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Devendra Pratap Narain Rai Sharma v. State Of Uttar Pradesh And Others
Factual and Procedural Background
Devendra Pratap Narain Rai Sharma, initially an “Inspector Qanungo” in the Revenue Department of Uttar Pradesh, was selected in 1951 for appointment as a Tehsildar on probation. On 21 April 1952 the Collector of Jhansi suspended him and initiated an enquiry into alleged misconduct. The Collector later sought his reversion, but the Land Reforms Commissioner recommended dismissal. Acting on that recommendation, the State Government dismissed the appellant on 16 September 1953.
The appellant challenged the dismissal in Civil Suit No. 163 of 1954 before the Civil Judge, Lucknow. Although the suit was dismissed, the Allahabad High Court reversed that decree, holding that Article 311 of the Constitution had been violated because the appellant had not been afforded a reasonable opportunity to defend himself. The High Court declared the dismissal void and deemed the appellant to have continued in service.
By notification dated 30 March 1959, the Government reinstated the appellant as a Tehsildar, and he assumed charge on 28 April 1959. The Accountant-General limited his pay and allowances to amounts accruing after that date, pending Government instructions on arrears. On 11 July 1959 the Board of Revenue again suspended him and, on 24 July 1959, fixed his earlier remuneration at subsistence allowance up to the dismissal order and a token pay of Re 1 per month thereafter, while counting the period for pension.
On 25 August 1959 the appellant filed a writ petition in the Allahabad High Court seeking, inter alia, to quash the fresh enquiry and suspension, to obtain full salary and increments amounting to Rs 27,238/10, and to secure confirmation as Tehsildar effective 19 April 1953. The High Court held that the second enquiry was not barred, refused to deem him confirmed from 1953, disallowed salary prior to 24 November 1954, and quashed the Re 1 token-pay order, directing the State to reconsider pay for the period 24 November 1954 to 28 April 1959 after hearing the appellant.
The appellant obtained a certificate under Articles 132(1) and 133(1)(b) of the Constitution and appealed to the Supreme Court.
Legal Issues Presented
- Whether the State Government was empowered to institute a second departmental enquiry and suspend the appellant after his earlier dismissal had been set aside for violation of Article 311.
- Whether Rule 54 of the Fundamental Rules permitted the State to fix the appellant’s pay at subsistence allowance and a token Re 1 per month for the period between suspension and reinstatement when his dismissal had been declared void by a civil court.
- Whether the appellant was entitled to full salary and allowances, with increments, for the entire period from 21 April 1952 to 28 April 1959.
Arguments of the Parties
Appellant’s Arguments
- The Government lacked authority to reopen an enquiry already concluded by the High Court’s decision setting aside the dismissal.
- He was entitled to full salary, allowances, and increments for the entire period during which he was kept out of service, treating that time as duty.
- He should be deemed confirmed as Tehsildar from 19 April 1953 and paid accordingly.
State of Uttar Pradesh’s Arguments
- A fresh enquiry was permissible because the High Court had not adjudicated upon the merits of the misconduct charges; it had only found a procedural defect.
- Under amended Rule 54 of the Fundamental Rules, the State could lawfully determine what pay and allowances were due for the period of absence, and the High Court’s direction merely required reconsideration, not payment of full salary.
- Suspension pending the new enquiry was within the State’s disciplinary powers.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dwarkachand v. State of Rajasthan, ILR (1957) Raj 1049 | Effect of a previous enquiry that had exonerated the employee on the permissibility of a second enquiry. | Distinguished; in the present case the appellant had not been exonerated, so the precedent did not bar a second enquiry. |
| Kanak Chandra Bairagi v. Superintendent of Police, Sibsagar, ILR (1955) Assam 191 | Nature of Governor’s revisional powers and whether use of those powers amounts to a second enquiry. | Cited to show that not every subsequent disciplinary action constitutes a second enquiry; held inapplicable to the appellant’s contention. |
| Mohan Singh Chaudhari v. Divisional Personnel Officer, Northern Railway, ILR (1957) Punj 1833 | Binding effect of a civil court decree declaring dismissal illegal. | Distinguished; unlike that case, the civil court here had not examined the merits of the charge, so a fresh enquiry was not barred. |
Court's Reasoning and Analysis
The Supreme Court first addressed the competence of the State to initiate a fresh enquiry. It noted that the earlier High Court decree had invalidated the dismissal solely for want of procedural fairness under Article 311; it had expressly refrained from deciding the merits of the misconduct allegations. Consequently, no finding of exoneration existed, and Articles 310 and 311 did not preclude a new enquiry. The cited precedents were distinguished because they involved either prior exoneration or different factual contexts.
