Tustu Charan Saha vs Collector, District Hooghly

D. Basu, J.—Though this petition under Article 226 of the Constitution was a comprehensive one. challenging the validity of several orders, the Rule was issued only on ground No. VIII, and at the hearing, the only point pressed for the Petitioner has been that the last paragraph of the order at Annex. K to the petition (p. 46), made by the Collector (Respondent No. 1), is not valid and that the Petitioner should get his full emoluments during the period of suspension which was vacated by the order at Annex. K dated November 2, 1964.

The impugned order arose in this way. The Petitioner was, at the material time, a lower division assistant in the Hooghly Collectorate. Disciplinary proceedings were initiated against him by serving the charge-sheet at Annex. A to the petition on May 8, 1964. The last part of the charge-sheet which called upon him to show cause why he should not be dismissed or suitably punished contained the following order:

Pending disposal of the proceedings you are placed under suspension and you will be allowed 1/4 of your pay and other allowances in full, if any, as subsistence allowance.

The proceedings were eventually terminated by the order dated November 2, 1964, at Annex. K. By this order the Collector found the Petitioner guilty of charges 2, 6 and 7 and observed that though "the charges proved against him are grave", he would like "to give him the last chance to amend himself". Instead of awarding the "punishment of dismissal", therefore, he ordered-

that his next increment be stopped for three years and he be transferred to any other station.

I further order that he be reinstated to his former post with immediate effect, but he will not get anything more beyond what he has received as subsistence allowance. The period of suspension will be treated as on duty.

The case made in paras. 23 and 28 of the petition was that "by ordering reinstatement", the Collector had "condoned the guilt" of your Petitioner and that, accordingly, he had no right to deprive the Petitioner of his full pay etc. during the period of suspension. In para. 14 of the counter-affidavit the Respondents relied specifically upon Rule 72(b) of the West Bengal Service Rules as justifying the order "denying full pay during the period of suspension" because "the order of reinstatement does not mean condonation of all guilt. The charges...were proved beyond doubt".

On the point of fact raised in the aforesaid paragraph of the counter-affidavit, I am ready to agree with the Respondents that the word ''reinstate'' was somewhat loosely used in the impugned order. It was clearly stated therein that the charges specified in that order were proved and that they were grave charges, and it was also followed by the order of punishment by way of stoppage of increment. Withholding of increments is a penalty prescribed by all the Service Rules which may be applicable to the Petitioner. It cannot, therefore, be held that the Petitioner was ''honourably acquitted'' within the meaning of Clause (a) of Rule 72 of the West Bengal Service Rules, Pt. I. The Petitioner''s case came under Clause (b) of the said Rules, assuming that they were applicable, and that accordingly the punishing authority was entitled to order that the Petitioner was to get not his full pay but any proportion thereof for the period of suspension "as the punishing authority may prescribe".

The matter, however, does not end here since the Rule has been issued on the added ground No. VIII, which goes to the root of the matter. This ground is that the existing law does not confer on the Government the power to order interim suspension pending inquiry to deprive an employee of his full pay, so that while revoking an order of suspension the Government cannot exercise similar power and Annex. K must be condemned accordingly.

This question has indeed been agitated before this Court in several cases since Nrishingha Murari Chakravarty Vs. District Magistrate and Collector, Hooghly, , and it has been settled by the Division Bench decision in State of West Bengal v. Anadi Nath (1965) 3 R.L.R. 64, on appeal from the judgment of this Court in Anadi Nath v. State of West Bengal (1965) 2 R.L.R. 7. The decision of the Division Bench, read with the Supreme Court decisions in The Management of Hotel Imperial, New Delhi and Others Vs. Hotel Workers'' Union, , Kesoram Cotton Mills Ltd. Vs. Gangadhar and Others, , T. Cajee Vs. U. Jormanik Siem and Another, , leads to the following propositions:

(a) Though the Government, like any other employer, can ask the employee not to join his duties for the purpose of making an inquiry or otherwise, it has no right to withdraw any part of the emoluments of the employee during such suspension unless specifically empowered in that behalf by law or Rules having statutory force.

(b) The power to withdraw emoluments during interim suspension cannot be drawn from Section 16 of the General Clauses Act, nor from Rules 71-72 of the West Bengal Service Rules or the corresponding provisions of the Fundamental Rules, which refer to suspension as a substantive punishment.

In the instant case, Mr. Roy Choudhury, appearing on behalf of the Respondents, argues that specific power in the above sense is to be found in Rule 10(1) of the Bengal Subordinate Services (Discipline & Appeal) Rules, 1936, which governs the case of the Petitioner, and that since this provision was not noticed in the case of Anadi Nath Supra the decision therein will not be applicable to the instant Case.

