9911796707
TMI Blog1963 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately before the transfer of power, which took place on August 15, 1947. The same guarantee was extended to the appellant and all members of what were the Secretary of State's Services before August 15, 1947 by Art. 314 of the Constitution. As the appellant's case is based on 'that Article we may set it out: Except as otherwise expressly provided by this Constitution, every person who having been appointed by the Secretary. of State or Secretary of State in Council to a civil. service of the Crown in India continues on and after the commencement of this Constitution to serve under the Government of India or of a State shall be entitled to receive from the Government of India and the Government of the State, which he is from time to time serving, the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement. We shall hereafter refer to such a person as a member of the (former) Secretary of State's Services. It appears that the appellant was in the Indian Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consequence thereof the appellant remained under suspension. The appellant filed a writ petition -in the Punjab High Court on February 16, 1962, challenging this order of suspension. His contention was that he was entitled to. the guarantee contained in Art. 314 of the Constitution and the order of suspension passed against him violated that guarantee and was therefore ineffective and invalid. He relied for this purpose on r. 49 of the Appeal Rules, which provided for suspension as a penalty. He contended that the Appeal Rules which governed him and which must be held to have continued to govern him in view of the guarantee contained in Art. 314 provided for suspension as a penalty only and that there was no provision anywhere in any rule or statute immediately before January 26, 1950 on which date the Constitution came into force, providing for suspension otherwise than as a penalty. Therefore it was not open to the Governor to suspend him in the manner in which he did so in the present case, though it was not denied that he could be suspended pending criminal proceedings provided the suspension was as a penalty under r. 49 of the Appeal Rules; on the other hand mere suspensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retary of State's Services in respect of disciplinary matters and stress was laid on the words or rights as similar thereto as changed circumstances may permit appear ing therein. It was also urged that suspension pending departmental enquiry or pending a criminal case was not the same thing as suspension by way of punishment and that previous to January 26, 1950, there could be suspension pending departmental enquiry or pending a criminal case and that no appeal lay from such suspension even then. It was also urged that suspension pending a departmental enquiry or pending a criminal case was not a disciplinary matter at all and was therefore not included within the sweep of Art. 314 and in any case the rule relating to suspension even if it is connected with disciplinary matters was liable to variation as changed circumstances might demand and r.7 was framed in view of the changeed circumstances. It was also urged that removal of suspension as a penalty under r. 3 could not affect the guarantee contained in Art. 314, for the effect of such removal was that there could be in future no penalty of suspension. against a member of the Indian Administrative Service. Therefore a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has also challenged rr.3 and 10 of the Discipline Rules which do not deal with suspension at all. In these circumstances we do not propose to consider the vires of rr. 3 and IO, for that does not fall for decision as the order which is challenged has not been made under r. 3 and relates only to suspension. It is therefore unnecessary to decide whether rr. 3 and 10 can in the changed circumstances apply to those members of the Indian Administrative Service who were at one time members of the Indian Civil Service. We shall therefore express no view one way or the other on the vires of r. 3 and r. 10 and consider only r. 7 which deals with suspension. We should also like to make it clear that what we say during the course of' this judgment with respect to suspenion refers only to those members of the Indian Administrative Service who became members thereof under r. 3 (a) and (b) of the Recruitment Rules and not to other members of the Indian Administrative Service who were not members before 1947 of the Indian Civil Service, for it is only the former kind of members of the Indian Administrative Service who are entitled to the protection of Art. 314 and the whole cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pre-existing rights as the changed circumstances resulting from constitutional changes may allow. As an illustration take a case where a member of a Secretary of State's Service could before August, 1947, be dismissed only by the Secretary of State; but after the transfer of power and the coming into force of the Constitution, circumstances have changed and there is no Secretary of State, therefore we have to look to the changed circumstances and find out which would be the authority to dismiss such a member in the changed circumstances. If we do so, we find that the Government of India can be the only authority which now in the changed circumstances will have the power to dismiss such a member in the absence of a specific provision of law in force before January 26 , 1950. These words do not mean that as time passes circumstances change and therefore new rules may be framed to meet the new circumstances due to passage