Om Prakash Gupta v. The State of Uttar Pradesh

IMAM J.-This is an appeal against the decision of the Allahabad High Court affirming the decision of the Civil Judge of Allahabad.

The appellant was appointed to the United Pri>- vinces Civil (Executive) Service in 1940 and in due course was confirmed. He was posted to various sta-tions and in 1944 he was posted to Lakhimpur Kheri, where he joined ~n July, 1944. On the 23rd August, 1944, the Deputy Commissioner of Lakhimpur Kheri received a telegram from Government informing him that the appellant was suspended forthwith pending inquiry into his conduct and that a copy of the tele-gram was forwarded to the appellant for information.

On the 26th August, 1944, the Deputy Commissioner wrote to the appellant that he was required to appear before the Commissioner of the Lucknow Division on the 28th August, 1944. to answer the charges, a copy of which would be forwarded to him. He further in-formed the appellant that he could treat his case under rule 55 of the Civil Services {Classification Con-trol and Appeal) Rules of 1930, published in the United Provinces Gazette of June 28, 1930. The appellant was further informed that in view of his suspension his leave application was cancelled. On the 28th August, 1944, the appellant appeared before the Com-missioner at Lucknow and protested against the pri>- cedure adopted by him for the inquiry. The Commis-7-83 S. C. India/59.

1955 sioner having completed the inquiry on the 1st Om FTakash G•Pta September, 1944, submitted his report to Government.

v, The Commissioner, however, recommenced the inquiry The State of Uttar

Pradesh on September 11, 1944, and after completing the in-

J, quiry submitted the papers to Government on the 30th Imam September, 1944. The Government of the United

Provinces by an order dated the 25th November, 1944, dismissed the appellant from the United Provinces Civil (Executive) Service. This order was served on the appellant on the 1st December, 1944, and he sub-mitted a memorial to the Governor on August 7, 1945, which was rejected on the 28th May, 1947. During the period of suspension the appellant was paid sub-sistence allowance at the rate of one-fourth of his salary which was then Rs. 310 per month.

The appellant gave notice under section 80 of the Code of Civil Procedure of h.is intention to bring a suit and on the 2nd Janua·y, 1948, he filed his suit. He asked for a declaration that the order of dismissal was wrongful, illegal, void and inoperative ~nd that he still continued to be a member of the Civil Service ontitled to full pay with all increments as they fell due. He prayed for a decree for ,recovery of arrears of salary amounting to Rs. 16,810-8-0 less subsistence allowance already drawn from August 24, 1944, to December 31, 1947. In the alternative he prayed for a declaration that the order of dismissal was wrong-ful and that a decree to the extent of Rs. 1,20,000 with interest by way of damages may be passed in his favour. He paid the requisite court fee on the valuation of Rs. 1,20,000. This alternative claim was deleted from the plaint as a result of an amendment, having regard to a rnbsequent decision of the Privy Council* which held that a person illegally dismissed from Government service could only get a declaration that the order was inoperative and that he still con-tinued to be a member of the Service.

The appellant asked for refund of the extra court fee paid which was rejected by the Civil Judge by a separate order. The Civil Judge, however, decreed

*High CommiJJiorttr for India and H;,gh Commissioner for PakistaN Y. J. ,\f. Lal-. [1948] L.R. 75 I.A .. ~~·"· the appellant's suit in part declaring that the order 1955 dismissing him from service was illegal and that he Om Prakash Gupla still continued to be a member of the United Provinces v. Civil (Executive) Service. The Civil Judge, however, TM State of Utlar Pradesh declined to pass a decree for arrears of salary.

Against the decision of the Civil Judge the appel-Imam]. lant appealed to the High Court and his appeal was dismissed. The respondent did not appeal against the decision of the Civil Judge or file a cross-objection.

The appeal in the High Court proceeded on the basis that the order of dismissal made against the appel-lant was illegal and that it was rightly declared that he continued to be a member of the service of the United Provinces Civil (Executive) Service. The only two questions which were considered and decided by the High Court were as to whether the appellant was entitled to a decree for arrears of salary and a refund of the excess court fee paid by him. Both these ques-tions were decided against the appellant by the High Court which subsequently gave him a certificate for leave to appeal to this court.

It may be stated at once that in view of the ded-sion of this court in The State of Bihar v. Abdul Majid(1) there can be no question now that the ap-pellant had the right to institute a suit for recovery of arrears of salary as he was dismissed illegally.· It is unnecessary, therefore, to refer to the elaborate discussion of the law in this respect to be found in the judgment of the learned Judges of the High Court.