Before taking up this contention, I should point out an act of indifference, without apparent justification, on the part of the authorities responsible for making these Service Rules, which may operate to the prejudice of the public administration itself, by causing a failure to take disciplinary action against a delinquent employee, in deserving cases. It was pointed out in the judgment of this Court in Anadi Nath''s case Supra that though there existed specific provisions in the Central Civil Services (Classification, Control & Appeal) Rules, 1957, the All India Services (Discipline & Appeal) Rules, 1955, and the like, empowering the Government to order interim suspension of an employee depriving him of his full emoluments, there was no such power in the West Bengal Service Rules or the Civil Services (Classification, Control & Appeal) Rules, 1930, which only provide for suspension as a substantive punishment. The desirability of framing a specific Rule on the lines of the Central Rules referred to was emphasised in Anadi Nath v. State of West Bengal Supra, p. 12. Since Government went on appeal against this judgment, it cannot but be said that the attention of the Government was drawn to the observations of this Court but that they were not agreeable to abide by them without obtaining the verdict of a higher Tribunal. But the Division Bench, on appeal, affirmed the view that Rules 71-72 of the West Bengal Service Rules

do not provide for payment of allowances to a Government servant against whom an order of interim suspension pending investigation is made. P. 72, ibid.

and that, accordingly,

...the West Bengal Service Rules suffer from a lacuna in this respect and, in my opinion, the Rules should make express provision in this regard. P. 74, ibid.

But, notwithstanding such clear suggestions made on March 22, 1965, by the highest Tribunal of this State, nothing appears to have been done by the appropriate authorities to fill up this lacuna during the period of over two years that has followed; at least the Government Advocate could not enlighten me on this point,

This is why Mr. Roy Choudhury has to rely on Rule 10(i) of the Bengal Subordinate Services (Discipline & Appeal) Rules, 1936. That provision, however, cannot help the Respondents for two reasons:

(a) Firstly, Rule 10(i) of the aforesaid Rules neither confers the power to order interim suspension nor the power to withdraw the full emoluments of the employee during the period of such suspension.

(b) Secondly, the West Bengal Services (Discipline & Appeal) Rules, 1936, stands repealed by Rule 4 of the West Bengal Service Rules, 1964, which have been promulgated by the Governor in exercise of his powers under Article 309 of the Constitution.

A. So far as the first point is concerned, the language of Rule 10(i) cannot be overlooked. Rules 7-9 speak of substantive punishments, and ''suspension'' in Rule 7(v) clearly refers to suspension as a substantive punishment. Then comes Rule 10(i) which says:

Without prejudice to the provisions of Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, no order of penalty specified in Rule 7, other than an order of censure or suspension pending proceedings...shall be passed...unless the officer concerned has been given an adequate opportunity of making any representation....

It is clear that this rule has the object of imposing, ai procedural obligation upon the power to award any of the penalties specified in Rule 7 which, as already stated, refers to suspension as a substantive punishment and not interim suspension. Of course, Rule 10(i) mentions interim suspension as an exception to the procedural requirement laid down by Rule 10(i), but that is on the assumption that such power otherwise exists. It does not confer the power to order interim suspension if it does not otherwise exist.

Even assuming that Rule 10(i) confers the power to order interim suspension, it, confers no power to withdraw any part of the emoluments of the employee and it is possible, in view of the Supreme Court decisions cited earlier, to construe it as simply referring to the otherwise innocuous power of the Government to ask the employee not to attend office ''pending proceedings'' against him, a right which belongs to every employer, particularly because it is excepted out of Rule 10(i) as not constituting a penalty so as to call for an opportunity being given to the employee before making such order.

In the instant case, we are not concerned with such an empty right but the right of the Government to deprive the Petitioner of any part of his full emoluments during the period he was under suspension and he has more than once in the petition referred to his right to the amount of which he has been deprived by the impugned order at Annex. K. The Respondents have, therefore, to find out some statutory rule which authorises them to impose monetary loss upon the Petitioner, apart from the mention of interim suspension in Rule 10(i). Before proceeding further, I would like to reproduce the relevant observations of the Supreme Court in the case of Cajee v. Jormanik Supra:

No statute or rules framed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances, therefore, though an order of interim suspension could be made against the Respondent while inquiring into his conduct to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far as there is no statute or rule thereunder the remuneration cannot be withheld from the Respondent, even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him.