Given that a fresh enquiry was permissible, the Court held that the State was equally entitled to place the appellant under suspension pending its outcome.
On remuneration, the Court rejected the State’s reliance on Rule 54. It held that Rule 54 applies where a dismissal is set aside in departmental appeal; it does not govern situations in which a civil court has declared the dismissal void ab initio. In such circumstances the employee must be treated as never having been lawfully dismissed, and the State cannot unilaterally reduce his pay for the period during which he was wrongfully kept from duty.
The Court, however, declined to disturb the High Court’s discretionary refusal to award salary prior to the date of the suit, noting that the High Court had relied on the appellant’s omission to claim that amount earlier. Although procedural bars like Order 2 Rule 2 CPC might not strictly apply to writ petitions, the Supreme Court would not interfere with the High Court’s exercise of discretion.
Holding and Implications
Holding: The Supreme Court affirmed the Allahabad High Court’s order: the second enquiry and the related suspension were valid; the Re 1 token-pay order was quashed; the State must reconsider the appellant’s pay for 24 November 1954 – 28 April 1959 after giving him a hearing; no salary was awarded for the period before the suit; and there was no order as to costs.
Implications: The decision confirms that when a dismissal is voided solely for procedural defects, the employer may institute a fresh enquiry and suspend the employee, but cannot rely on Rule 54 to curtail pay for periods during which the employee was wrongfully excluded from service. The ruling leaves undisturbed the High Court’s discretion on back-pay prior to the suit and sets no broader precedent beyond clarifying the limited scope of Rule 54 in such contexts.
Shah, J.— In 1951 the appellant Devendra Pratap Narain Rai Sharma held the post of “Inspector Qanungo” in the Revenue Department of the State of Uttar Pradesh and was selected for the post of Tehsildar on probation. By order dated April 21, 1952, the Collector of Jhansi suspended the appellant and commenced an enquiry against him on certain charges of misdemeanour. In June 1952 the Collector recommended to the Land Reforms Commissioner that the appellant be reverted to the post of “Naib Tehsildar”, but the Commissioner recommended to the State Government that the appellant be dismissed from service. The State Government accepted the recommendation of the Commissioner and dismissed the appellant from service, by order dated September 16, 1953. The appellant then commenced an action (Suit No. 163 of 1954) in the Court of the Civil Judge, Lucknow challenging the legality of the order of dismissal principally on the ground that he was not afforded the opportunity of defending himself and of showing cause against the action proposed to be taken against him. The Civil Judge dismissed the suit but the decree of the Civil Judge was reversed by the High Court of Judicature at Allahabad. The High Court held that reasonable opportunity was not afforded to the appellant either before the recommendation was made for imposing penalty or before imposing punishment and therefore the appellant was deprived of the protection of Article 311 of the Constitution. The High Court, accordingly, allowed the appeal, set aside the decree of the Civil Judge and granted a declaration that the order passed by the Government of Uttar Pradesh dated September 16, 1953 purporting to dismiss the appellant was void, inoperative and illegal and the appellant must be deemed to continue in service.
2. The appellant was then by the Government of Uttar Pradesh notification dated March 30, 1959 reinstated to his original post of Tehsildar. He was posted at Tehsil Puranpur in District Pilibhit and took charge of his office on April 28, 1959. The appellant then applied to the Accountant-General of “Uttar Pradesh for payment of arrears of salary and allowances due to him. The Accountant General, by letter dated May 18, 1959 informed the appellant that he was “entitled to draw pay and allowances with effect from April 28, 1959” and that as regards the arrears of pay and allowances for the period between April 21, 1952 and April 28, 1959, reference had been made to the State Government about the terms and conditions of the appellant's reinstatement and that action would be taken on receipt of instructions in that behalf.