When this appeal came on for hearing before this court and the appellant had been heard, the Attorney-General in the course of his argument had contended that the order of suspension of August 1944 subsisted although the order of dismissal had been declared illegal by the Civil Judge and all that the appellant was entitled to was subsistence allowance and not salary so long as the order of suspension remained effective. This plea was not taken in the written statement filed in the trial court, nor was there any issue framed in this respect. The Attorney-General !955 asked for time to ·file an additional written statement Om Prakash Gupta on behalf of.' the respondent. This court allowed time

v. · for the respondent to <lo ·So and the appellant was Thi SlaU of Uttar also given time to reply to . any additional written state-

Prad<sh

J. ment filed 'on behalf of the respondent. The respon-Imam dent filed the additional written statement and the

appellant filed his reply to it. Thereafter the appeal came on for hearing again and the learned Advocate for the appellant made his submissions on the addi-0tional written statement and the Attorney-General replied to the same.

So far as the . payment of excess court fee is concerned, the learned. Advocate for the appellant did riot urge this point in his opening argument but urged it in reply after the Attorney-General had concluded his argument. Apart from the ques-tion as to whether the Advocate can be allowed to urge a point like this in reply when no submission had been made by him ·in his opening, it seems there is no merit in the submission made by the Advocate. The court fee had been paid on Rs. 1,20,000 ·which was claimed as damages. At the · time the suit was instituted" the law as then understood permitted such .a claim to be made. The decision of the Privy Coun-cil, however, made it clear that no such claim could be made and all that ·a Government servant could ask for was a declaration that the order of dismissal was · illegal and that he still continued to he a member of • the Civil Service. The decision of the Privy Council

clarifying the position could not be a ground for re- . fund of court fee when at the time it was paid it was in accordance .with the law as then understood. Indeed the appellant did .. not appeal or file an application 'against the order of the Civil Judge refusing to pass Lan order.of 'refund. In the' High Court he did not i ask 1•foi this relief on 'the basis of any statutory provision. ;lHe invoked ·. the inherent powers of the High Court. bThe: .. Court Fees. Act contains,, certain provisions for irefund of court ·fee paid by a party but admittedly the present case is not covered by any of those provi-1 sions. It · seems, · therefore, that the High Court in the circumstances of the present case rightly refused to order a refund of the excess court fee paid by the 1955 appellant. .Jt also does not appear that the Civil_ Om Prakash Gupta Judge acted illegally in refusing to order a refund. v.

On the additional written statement filed in this Till State of Uttar Praduh Court by the respondent a question has arisen whe-ther · the order of suspension was valid and during the Imam]. period it was in force the appellant could recover arrears of salary. The learned Advocate for the appellant contended that an order of suspension is a penalty under rule 49 of the Classification Rules and it was against all sense of natural justice to impose a penalty upon a Government servant pending an in-quiry against him under rule 55 of the said rules.

An order imposing the penalty of suspension was an appealable order under rule 56 of the Classification Rules and under rule 59 of the said rules, an ap-pellate authority was bound to consider whether the facts on which the penalty was imposed had been established and whether those facts disclosed sufficient grounds for imposing such a penalty. Rule 54 of the Fundamental Rules authorises a rev1smg or an appellate authority, when it finds that the penalty of suspension was unjustified or not wholly justified, to make an order granting to the Government servant his full pay and any allowance to which he was en-titled if he was honourably acquitted and in other cases such proportion of pay and allowances as it may prescribe. The penalty of suspension, it was urged involved serious loss in the matter of salary and allowances and to impose this penalty pending an inquiry was to prejudge the case against a Govern-me9-t servant and in effect to make his right of appeal a meaningless remedy. It was pointed out that in some of the rules framed by a Government or quasi-Government authority the penalty of suspension pending an inquiry was specifically provided for, such as rule 95 of the Bihar and Orissa Service Code re-ferred to in Abdul Majid's case and rule 1711 of the Indian Railway Establishment Code. On behalf of the appellant reference was also made to certain de-cisions to the effect that as between master and ser-vant, the master had no power of suspension unless

398 SUPREME COURT REPo;R.TS 119.55]

!955 there was· an e;rrpress term to that effect in the con- ·Om PrakashGupaJ tract between them.