of time. The words changed circumstances in Art. 314 only refer to the constitutional changes which occurred after the transfer of power in August, 1947, and the coming into force of the Constitution in January 1950. Further, Art. 314 provides that the protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ults in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow where the acquittal is other than honourable. The usual practice is that where a public servant is being tried on a criminal charge, the Government postpones holding a departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial. Therefore, suspension during investigation, enquiry or trial relating to a criminal charge is also in our opinion intimately related to disciplinary matters. We cannot therefore accept the argument on behalf of the respondent that suspension pending a departmental enquiry or pending investigation, enquiry or trial relating to a criminal charge is not a disciplinary matter within the meaning of those words in Art. 314. Before we investigate what rights a member of the former Secretary of State's Services had with respect to suspension, whether as a punishment or pending a departmental enquiry or pending criminal proceedings, we must consider what rights the Government has in the matter of suspension of one kind or the other. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the General Clauses Act, No. X of 1897, which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general right of the employer (namely, the Secretary of State who was the appointing authority) to suspend an employee (namely, a member of one of the former Secretary of State's Services). Suspension in s. 247 (2) cannot in our opinion be confined only to suspension as a penalty. The words are general and must be given their full meaning and would include any kind of suspension, whether as a penalty or otherwise; and this power vested firstly in the Secretary of State or the Secretary of State in Council, as the case may be, under the general law of master and servant and also in the Governor-General and the Governor, as the case may be, by virtue of this provision of the statute. Further s. 247 (3) also provided for remuneration of a suspended member of one of the former Secretary of State's Services and laid down that if any such person as aforesaid is suspended from office, his remuneration shall not during the period of his suspension be reduced except to such extent, if any, as may be directed by the Governor-General exercising his in dividual judgment or, as the case may be, by the Governor exercising his individual judgment . Besides this statutory provision relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before 1947 is not correct. It is equally clear that where suspension before 1947 was an interim measure and not as a punishment under r. 49, there was no question of any appeal from such an interim suspension pending a departmental enquiry or pending a criminal proceeding. If the position on January 25, 1950, stood as it was on August 13,1947, the appellant could not susbstantially challenge the order of the Governor passed on July 18, 1959, for it would have been covered by s. 247(3) of the Govemment of India Act, 1935, and the appellant could not claim anything more under Art. 314 of the Constitution. But Art. 314 does not speak of the protection which members of the All India Services had on August 13, 1947; it speaks of protection which they had immediately before the commencement of the Constitution i.e. on January 25, 1950, and that brings us to a consideration of the changes that took place between 1947 and 1950 after the transfer of power on August 15, 1947. The effect of the transfer of power on the Secretary of State's Services in particular came up for consideration before this Court in State of Madras -v. K.M. Rajagopalan(1) and it was held that the conferral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concerned. On August 14, 1947, however, the India Provisional Constitution) Order, 1947, was promulgated as G.G.O. 14. By that Order, s. 247 of the Government of India was substituted by a new section and sub-ss. (2) and (3) thereof to which we have already referred were repealed. The substituted s. 247 read as under: Conditions of service of persons orginally recruited by Secretary of State-The conditions of service of all persons who, having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India, continue on and after the date of the establishment of the Dominion to serve under the Government of the Dominion or of any Province, shall (a) as respects persons serving in connection with the affairs of the Dominion, be such as may be prescribed by rules made by the Governor-General; (b) as respects persons serving in connection with the affairs of a Province (i) in regard to their pay, leave, pensions, general rights as medical attendance and any other matter which immediately before the establishment of the Dominion was regulated by rules made by the Secretary of State, be such as may be prescribed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment and it was the Government of India which decided ,that all such officers should continue except those whom the Government of India, was not prepared to invite to continue and in the case of this limited class the Government of India agreed to compensation. It was in consequence of this agreement between the Government of India and His Majesty's Government that s. 10 of the Independence Act provided that those officers -who continued would have the same conditions of service etc. as they were entitled to immediately before August 14, 1947. The Governors of Provinces were nowhere in the picture in this