penalty. It treated the said order as a simpliciter discharge. Hence Rule 10(4) has no application. Besides, there was no question of the Manage- ment deciding to hold a further inquiry, since there was no earlier inquiry against the appellant and it would be misno- mer to call it a further enquiry as contemplated under Rule 10(4). [335B-C] 1.3 Thus, the power to place a delinquent officer under suspension from the date of the original order of dismissal, removal or compulsory retirement from service would be available provided the original order was made by way of penalty and that order has been set aside by a Court of Law. Since there was no inquiry leading to the removal of the appellant in the first instance, the decision to hold fresh inquiry does not attract Rule 10(4). The retrospective suspension of the appellant is, therefore, unjustified and without authority of law. However the order of suspension would operate prospectively and the appellant would be entitled to re-instatement with all back wages till that day since the original order of termination has been set aside by the Tribunal. The Tribunal's order is modified according- ly. [335D-G] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1821 of
1991.
From the Judgment and Order dated 17 4. 1990 of the
Central Administrative Tribunal, Delhi in R.A. No. 117/88 in
T.A. No. 351 of 1986.
O.P. Saxena and Mukul Gupta for the Appellant.
J.D. Jain, Kailash Vasudev, Ms. Sushma Suri and S.N.
Terdal for the Respondents.
332
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. This appeal is from an order of
the Central Administrative Tribunal, New Delhi and concerns
with the scope of Rule 10(4) of the Central Civil Service
(CCA) Rules, 1965 (‘the Rules’)
The facts leading to the appeal are these: The appellant
was a cash clerk in the establishment of Delhi Milk Scheme,
New Delhi. There was some criminal case connected with the
forgery of a cheque in which the appellant was arrayed as an
accused. Pending investigation of the criminal case, he was
placed under suspension. The order of suspension was made on
March 27, 1976 under Rule 10(2) of the Rules. On January 10,
1976 his services were terminated under Rule 5(1) of the
Central Civil Services (Temporary Service) Rules, 1965. On
March 7, 1980, the appellant was acquitted in the criminal
case. On January 5, 1981 the appellant filed a civil suit in
the District Court, New Delhi, challenging the order of
termination of his services. The suit was transferred to the
Central Administrative Tribunal for disposal. The Tribunal
has, by its judgment dated September 5, 1988 set aside the
termination order with the following conditions:
“(i) The impugned order of termination dated
10.1.1978 is quashed. Consequently, status quo
ante as in regard to applicant being under
suspension will continue from 10.1.1978.
(ii) It will be open to the competent authori-
ty to take a final decision on the continuance
or otherwise of the suspension in the light of
the judgment of Chief Judicial Magistrate
dated 7.3.80 in case No. 57/2. It will be open
to the competent authority to revoke the order
of suspension and reinstate the plaintiff into
service as cash clerk. In that event, the pay
and allowances of the plaintiff during the
period of his actual suspension from 27.3.
1976 to 10.1.78 and deemed suspension thereaf-
ter shall be regulated in accordance with the
provisions of F.R. 54-B. Necessary adjust-
ments, if any, should be made or in regard to
the subsistence allowance already paid to him.
The defendants shall also consider and decide
whether the period of actual and deemed sus-
pension shall be treated as a period spent on
duty or not.
333
(iii) It will also be open to the competent
authority, if so advised, to continue the
plaintiff on suspension if it is decided to
initiate disciplinary proceedings against him
based on his conduct which led to his prosecu-
tion before the criminal court. The discipli-
nary proceedings if initiated should be com-
pleted within a period of six months from the
date of communication of this order.
(iv) The competent authority shall take appro-
priate decision as regards (ii) and (iii)
above within a period of two months from the
date of communication of this order.”
Pursuant to the decision of the Tribunal management made
an order dated November 10, 1988 under Rule 10(4) of the
Rules placing the petitioner under suspension w.e.f. January
10, 1978. The appellant shall be deemed to have been sus-
pended from the date of the original order of termination.
The management also directed that there should be further
enquiry’ against the appellant. The relevant portion of the
order dated November 10, 1988 reads:
“AND whereas the undersigned on a considera-
tion of the circumstances of the case, has
also decided that a further enquiry should be
held under the provision of CCS(CCA) Rules,
1965 against the said Shri Mohinder Singh, Ex.