3. The appellant was again suspended by order dated July 11, 1959 issued by the Board of Revenue and was directed to hand over charge to the Naib Tehsildar of Tehsil Puranpur. On July 24, 1959, the Board of Revenue ordered that the salary of the appellant for the period between April 21, 1952 and the date of taking over charge of his duties as Tehsildar on reinstatement will be fixed as follows :
(1) The pay from April 21, 1952 till the date of orders of his dismissal will be limited to the subsistence allowance of Rs 76/11 p.m already drawn by him.
(2) The pay for the period from the date following the date of the order of his dismissal till the date of his taking over charge of his duties as Tehsildar on reinstatement will be fixed at Re 1 p.m as token pay.
The appellant was also informed that the period of his dismissal i.e April 21, 1952 to the date of his taking over charge of his office as Tehsildar on reinstatement will be treated as “on duty”, and will count towards pension.
4. The appellant applied on August 25, 1959 to the High Court at Allahabad by a petition under Article 226 of the Constitution praying for a writ quashing the order directing enquiry into the allegations regarding his work and conduct as Tehsildar at Garautha, District Jhansi and for a direction setting aside the order of suspension dated July 11, 1959 and for a direction permitting the appellant to draw his full salary and allowances with all increments amounting to Rs 27,238/10 and for an order to the Accountant General to issue pay slips at the rate of Rs 325 p.m from the date of taking over charge with dearness and house allowances with further increments, if any, falling due in the scale of Rs 200-10-250-15-400, and for directions to the respondents to issue orders for confirmation of the appellant with effect from April 19, 1953. The appellant claimed that the Government of Uttar Pradesh had no power to reopen the enquiry concluded by the decision of the High Court of Allahabad and that the State was bound to pay him salary with increments and allowances for the period of suspension as if he was on duty during that period. He also claimed that he must be deemed to have been confirmed in the post of a Tehsildar and, therefore, entitled to salary in the grade of Tehsildar.
5. The High Court held that the second enquiry against the appellant directed by the Board of Revenue was not barred by virtue of the previous decision and that the appellant could not be deemed to have been confirmed with effect from April 1953. The High Court further held that because the appellant had not claimed the salary for the period April 21, 1952 to November 24, 1954, in the Civil Suit filed by him he should be deemed to have relinquished that part of his claim. Regarding the salary for the period November 24, 1954 to April 28, 1959, the High Court held that fixation of Re 1 by the Board of Revenue as token salary of the appellant amounted to punishment which the Government could not impose without following the procedure laid down by Article 311 of the Constitution. In the view of the High Court the appellant having been reinstated, there was no justification for not granting him full salary till July 14, 1959, the date till which he continued to function as Tehsildar after reinstatement. But the High Court observed, “A writ of mandamus can, however, only direct the opposite parties to proceed in accordance with law. We, therefore, direct that the order contained in Annexure 11 be quashed and the State Government directed to reconsider the matter in the light of the relevant rule after giving notice to and hearing the petitioner.” The High Court further held that the appellant was not entitled to any higher salary nor was there anything to show that he had earned any annual increment or had crossed the efficiency bar.
6. Against the order passed by the High Court partially allowing the petition and directing the State Government to reconsider the matter regarding the pay and allowances due to the appellant for the period November 24, 1954 to April 28, 1959, this appeal has been preferred with certificate of fitness granted under Articles 132(1) and 133(l)(b) of the Constitution.
7. In our view, the State Government was competent to direct a fresh enquiry against the appellant for dereliction of duty even if such dereliction was in the period relating to which proceedings were previously started and the appellant had been dismissed from service. The appellant was not in the earlier proceedings exonerated by the High Court in respect of the alleged misconduct charged against him, and, in any event, charge against him in the second enquiry was different from the charge in the first enquiry. The High Court had in the suit challenging the order passed in the first enquiry expressly observed that on the question as to misconduct and the punishment, no opinion was expressed. The suit filed by the appellant was decreed only on the ground that he had not been afforded a reasonable opportunity of showing cause against the charge against him and also the punishment decided to be imposed upon him.