matter and we can see (1) [1955] 2 S.C.R. 541. no warrant for holding that the appointment must be deemed to be by the Governors of Provinces where such officers were serving in connection with the affairs of a Province. It is true that the Indian Administrative Service as an allIndia Service was legally and formally constituted in 1951. It is also true that under s. 10 of the Indian Independence Act members of the former Secretary of State's Services continued on and after August 14, 1947, to serve under the Government of either of the new Dominions or of any Province ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, it was the Government of India which took the final decision whether to continue such officers or not. It is true that in so doing it consulted the various Provincial Governments and was to a large extent guided by the views of the Provincial Governments, particularly in connection with such officers who were serving in connection with the affairs of the Provinces; even so, as the facts in Rajagopalan's case(1) show, the final decision whether to continue or not a member of the former Secretary of State's Services was taken by the Government of India. In these circumstances it would in our opinion be reasonable to hold that in the case of the members of the former Secretary of State's Services it was the Government of India which must be deemed to have appointed them after the conferral of Independence on India to the respective posts which they were holding whether under the Government of India or under the Governments of Provinces. This conclusion is reinfored by the fact that the system in force before 1947 was that all members of the Secretary of State's Services were assigned to one Province or other and from them such members as were necessary used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment of India Act which is not a deeming provision and therefore we have to look to Art. 7 (1) to find out by whom the appointments must be deemed to have been made in these of the members of the former Secretary of State's Services. As Art. 7 opens with the words subject to any general or special orders or arrangements affecting his case (i.e. each individual officer's case), it must be held in view of the history which is elaborately set out in Rajagopalan's case(-) that so far as members of the former Secretary of State's Services were concerned, it was the Government of India who must be deemed to have made the appointments in view of the special orders and arrangements with respect to such officers. Reliance in this connection was also placed on the amendment of s. 240 (2) of the Government of India Act by the same G.G.O. Section 240 (2) as it originally stood provided that no such person as aforesaid (meaning thereby a member of a civil service of the Crown in India or a person holding any civil post under the Crown in India) shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed . Amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances was, the Government of India, as an interim measure pending a departmental enquiry or pending a criminal proceeding, but there was no power in any other authority to pass such an order of interim suspension, for as we have already indicated the power under s. 247 (2) was repealed by G.G.O.14 of August 14. 1947. Besides this power of interim suspension otherwise than as a punishment, the power to suspend as punishment continued under r. 49 of the Appeal Rules and an order of suspension made in exercise of that power was subject to appeal under r. 56 etc., thereof So far as payment during the period of interim suspension or during the period of suspension as a penalty is concerned, s. 247 (3) had disappeared and therefore the general provision contained in F.R. 53 applied. That general provision has made some distinction between the members of the Indian Civil Service and others; but that is a matter of detail, in which it is unnecessary to go. So the position immediately before the commencement of the Constitution was that members of the former Secretary of State's Services could be suspended either as an interim measure pending departmental enquiry or pending criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is that the appellant was suspended not as a -punishment but that the order of suspension was passed by the Governor as an interim measure which he could do either pending a departmental enquiry or pending a criminal charge. The appellant has thus been suspended by the order of July 18, 1959, not as a punishment but as an interim measure pending a criminal charge against him; and this is what practically in terms the order says, for it places the appellant immediately under suspension because a criminal case was pending against him. But as we have already pointed out the power to pass an order of interim suspension in the case of a member of the former Secretary of State's Services on January 25, 1950, was only in the appointing authority, (namely, the Government of India). The power to suspend a member of the Indian Administrative Service which the appellant became by virtue of r. 3 of the Recruitment Rules as punishment has disappeared from r. 3 of the Discipline Rules 1955. The appellant therefore could not be suspended by the Governor as an interim measure and such suspension could only be by the Government of India. The proper procedure therefore in a case where the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Governor dated July 18, 1959, purporting to be passed under r. 7 (3) of the Discipline Rules is without authority and must be set aside. This brings us to the question of relief to be granted to the appellant. it appears that on September 11, 1963, the