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TMI Blog1957 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... rat (Civil Misc. Case No. 17 of 1955: (AIR 1956 Madh B 259 (A) ), filed by the applicant, holding that the order of dismissal of the petitioner was illegal and inoperative. Subsequently, on 3rd January 1956, the Raj-Pramukh of Madhya Bharat passed two orders, one reinstating the applicant in service and the other suspending him with retrospective effect from 31st January 1954. There is no dispute as regards these facts. The petitioner challenges the validity of the suspension order dated 3rd January 1956, on the ground that the Madhya Bharat Government had no power to suspend him with retrospective effect from 31st January 1954, and that under the decision dated 16th November 1955 of the Madhya Bharat High Court in Civil Misc. Case No. 17 of 1955: (AIR 1956 Madh-B 259 (A), he was entitled to be treated as on duty till the date of that decision and even after that. In the return filed on behalf of the State of Madhya Bharat, it was averred that the Madhya Bharat Government had the power to suspend a Government servant with retrospective effect. 3. It was argued by Mr. Daji, learned counsel appearing for the petitioner, that suspension with retrospective effect was a contradict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. It was not a penalty imposed after an enquiry. The enquiry resulted in an order of dismissal bay way of penalty being made against the applicant. It is not necessary to consider whether, in the absence of any express rule, the Madhya Bharat Government had on 3rd January 1956, any inherent power to suspend the petitioner pending an enquiry. Learned counsel for the petitioner, though he raised the point, did not press it for decision. Assuming that the Government had this power, the question whether in the exercise of inherent power of suspension the Government could, by an order made on 3rd January 1956, make the applicant's suspension effective from 31st January 1954, depends on the concept of the word 'suspension' and on the effect of the order dated 16th November 1955, of the Madhya Bharat High Court quashing the order made on 7th July 1954, dismissing the petitioner. Now, the word 'suspension', according to Oxford Dictionary, means action of debarring or state of being debarred, especially for a time, from a function or privilege; temporary deprivation of one's office or position'' or again state of being temporarily kept from doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, for a time, excluded during the period from his functions or privileges. Such being the concept of a suspension order, suspension with retrospective effect is a contradiction in terms. 6. The question whether the applicant was in service on 3rd January 1956, when the suspension order was passed and could in law be regarded as on duty from 31st January 1954, till 3rd January 1956, is to my mind concluded by the question of the Supreme Court in (S) AIR 1935 SC 600 (A1). In that case a Government servant of Uttar Pradesh was suspended pending an enquiry into certain charges against him. At the con-elusion of the enquiry, an order of dismissal by way of penalty was made against him. He later on filed a suit for a declaration that the order of dismissal was wrongful, illegal, void and inoperative and that he still continued to be a member of the civil service entitled to full pay with all increments as they fell due. He also prayed for a decree for recovery of arrears of salary from the date of the suspension order till 31st December 1947. The Civil Judge decreed the civil servant's suit in part declaring that the order dismissing him from service was illegal and that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring that period was not at all affected by the declaration of the Court that the order of dismissal was illegal. Learned Government Advocate also referred to U.P. Government v. S. Tabarakh Hussain. (S) AIR 1956 All 151 (C) and said that in that case also on the authority of (S) AIR 1953 SC 600 (Al), the claim for arrears of salary for the period from the date of the order of suspension till the date of the order of dismissal was not decreed. It is true that in both these cases, the civil Servants' claim for arrears of salary for the aforesaid period was not decreed. But that was because in each of those cases, the civil servant preferred to give up his claim for arrears of salary from the date of the order or suspension till the date of the order of dismissal and not because of any observation of the Supreme Court to the effect that the suspension of the civil servant during this period was not at ail affected by the order of the Court declaring the order of dismissal as illegal. The Supreme Court no doubt made the observations reproduced earlier while dealing with the claim for arrears of salary from the date of the order of dismissal which was subsequently declared as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom taking the view that when an order of dismissal of a civil servant, who was under suspension, pending enquiry, is declared as illegal, the civil servant must be regarded as on duty from the date of the order of suspension. 8. It was said on behalf of the State that the order dated 3rd January 1956, placing the applicant under suspension as from 31st January 1954, was in conformity with the fact that during this period he did not actually work. If, as I think, when the order of dismissal was declared as illegal by the Madhya Bharat High Court on 16th November 1955, its effect was to restore the applicant in service and to place him, on duty with effect from the date of the order of suspension, then it is no answer to say that during the above period the petitioner did not actually discharge the functions of his office. The fact that the petitioner did not actually work from 31st January 1954, upto 3rd January 1956, cannot revive the suspension which under the decision of the Supreme Court in (S) AIR 1955 SC 600 (Al) could not be revived. 9. As to the learned Government Advocate's preliminary objection that the petition was not maintainable inasmuch as it was in s ..... 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