Cash Clerk on the allegation which led to his
termination of service.
NOW THEREFORE the undersigned hereby:-
(i) set aside the order of termination of
services of Shri Mohinder Singh, Ex. Cash
Clerk
(ii) directs that further enquiry should be
held under the provisions of CCS(CCA) Rules,
1965 against Shri Mohinder Singh on the alle-
gations of misappropriation of Govt. Money
which led to the termination of service.
(iii) directs that the said Shri Mohinder
Singh, Ex. Cash Clerk shall under sub-rule 4
of Rule 10 of the CCS(CCA) Rules, 1965 be
deemed to have been placed under suspension
w.e.f. 10.1. 1978 and shall continue to remain
under suspension until further orders.
(Baldev Chand)
Disciplinary Authority
Dy. General Manager (A)”
334
After holding the enquiry the appellant was again dis-
missed from service. That order was made on December 1,
1989. It is said that the dismissal has been challenged by
the appellant before the Tribunal.
From the above narration of facts it will be seen that
the Tribunal while setting aside the termination order has
directed that the appellant shall continue in suspension
from January 10, 1978. The management while deciding to hold
further enquiry has also directed that the appellant shall
be deemed to have been placed under suspension w.e.f. Janu-
ary 10, 1978. The management made this order under Rule
10(4) which reads as follows:
“Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon a Government servant is set aside or
declared or rendered void in consequence of or
by a decision of a court of law and the disci-
plinary authority on a consideration of the
circumstances of the case, decides to hold a
further inquiry against him on the allegations
on which the penalty of dismissal, removal or
compulsory retirement was originally imposed,
the Government servant shall be deemed to have
been placed under suspension by the Appointing
Authority from the date of the original order
of dismissal, removal or compulsory retirement
and shall continue to remain under suspension
until further orders:
Provided that no such further inquiry
shall be ordered unless it is intended to meet
a situation where the Court has passed an
order purely on technical grounds without
going into the merits of the case.”
There are three requirements for the application of Rule
10(4); (i) The Government servant is dismissed, removed or
compulsorily retired as a measure of penalty; (ii) the
penalty of dismissal, removal or compulsory retirement is
set aside or declared or rendered void by a decision of a
Court of Law; (iii) The disciplinary authority decides to
hold a further inquiry against the Government servant on the
allegations on which the original order of penalty was
imposed. If these three requirements are satisfied then the
Government servant ,shall be deemed to have been placed
under suspension by the appointing authority from the date
of original order of penalty of dismissal, removal or com-
pulsory retirements and he shall continue to remain under
suspension until further orders.
335
The order of the Tribunal and the management as to the
retrospective suspension of the appellant cannot be sus-
tained under Rule 10(4) of the Rules. It may be relevant to
remember that the original order of termination was not
passed against the appellant as a measure of punishment. It
was a ‘simpliciter termination’ of the appellants’ service
under Rule 5(1) of the CCS (Temporary Service) Rules 1965.
The Tribunal has set aside that order on the ground that it
amounts to punishment and the order of punishment could not
have been made without holding an inquiry against the appel-
lant. But that is not the same thing to state that the
management made an order terminating the services of the
appellant by way of penalty. The management treated the said
order as a simpliciter discharge. Rule 10(4) therefore, has
no application to the case of the appellant.
Secondly, it would be misnomer to call it a further
inquiry as contemplated under Rule 10(4). There was no
question of the management deciding to hold a further in-
quiry since there was no earlier inquiry against the appel-
lant.
The power to place delinquent officer under suspension
from the date of the original order of dismissal, removal or
compulsory retirement from service would be available pro-
vided if the original order of dismissal, removal or compul-
sory retirement from service was made by way of penalty and
that order has been set aside by a Court of law. Since there
was no inquiry leading to the removal of the appellant in
the first instance, the decision to hold fresh inquiry does
not attract Rule 10(4). The retrospective suspension of the
appellant is therefore, unjustified and without authority of
law.
However, it may be stated that the order of suspension
dated November 10, 1988 would operate prospectively and the
appellant would be entitled to reinstatement with all back
wages till that day since the original order of termination
has been set aside by the Tribunal.
The appeal is accordingly allowed modifying the impugned
order. In the circumstances of the case, however, we make no
order as to costs.
N.P.V. Appeal allowed.
336