.v. The Attorney-General conceded that apart from the The Stat, of UUar

had<sh Classification Rules and the Fundamental Rules he

J. was not aware of any other rules under which the lmam

penalty of suspension could be imposed upon a Gov-ernment servant. He also conceded that under the Classification Rules an order of suspension was a penalty. He further conceded that as between master and servant the former had no power of suspension unless the terms of the contract between them per-mitted it or a statute or a rule provided for it but his principle, he said, did not apply to a person in the service of the Crown in India. He, however, con-tended that under rule 49 of the Classification Rules a penalty of suspension could be imposed pending an inquiry. There was nothing in the rule itself which enjoined that a penalty could only be imposed at the conclusion of an inquiry. The penalty could be im-posed for good and sufficient reasons which may be based on materials already existing pending an in-quiry. After the inquiry there may be the imposition of a severer penalty or a definite period of suspension may be fixed or there may be cancellation of the order of suspension. No doubt there was a right of appeal against an order imposing a penalty of smpension pending an inquiry but the provisions of rule ~4 of the Fundamental Rules did not necessarily lead to the conclusion that the penalty of suspension could only be imposed after an inquiry. Clause (a) of the said rule might contemplate a case where the penalty had been impo».rl after an inquiry but clause (b) could cover a case where the penalty had been imposed pending an inquiry. In the present case, he said, the1e was no contravention of any principle of natural jnstice as the appellant had an opportunity of ex-plaining the accusation marle against him. The letter of the Commissioner of Lucknow Division with its annexure, marked Exhibit A in the trial court, clearly showed that the Deputy Commissioner, Lakhimpur Kheri had recorded statements of persons with ref-erence to three cases and the appellant saw him in connection therewith. He admitted the facts but 1955 tried to explain them. He, however, declined to give Om Prakash Guf11a his ~tatement in writing. The order of suspension v. made against him was based on materials of which he The State of Uttar Pradesh was fully aware.

Imam]. In the alternative the Attorney-General urged that in the year 1944 the appellant was a member of the Civil Service of the Crown in India holding office during the pleasure of the Crown. There was, there-fore, inherent power in the Crown and its representa-tive to pass an order of suspension against the appel-lant pending an inquiry. The Classification Rules and Fundam_s:ntal Rules were merely directions for general guidance and they did not constitute a contract bet-ween the Crown and its servants. For this propositi_on he referred to the observations of Lord Hobhouse in the case of Shenton v. Smith( 1 ). He also relied upon the following observations of Lord Roche in the case of R. Venkata Rao v. Secretary of State for India in Council('). "Section 96-B in express terms states that office is held during pleasure. There is, there-fore, no need for the implication of this i:erm and no room for its exclusion. The argument for a limited and special kind of employment . during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far-reach-ing to commend itself for acceptance. The rules are· manifold in number and most minute in particularity, and are all capable of change .................. Incon-venience is ·not a final consid4'.ration in a matter of construction, but it is at least worthy of considera-tion, and it can hardly be doubted that the suggested.

procedure of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion".

In the courts below the principal question for con-sideration was whether the appellant could recover arrears of salary having been illegally dismissed. It was not pleaded that the order of suspension V.'as

(1) (18951 A.C. 22~.

('' J •. R. li4 I .A. 55· 1955 valid and during the period it was in force the appel-Om Prakash Gupta lant could not recover arrears of salary and no specific

v. issue was framed in this respect. '- If the decision of Tk Stal• of Uttar

Praduh• this court in Abdttl Majid's case had been available to

f the courts below, they would have held that the appel-Imam lant was entitled to recover arrears of salary when he

had been illegally dismissed and they would have had further to decide whether the order of suspension was valid and during 'the period it was in force the appel-lant could recover arrears of salary. On the additional written statement filed ,by the respondent in this court, the submissions of the Advocate for the appel-lant _ and. the Attorney General would require exami-nation and_ it might have been necessary to consider whether the case should 'not be remanded to the court of trial. It is unnecessary, however,. to record a deci-sion ' on.these' . submissions . having . regard to · the atti-tude adopted . by the Advocate for the appellant. He objected to the case being ' remanded as such a course would involve the ·appellant· in heavy · expenditure. and harassment. The appellant preferred to give up his claim for arrears of salary less subsistence allowance paid to him from the date of the order of suspension until the date of the order of dismissal. He, however, contended that the '. order of, suspension continued to be in force only until the 25th November, 1944, the date of the order of dismissal. On that date the order of suspension ceased . to exist and the appellant was entitled to recover arrears of salary from the 25th November, 1944, to -the 31st December, 1947, inclusive. The Attorney-General strongly ·contended that _it continued to be in force and that it was not at all affected by the declaration of the-Civil Judge that the order of dismissal was illegal. In view of that decision the order of dismissal must. be regarded as a nullity and non-existent in the eye of law. The inquiry, the outcome of which was ·-the order of dismissal, had not therfore ended. It could only end with a valid order which would-replace the order of suspension. Until that happened the accusation against ·the appel-lant remained and the inquiry had not ended. He referred to the case of M. Copa! Krishna' Naid11 v. State of Madhya Pradesh(1). On behalf of the appel-1955 lant reliance was· placed on the case of Provincial Gov-Om Prakash Gupta ernment, Central Provinces and Berar through Collector, v.