It is clear, therefore, that even if it be assumed that Rule 10(i) of the Bengal Subordinate Services (Discipline & Appeal) Rules of 1936 confers by implication the p6wer to order interim suspension, the power to withhold any part of the emoluments suspended employee cannot be had from that rule; nor is there any other provision in these Rules of 1936 to authorise that. That is why, in the counter-affidavit as well as at the hearing; the Respondents have to fall back upon Rule 72 of the West Bengal Service Rules. But this Rule, as has been finally settled by the Division Bench in Anadi Nath''s case Supra p. 72, deals with suspension as a substantive punishment and not with interim suspension. The position would not be improved if the Fundamental Rules, which govern the employees under the rule-making power of the Central Government, were applicable to the case of the Petitioner; for, Rules 53 and 54 of the Fundamental Rules are plainly applicable to suspension as a penalty, similar to dismissal or removal, with which it is treated together in chap. VIII of these Rules, just as chap. IX of the West Bengal Service Rules do (vide Anadi Nath''s case Supra, p. 71). There is no mention of suspension pending inquiry or disciplinary proceedings.

The result is that even if Rule 10(i) of the Bengal Subordinate Services Rules, 1936, be held to confer the power to order interim suspension, there is ho existing Rule to deduct any part of the full emoluments of the Petitioner during the period of such suspension. In the interests of the administration of the democratic Government of this State, therefore, this Court points out once again to the appropriate departmental authorities, the need for framing a specific rule following Rule 12(1)(a) of the Central Services (Classification, Control & Appeal) Rules, 1957, or any of the other all-India Rules mentioned at p. 9 of the judgment of this Court in Anadi Nath''s case Supra. In this connection, I would say that, in my opinion, the duty of a Government Advocate is not discharged by merely pleading in Court; it is his duty also to explain to his client the causes of failure in Court with respect to the case entrusted to him and also to advise the future course of action. If, after this is done, the red-tape does not move, the responsibility would shift from the legal adviser to the public servants who are responsible for carrying on the administration according to law as explained by binding decisions of the superior Courts.

B. I shall now explain the second reason why Rule 10(i) of the Bengal Subordinate Services Rules of 1936 cannot be invoked by the Respondents to justify the curtailment of the emoluments during interim suspension. These Rules, as the notification No. 10349A of September 2, 1936 shows, are a subordinate legislation of the second degree, having been made by the Government of Bengal in exercise of the rule-making power conferred by Rules 44 and 54 of the Civil Services (Classification, Control & Appeal) Rules, 1930. The latter Rules, again, had been promulgated by the Secretary of State for India in exercise of the rule-making power conferred upon him by Section 96B(2) of the Government of India Act, 1919.

In my opinion, the Bengal Rules of 1936 stand repealed by Rule 4 of the West Bengal Service Rules as soon as the latter Rules were promulgated by the Governor of the State of West Bengal in exercise of his powers under Article 309, on March 24, 1964, The reason is as follows:

It is true that even after the repeal of the Government of India Act, 1919 and 1935, the Civil Services (Classification, Control and Appeal) Rules and the Bengal Rules of 1936, made thereunder, continued to subsist by virtue of Section 276 of the Government of India Act, 1935 and Article 313 of the Constitution of India. But the Bengal Rules of 1936, made by the Government of Bengal, as a ''Local Government'' within the meaning of Section 134(4) of the Government of India Act, 1919, ceased to exist as soon as the Governor exercised his rule-making power under Article 309, on the same subject, unless the pre-Constitution Rules were allowed to continue by the Rules made under Article 309 themselves. This is made clear by the words ''until other provision is made'', at the opening of Article 313, which provides:

Transitional provisions. Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State, shall continue in force so far as consistent with the provisions of this Constitution.

The first thing to be noted is that Article 313 is not a permanent but a ''transitional'' part of the Constitution. The words ''until other provision is made'' plainly refer to the provision made in Article 309, which precedes Article 309, is in the words:

Recruitment and conditions of service of persons serving the Union or a State. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor...of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

the net result of Articles 309 and 313, read together, is:

(i) The ultimate and permanent authority for regulating the conditions of service of Public servants is the appropriate Legislature.

(ii) But the matter cannot remain in vacuo so long as the Legislature does not exercise its power; until and in so far as the Legislature does not cover a particular subject-matter by legislation, the Governor may make rules regulating the conditions of service of State employees. But the Governor''s power will cease as soon as and in so far as the Legislature undertakes legislation.

(iii) But neither the Legislature nor the Governor could be expected to cover the huge field by making enactments or rules on the very day the Constitution was inaugurated. That is why the ''transitional provision'' in Article 313 was provided. Barring the question of legislation, Article 313 only means that until Rules under Article 309 are made by the Governor the existing pre-Constitution Rules relating to a matter coming within the ambit of Article 309 will continue to have the force of law, but as soon as such Rules are made the pre-Constitution Rules shall be silenced unless, of course, their further continuance is allowed by the Rules under Article 309 themselves.

