Madurai Municipal Corporation vs K. Ramaswami Mudaliar

V. Ramaswami, J.—The defendant is the appellant. The suit was filed by the respondent/plaintiff for the recovery of a sum of Rs. 31,739-33

with costs on the following facts and circumstances:

The plaintiff was employed as a Revenue Officer under the defendant Corporation.He was placed under suspension with effect from 2-3-1960

pending an enquiry on certain charges of criminal misappropriation. On completion of such enquiry he was dismissed from service with effect from

25-9-1962. In the normal course he would have been superannuated with effect from 1-10-62. The plaintiff then filed W.P. No. 180 of 1984

under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari calling for the records connected with the dismissal order

dated 25-9-1962 and to quash the same. That petition was dismissed. However, when he filed W.A. No. 216 of 1967, a Division Bench of this

Court held that the order of dismissal was contrary to Article 311 of the Constitution, in that neither the petitioner was given copies of the finding of

the Enquiry Officer and called upon to show cause against those findings nor was he given an opportunity to show cause against the proposed

punishment. The order of dismissal was accordingly set aside. This Court further observed.

The Commissioner will of course be at liberty to proceed with the Departmental Enquiry from the stage of the finding of the Enquiry Officer.

This order in writ appeal was made on 23-11-1972. Subsequently, on 21-6-1973, it appears that the defendant sent a notice of continuation of

the proceedings and called upon the plaintiff to submit his explanation to the findings of the Enquiry Officer. When those proceedings were

pending, on 4-10-1973, the plaintiff issued a notice to the defendant calling upon it to pay his subsistence allowance together with his dearness

allowance as per the Fundamental Rules for the period from 2-3-1960 till the date of notice. Though the receipt of the notice was acknowledged,

the defendant did not send any reply. Thereafter, the plaintiff had filed the suit on 13-2-1974 claiming subsistence allowance and dearness

allowance till the date of the suit which according to him amounted to Rs. 31,739-33.The defendant in its written statement contended that as per

the Fundamental Rules the plaintiff is not entitled to any subsistence allowance and that in any case he is not entitled to such allowance after his

retirement with effect from 1-10-1962. It appears that the defendant/Municipal Corporation filed O.S. No. 44 of 1963 against the plaintiff and two

others in the Court of the learned Subordinate Judge, Madurai, and obtained a decree for Rs. 40,141.73.In the written statement filed in the

present case, the defendant pleaded that the amount due under O.S. No. 44 of 1963 should be set off against any decree that may be passed in

favour of the plaintiff in this suit. The learned Subordinate Judge held that the suspension order dated 2-3-1960 continued on the setting aside of

the order of dismissal dated 25-9-1962, that he continued to be under suspension even on 1-10-1962, when he ought to have been

superannuated, and that therefore, he could not have been superannuated. For this view, he relied on Rule 56(C) of the Fundamental Rules. In that

view, he also held that the plaintiff was entitled, to the suspension allowance as per the Rules till a final order is made in the disciplinary proceeding

which was continued by the notice dated 21-6-1973. The learned Subordinate Judge also held that the defendant is not entitled to a claim of set-

off against the decree in O.S. No. 44 of 1963. The suit accordingly was decreed as prayed for.

There is no dispute that though the plaintiff was employed as a Revenue Officer originally by the Madurai Municipality and continued later in the

same position by the Madurai Municipal Corporation, the Fundamental Rules are applicable to the plaintiff. Under Fundamental Rule 53, a

Government servant who is placed or deemed to have been placed or continues to be under suspension shall be entitled to the payments referred

to in that Rule. Under Fundamental Rule 56, when he attains the age of 58 years he is superannuated and compulsorily retired. It prohibits the

continuance in service after that age except with the sanction of the Government on public grounds which must be recorded in writing but he shall

not be retained after the age of 60 years except in very special circumstances. However, Clause (c) of Fundamental Rule 56 provides:

A Government Servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of

compulsory retirement but should be retained in service until the enquiry in respect of the charge is concluded and a final order passed thereon by

the competent authority.

As supplementary to the provision in Fundamental Rule 56(c), the proviso to Fundamental Rule 53(l)(a) states that if a Government servant under

suspension continues to be under suspension after the date of compulsory retirement, the amount of subsistence allowance shall be reduced to the

amount of pension which will be provisionally admissible.Thus, if he is under suspension on a charge of misconduct, he shall not retire on his

reaching the date of compulsory retirement but will be eligible for the subsistence allowance as he would normally be eligible during the period of

suspension as provided under Fundamental Rule 53.

A Division Bench of this Court in the decision in Ramanathan v. State of Tamil Nadu, 86 L.W. 416, held that in a case where in respect of an

officer due to retire, certain charges of corruption were levelled a few days prior to his retirement, and he was kept under suspension till after the

full enquiry, and was dismissed later on, it was not necessary to make a formal order under Fundamental Rule 56(a) continuing his service after the

date of superannuation for the purpose of continuing the enquiry and that in a case where Clause (c) of Fundamental Rule 56 is applicable, the

Government servant concerned will continue to be in service until the final order is made after full enquiry. The Rule is thus an automatic extension

of service without there being express order therefore. However, the Rule in terms is applicable only when the Government servant is kept under

suspension prior to the date of superannuation and the enquiry pending which the suspension order was made has not been completed and final

order made. Unless, therefore, there was an effective order of suspension on the date of superannuation, that is on the date when he would have

been normally superannuated, the automatic extension of service provided under Clause (c) would not be applicable and he would retire on that

day. However, the Government could by an express order made before such retirement as provided under Fundamental Rule 56(a) continue him

in service.