v. The The State of Utlar Amraoti Shamshul Hussain Sirai Hussain(2). Pradtsh order of suspension made against the appellant was It Imam]. clearly one made pending an inquiry. certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant. With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspensio-9-which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.

The case referred to by the Attorney-General is not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entiled to recover arrears of salary from the 25th of November, 1944, to 31st J)ecember, 1947.

The appeal is accordingly allowed in palt with costs throughout and th~ decree of the courts below is set aside. The , plaintiff's suit is decreed for arrears of salary from the 25th of November, 1944, to the 31st of J)ecember, 1947, inclusive. The appellant had claimed Rs. 16,810-8-0 less subsistence allowance already drawn as arrears of pay from the 24th of August, 1944, to the 31st J)ecember, 1947. As his claim for arrears of salary from the 24th of August 1944, to the 25th of November, 1944, is given up, the total salary payable to him during thi$ period less subsistence allowance already drawn, must be deducted from the sum of Rs. 16,810-8-0. The judg-ment of the High Court as well as the additional written statement filed by the respondent in this court show that subsequent to the decree passed by the Civil Judge the appellant was treated as under suspension until he was dismissed by a fresh order of

( 1) A.I.R. 1952 Nag. 170.

(1) I.L.R.1948 Nag. 576; A.I.R. (36) 194r1 :Sag. 118.

SUPREME OOURT REPORTS [1955)

1955 dismissal and that he has been paid subsistence allow-Om Prakash Gu1ta ance for the entire period. Such . subsistence allow-

v. ance as has been paid to the appellant from the 25th Tlie Stale of Ufla,

Prtkhsh of November, 1944, to the 31st December, 1947, inclu-

sive, must, thertfore, be credited to the respondent Imam]. and the same must be adjusted against the salary

claimed by the appellant. A decree will accordingly be prepared stating the amount recoverable by the appellant.

The appellant was permitted to appeal in forma pauperis. As he has succeeded in the appeal, the Registrar shall calculate the amount of court fee which would have been paid by the appellant ;f he had not been allowed to appeal as a pauper and incorporate it in the decree. The court fee shall be paid by the appellant and the same will be recoverable by the Government of India from him and shall be the first charge on the amount decreed to him. Under Rule 7 of Order XIV of the Rules of this Court, the appel-lant will be allowed the fees paid by him to his Advo-cates, in the taxation of costs.

1955 THE DELHI CLOTH AND GENERAL MILLS

April 21 CO., LTD.

ti.

HARNAM SINGH AND OTHERS.

(VMAN BosE, JAGANNADHADAS and BHUVANESHWAR

PRASAD SINHA, JJ.)

Priv11te International Law-Law applic11ble to contractual obli-gations-English and Continental schools of thought-Lex situs and uProper I.Au/' of contract-Partition of India-Post partition debt -Action for recovery where lies-Analogy of banking transactions and insurance claims-Place of primary obligatio11-Debt, whether pro-perty-Sections 3 and 130 of Transfer of Property Act-Evacuee pro-perty laws-Pakistan (Protection of Evacuee Property) Ordinance, 1948 (XV/ll of 1948)-Pakistan (Administration of Evacuee Pro· perty) Ordinance (XV) 1949-Whether confiscatory in nature During the years in question cloth was rationed at Lyallpur, then a part of the Punjab in undivided T ndia, ·and sales could only be made to government nominees and other authorised persons. The plaintiffs rcsii!cnt in Lyallpur, were the government nominees. The

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1955 85 ,, .of 1954. Om Prakash Gupta v. i Appeal under Article 133( 1) ( c) of the Constitu-The State of Ullar tion from the Judgment and Decree dated the 6th Prat/uh November, 1950, of the High Court of Judicature at Allahabad in F. A. No. 141 of 1949.

S. Ramaswamy Iyer (K. R. Clioudhry, with him) for th~ appellant.

M. C. Setalvad, Attorney-General for India ( C. P.

Lal, with him) for the respondent.

1955. April 21. The Judgment of the Court was delivered by