Whatever might have been the status of the Bengal Subordinate Services (Discipline & Appeal) Rules, 1936, prior to March 24, 1964, when the Governor exercised his power under Article 309 by promulgating the West Bengal Service Rules, the position has clearly changed since that date. As Rule 2 of these Rules says, these Rules are applicable to

all members of services and holders of posts whose conditions of service the Government of West Bengal are competent to prescribe.

with the only exceptions of those mentioned in Notes 1 and 2 of this Rule, namely,

(a) Subordinate ranks of the Police Forces who are governed by special laws;

(b) Members of the all-India Services who are protected by Articles 312, 314.

There is no exception in respect of members of Subordinate Services on the administrative side outside the Police forces. It is next to be seen that the entire subject-matter of ''discipline'', which is dealt with in chap. II of the Subordinate Services Rules of 1936, has been covered by chap. IX of the West Bengal Service Rules of 1964. Since it has still been argued by Mr. Roy Choudhury that the two sets of Rules may exist side by side, I must refer to Rule 4 of the West Bengal Service Rules, 1964, which says:

All rules, orders or notifications corresponding to these rules in force immediately before the commencement of these rules and applicable to Government servants to whom these rules apply are hereby repealed.

There is no doubt that the West Bengal Service Rules apply to the members of the Subordinate Services to which the Petitioner belongs; there is also no doubt that these Rules also deal with matters of ''discipline''. After this, it is hard to contend that the continuance of the Subordinate Services Rules of 1936 is impliedly permitted by the Rules, made under Article 309, of 1964.

In fact, the confusion even in the minds of lawyers representing the Government has been caused by certain loose statements in para. 2 of the Preface of the West Bengal Service Rules, which was described as ''misleading'' as early as 1954 in the case of Hirendra Nath Roy Vs. State of West Bengal and Others, . It was pointed out by this Court that instead of being a mere collection of existing Rules without intending to affect the existing law, the West Bengal Service Rules provide a ''self-contained body of Rules'' applying to

all Government Servants within the administrative control of the State of West Bengal, Pp. 457-8, ibid.

It is curious that though these observations were made with respect to the Preface to the 1948 edition of the West Bengal Service Rules, which were originally made u/s 241 of the Government of India Act, 1935, the ''misleading words'' in the Preface have been reproduced in the Preface to the Rules as promulgated under Article 309 of the Constitution. Such reproduction, in addition to being misleading, has a ''deleterious'' effect inasmuch as the Constitution has brought in a world of change by making the Rules made under Article 309 and Rules having otherwise the force of law the subject-matter of litigation The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, to the embarrassment of the administration, in very many cases, whereas no service Rules were justiciable prior to the Constitution AIR 1937 27 (Privy Council) . The issue of the Rules under Article 309 cannot have for its object mere ''administrative convenience'' as the first paragraph of the Preface of 1964 modestly assumes. It is the legal Bible of the thousands of employees of the Government on the one hand, and of the Administration itself on the other, facing the barrage of attacks before Courts of law. Any loose talk, whether in a Preface or otherwise of a Government publication, is, therefore, likely to lead to undesirable consequences particularly in the face of Rules 2 and 4 of the Rules of 1964. That is why I wonder why no change was sought to be made after the observations of this Court in Hirendra Nath Roy Vs. State of West Bengal and Others, . In my opinion, no administrative commentary is required to Rules promulgated by the Governor under constitutional authority and, if and so long as a better Preface prepared in consultation with sound legal advice, be not available, the existing Preface may very well bid farewell without anybody to lament for it.

I am not unmindful of the fact that it is the Petitioner who has referred to the Subordinate Services Rules in his petition. But no amount of mis-understanding, pleading, waiver or like, vague concepts can do away with the legal effect of repeal by Rule 4 of the Rules made under Article 309, if I have rightly interpreted it.

My conclusion is that nothing in the Bengal Service Rules can give any succor to the Respondents to justify the cut of emoluments in Annex. K and the fate of Rule 72 of the Rules of 1964 has already been sealed by the Division Bench of this Court.

In the result, the Rule is, made absolute but without any order as to costs. Let the Respondents be restrained from giving effect to the last paragraph of the order at Annex. K so as to deprive the Petitioner of any part of his emoluments to which he would have been entitled, but for the order of suspension for the period from May 8, 1964 to November 2, 1964.

On the prayer of Mr. Roy Choudhury, let the operation of this order be stayed until one week after the reopening after the long vacation.