The question therefore for consideration is whether, on 1-10-1962 when the plaintiff would have attained the age of superannuation and

therefore compulsorily retired, he was under suspension pending the enquiry. The order of dismissal was made on 25-9-1962 about five days prior

to the date of superannuation and the relationship of master and servant ended with the order of dismissal and therefore he was neither in service

nor under suspension on 1-10-1962. The point for consideration is whether by reason of the order in W.A. No. 216 of 1967, quashing the order

of dismissal, the plaintiff shall be deemed to be under suspension on l-10-1962.The order in writ appeal came long after the date of

superannuation. Apart from that, in two decisions of the Supreme Court, it was authoritatively held that a suspension order made pending an

enquiry would merge with the order of dismissal and when the order of dismissal was set aside in appeal or review or in suit or other proceedings,

suspension order would not revive and if the Government servant is to be considered as under suspension, a fresh order of suspension is

necessary. In Om Prakash Gupta Vs. The State of Uttar Pradesh, , the Supreme Court held that,

Where an order of suspension is made against a Government servant pending an inquiry and as the result of inquiry an order of dismissal by way of

penalty has been passed, the order of suspension lapses with that order and the subsequent declaration by a Civil Court that the order of dismissal

was illegal cannot revive the order of suspension which did not exist.

In H.L. Mehra Vs. Union of India (UOI) and Others, , the Supreme Court observed:

When an order of suspension is made against a Government servant pending an enquiry into his conduct, the relationship of master and servant

does not come to an end. What the Government, as master, does in such a case is merely to suspend the Government servant from performing the

duties of his office. The Government issues a direction forbidding the Government servant from doing the work which he was required to do under

the terms of the contract of service or the statute or rules governing his conditions of service, at the same time keeping in force the relationship of

master and servant. In other words, to quote Hegde, J., from V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, , ""the employer is

regarded as issuing an order to the employee which because the contract is subsisting, the employees must obey"". This being the true nature of an

order of suspension it follows that the Government servant would be entitled to his remuneration for the period of suspension unless there is some

provision in the statute or rules governing his conditions of service which provides for withholding of such remuneration. Now, when . an order of

dismissal is passed, the vinculum juris between the Government and the servant is dissolved; the relationship of master and servant between them is

extinguished. Then the order of suspension must a fortiori come to an end. But what happens when the order of dismissal is subsequently set aside?

Does that revive the order of suspension? We do not think so. Once the suspension has come to an end by an order of dismissal, which was

effective when made, it cannot be revived by mere subsequent setting aside of the order of dismissal in the absence of a statutory provision or rule

to that effect.

In support of this proposition, the Supreme Court relied on its earlier judgment in Om Prakash Gupta Vs. The State of Uttar Pradesh, , referred to

above.

Therefore, there could be no doubt that the suspension order dated 2-3-1960 in this case merged with the order of dismissal dated 25-9-1962

and when that order of dismissal was set aside in W.A. No. 216 of 1977 the suspension order was not revived. It may be that when the dismissal

order was set aside the plaintiff shall be deemed to have been in service and if that was so he should have been retired on 1-10-1962 and since

then was no longer in the Government service subsequent to 1-10-1962. Even if a fresh suspension order was made, which was not the case in

this case apart from the legality of it, it could not have saved the retirement of the plaintiff because in terms of Fundamental Rule 56(C) the

suspension order should have been in force on the day when the plaintiff would normally have retired. The view of the Court below that the

suspension order was revived is therefore clearly wrong and the judgment and decree are liable to be set aside.

The claim in the suit covered the period from 2-3-1960 to 25-9-1962 when the plaintiff was in fact under the order of suspension and also from

25-9-1962 to 1-10-1962 when he should have been superannuated. When the order of dismissal was set aside by this Court as already stated,

the plaintiff shall be deemed to have been in service till 1-10-1962.But how that period is to be treated and what amount has to be paid is again a

matter to be considered by the defendant as per the Fundamental Rules. In this case, since the matter had been pending for more than two

decades and the plaintiff also has become very old, we consider that whatever relief that could be given we may give it in this suit itself. The claim

made for the period from 2-3-1960 to 1-10-1962 after deducting whatever he had received during that period works out only to Rs. 2,797.25.

Even if he was entitled to more than this money, since he had restricted the claim for this period, he will be entitled to a decree only for this amount.

In the written statement filed by the defendant, a plea of limitation had also been raised. However, since the cause of action can be said to have

arisen only when the order of dismissal was set aside in W.A. No. 216/67 on 23-11-1972 and the suit itself was filed on 13-2-1974 within a

period of three years from 23-11-1972, as has now been held by the Supreme Court in Maimoona Khatun and Another Vs. State of Uttar

Pradesh and Another, , we have to hold that the suit is in time in respect of the sum of Rs. 2,797.25. Accordingly, we set aside the judgment and

decree of the Court below and decree the suit only in respect of a sum of Rs. 2,797-25. The appeal is allowed except in regard to the sum of Rs.

2,797-25 as stated above, but, there will be no order as to costs.

The above appeal coming on this day for being mentioned on the office Note dated 12-10-1983, the Court delivered the following Judgment:

Ramaswami, J.: Court fee in the suit O.S. No. 535/74, Sub-Court, Madurai, is to be paid by the plaintiff. The plaintiff will be entitled to

proportionate costs in the trial Court.