MAHENDER SINGHversusUNION OF INDIA AND ANR

A                         MAHENDER SINGH
                                 v.
                      UNION OF INDIA AND ANR

                              AUGUST 2, 1991                                        •
B       [K. JAGANNATHA SHETTY, V. RAMASWAMI AND
                                                                              '
                  YOGESHWAR DAYAL, JJ.]

          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
c   (Temporary Service) Rules, 1965-Termination order set aside by
    Tribunal-Retrospe.ctive suspensii>n from the date of original order of    .-
    termination-Whether justified,

           The appellant, a cash derk in the establishment of Delhi Milk
    Scheme, was placed under suspension under Rule 10(2) of the Central
D   Civil Service (Classification, Control and Appeal) Rules, 1965, pending
    investigation into a criminal case, connected with the forgery of a
    cheque, in which he was arrayed as an accused. Subsequently, his
    services were terminated undeic Rule 5(1) of the Central Civil Services
    (Temporary Service) Rules, 1965. Though he was acquitted in the
    criminal case, he was not re-instated. However, the Central Adminis-
                                                                               ..
E   trative Tribunal set aside the termination 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
    authority, to revoke his suspension and re-instate him in service or
    continue him under suspension, if it decided to initiate disciplinary
    proceedings against him.                                                  •
F
          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 further enquiry against the appellant.

G        Allowing the appeal preferred by the appellant and modifying the
    Tribunal's order,
                                                                              ~
         HELD: 1.1 There are tb.ree requirements for the application of
    Rule 10(4) of the Ceritrai Civil Services (Classification, Control and
    Appeal) Rules, 1965. These are (i) the Government servant is dismissed,
H   removed or compulsorily retired as a me~sure of penalty; (ii) the said

                                      330
                       MAHENDER SINGH v. U.0.1.                         331

penalty is set aside or declared or rendered void by a decision of a Court
                                                                               A
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 I

      1.2 In the instant case, the original order of termination was not
passed against the appellant as a measure of punishment. It was a              B
'simpliciter termination' 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 punishnlent 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 terminating
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             c
no question of the Management deciding to hold a further inquiry,
since there was no earlier inquiry against the appellant and it would
be misnomer to call it a further enquiry as contemplated under Rule
10(4). [335B-C I
                                                                               D
       1.3 Thus, the power to place a delinquent officer under suspen-
sion from the date of the original order of dismissal, removal or com-
pulsory retirement from service would be available provided the origi-
nal order was made b:' 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   E
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 h) the Tribunal. The
Tribunal's order is modified accordingly. [3350-G I                            F

      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           G
1986.

      O.P. Saxena and fylukul Gupta for the Appellant.

      J.D. Jain, Kailash Vasudev, Ms. Sushma Suri and S.N. Terdal
for the Respondents.                                                           H
    332                   SUPREME COURT REPORTS              (1991] 3 S.C.R.

A         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')
B
          The fac:ts 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 investiga-
    tion of the criminal case, he was placed under suspension. The order of
c 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( I) 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, chall~nging the order of termination of his services. The
D suit was transferred to the Central Administrative Tribunal for dis-
    posal. 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
E               applicant being under suspension will continue from
                10.1.1978.

                (ii) It will be open to the competent authority to take a
                final decision. on the continuance or otherwise of the
                suspension in the light of the judgment of Chief Judicial
f               Magistrate dated 7.3.80 in case No. 57/2. It will be open to
                the competent authbrilly 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 thereafter shall be regulated in
G               accordance with the provisions of F.R. 54-B. Necessary
                adjustments, 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 suspension shall be treal"C! as a period spent
                on duty or not.
H
                       MAHENDER SINGH v. U.0.I. (SHEITY, J.]                333

                   (iii) It will also be open to the competent authority, if so
                                                                                   A
                   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 prosecution before
                   the criminal court. The disciplinary proceedings if initiated
                   should be completed within a period of six months from the
                   date of communication of this order.                            B
                   (iv) The competent authority shall take appropriate deci-
                   sion 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
                                                                                   c
        shall be deemed to have been suspended 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:
                                                                                   D
                   " AND whereas the undersigned on a consideration of the
                   circumstances of the case, has also decided that a further
    j
                   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.
                                                                                   E
                         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
                                                                                   F
                   provisions of CCS(CCA) Rules, 1965 against Shri Mohin-
                   der Singh ·on the allegations 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)
                                                                                   G
                   Rules, 1965 be deemed to have been placed under suspen-
                   sion w.e.f. 10.1.1978 and shall continue to remain under
                   suspension until further orders.

                                                              (Baldev Chand)
                                                       Disciplinary Authority      H
                                                   Dy. General Manager (A)"
    334                       SUPREME COURT REPORTS              [1991) 3 S.C.R.

A         After holding the enquiry the appellant was again dismissed 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 appel-
B lant shall continue in suspension from January 10, 1978. The manage-
   ment while deciding to hold further enquiry has also directed that the
 · appellant shall be deemed to have been placed under suspension w.e.f.
   January 10, 1978. The management made this order under Rule 10(4)
   which reads as follows:

                  , "Where a penalty of dismissal, removal or compulsory
c                   retirement from service imposed upon a Government
                    servant is set aside or declared or rendered void in conse-
          . '.-     quence of or by a decision of a court of law and the discipli-
                    nary authority on a consideration of the circumstances of
                    the case, decides to hold a further inquiry against him on
D                   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 com-
                  pulsory retirement and shall continue to remain under
E                 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.··
F
          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
G   hold a further inquiry against the Government servant on the allega-
    tions 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 compulsory retirements and he shall continue to remain
H   under suspension until further orders.
                       MAHENDER SINGH v. U.O.I. [SHEITY, J.[               335

              The order of the Tribunal and the management as to the              A
        retrospective suspension of the appellant cannot be sustained 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 appel-
        lants' service under Rule 5(1) of the CCS (Temporary Service) Rules
        1965. The Tribunal has set aside that order on the ground that it         B
        amounts to punishment and the order of punishment could not have
        been made without holding an inquiry against the appellant. 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 t~e said order as a simpliciter discharge. Rule
        10(4) therefore, has no application to the case of the appellant.         c
              Secondly, it would be misnomer to call it a furth1 inquiry as
        contemplated under Rule 10(4). There was no question of the manage-
        ment deciding to hold a further inquiry since there was no earlier
        inquiry against the appellant.
                                                                                  D
              The power to place delinquent officer under suspension from the
        date of the original order of dismissal, removal or compulsory retire-
    J
        ment from service would be available provided if the original order of
        dismissal, removal or compulsory 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     E
        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           F
        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 G
    t   to costs.

        N.P.V.                                                Appeal allowed.