8. Authorities on which reliance was placed by counsel for the appellants, namely, Dwarkachand v. State of Rajasthan ILR (1957) Raj 1049, Kanak Chandra Bairagi v. Supdt. of Police, Sibsagar ILR (1955) Assam 191 and Mohan Singh Chaudhari v. Divisional Personnel Officer, Northern Railway, Ferozepore Cantt. ILR (1957) Pub 1833, do not support the plea that the second enquiry is, in the circumstances of the case, barred. An adjudication on the merits by a quasi-judicial body may or may not debar commencement of another enquiry in respect of the same subject-matter. But in this case we are concerned with the scope of the High Court order. The binding effect of a judgment depends not upon any technical consideration of form, but of substance. The High Court in the appeal filed by the appellant in Suit No. 163 of 1954 did not exonerate the appellant from the charges. The High Court decreed the suit on the ground that the procedure for imposing the penalty was irregular, and such a decision cannot prevent the State from commencing another enquiry in respect of the same subject-matter consistently with the provision of Articles 310 and 311. In Dwarkachand case in a previous enquiry the public servant concerned had been exonerated; and in Mohan Singh Chaudhari case ILR (1957) Pub 1833 a decision by the civil court declaring illegal an order dismissing a public servant by an officer not authorised in that behalf was held binding on all the parties in proceedings under Article 226 till such decision was set aside in accordance with law. In Kanak Chandra case ILR (1955) Assam 191 it was held that an order in exercise of powers of revision by the Governor under the authority reserved to him setting aside an order of censure passed by a subordinate authority and dismissing the public servant concerned from service did not amount to a second departmental enquiry. These cases do not lend support to the proposition that after an order passed, in an enquiry against a public servant imposing a penalty is quashed, by a civil court, no further proceeding can be commenced against him even if in the proceeding in which the order quashing the enquiry was passed, the merits of the charge against the public servant concerned were never investigated.
9. If the State Government was competent to order a fresh enquiry, we see no reason why it would be incompetent to direct suspension of the appellant during the pendency of the enquiry.
10. The High Court in dealing with the appellant's claim to salary during the period of his suspension pending the earlier enquiry observed that there was no justification for “not granting the appellant his full pay” for the period after the date of the suit. But the counsel for the State of Uttar Pradesh asserted that it is open to the State, notwithstanding the direction, to award as remuneration to the appellant for the period for which he was under suspension any amount which on a reconsideration of the matter in the light of the relevant rules and after hearing the appellant the State Government considers just and proper. This power, counsel contends, arises by virtue of Rule 54 of the Fundamental Rules framed by the State of Uttar Pradesh under the authority conferred under Article 309 of the Constitution. Counsel says that it was because of this rule that the High Court directed the State Government to reconsider the matter in the light of the relevant rules.
11. In our view, this contention is wholly misconceived. Rule 54, as amended in 1953, stands as follows :
“54. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order—
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where such competent authority holds that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be together with any allowances of which he was in receipt prior to his dismissal, removal or suspension.
(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe.
Provided that the payment of allowances under clauses (2) and (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under clause (2) the period of absence from duty shall be treated as the period spent on duty for all purposes.
(5) In a case falling under clause (3) the period of absence from duty shall not be treated as period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purposes.”
This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. This rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in this case the order of dismissal was declared invalid in a civil suit. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous, The effect of the adjudication of the civil court is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.
12. The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of Order 2 Rule 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Article 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court.
13. The order of the High Court therefore is confirmed. The State has made a wholly unjustifiable claim to fix the salary of a public servant wrongfully prevented from performing his duties, even after he is reinstated in consequence of a decision of the civil court declaring his dismissal as wrongful. As, however, the principal relief claimed by the appellant is not granted, we think that the proper order is that there will be no order as to costs throughout.
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