Governor passed an order by which he reinstated the appellant for the period from July 18, 1959, to April 4, 1963, and granted him his full emoluments for that period. The writ petition in the present case was filed in February 1962. So the appellant is apparently not entitled to any further relief in the matter of his emoluments besides what has been granted to him by the Governor. The order of reinstatement contained therein is unnecessary in view of our decision and the order granting full emoluments may be taken to be in pursuance of our judgment. We therefore allow the appeal and declare r. 7 of the Discipline Rules insofar as it applies to members of the Indian Administrative Service who are members thereof by virtue of r. 3 (a) and (b) of the Recruitment Rules to be bad to the extent to which it permits an authority other than the Government of India to suspend as an interim measure (and not as a punishment) such mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, permitted as he was entitled to immediately before 'the commencement of the Constitution. He further contends that sub-s. (2) of s. 10 of the Independence Act guaranteed to him the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances permitted, as he was entitled to immediately before the appointed day. It was further contended, during the course of the submissions in Court, that though prior to the appointed day an order of suspension during the pendency of a departmental enquiry or of a criminal charge could have been made only by the Governor-General or the Governor, such an order thereafter and till January 26, 1950 could be made only by the Governor-General, and that therefore such a suspension order subsequent to the commencement of the Constitution could be made by the Union Government and not by the Government of Punjab and that for this reason too, r. 7 of the Discipline Rules empowering the State Government to make an order of such suspension violates art. 314. I need not discuss the various points on which I agree with my learned brother Wanchoo, J. I agree that the expression 'changed circumstances& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing immediately before the appointed day under the Madras Government. I now deal with the question of the authority which should be taken to be the appointing authority for persons who had been appointed by the Secretary of State to the Civil Services or to any post under the Crown and who continued to serve the Government after the appointed day. To determine this question it is necessary to consider the following matters: (1) Did the Service known as the Indian Civil Service, whose members were to be recruited by the Secretary of State for India in view of s. 244 (1) of the Government of India Act, cease to exist on and from the appointed day and, if so, whether any other AR India Service took its place immediately after it had ceased to exist? (2) If it ceased to exist, were the services of the members of the Indian Civil Service terminated immediately before -the appointed day? (3) Which members of the Service continued in service of the Government on or after the appointed day. (4 ) Whether those who so continued did so on account of their becoming servants of the new Government under the provisions of any Act, or their continuance in service was on account of their fresh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day The Governor-General, in the exercise of the powers conferred on him by s. 9 made the India (Provisional Constitution) Order, 1947 (G.G.O. 14 of 1947), hereinafter called the Provisional Constitution Order. Article 7(1) of this Order is: Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor General or Governor General in Council or of a province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province. Sub-section (1) of s. 241 of the Government of India Act, as modified by this Order, reads: Except as expressly provided by this Act, appointments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be mentioned that subsequent to June 3, 1947, the Government of India made enquiries through the Provincial Governments from the members of the Secretary of State's Services, including the Indian Civil Service. about their desire to continue in service of the Government after the transfer of power and also made enquiries from the Provincial Governments themselves about their readiness to retain those officers in service who expressed their desire to continue in service. This Court had occasion to discuss the effect of the steps taken by the Government of India prior to the appointed day and of the provisions of the Independence Act and the Provisional Constitution Order in Rajagopalan's case(1) Rajagopalan was a member of the Indian Civil Service and was serving in the Province of Madras till August 14, 1947, when his services were terminated, though he had expressed his willingness to continue in the service of the, Govern.ment of Madras on and after the appointed day. What this Court directly held and observed in connection with the points urged before it in that case would be mentioned at appropriate places in discussing the five points I have formulated earlier. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and that those who were made members of the Service became members of such Service in 1954. If the Indian Administrative Service had been set up to replace the Indian Civil Service immediately on the appointed day and the erstwhile members of the Indian Civil Service had become its members, the provisions of r. 3 (a) and (b) would have been different from what they are. This indicates that the Indian Administrative Service did not take the place of the Indian Civil Service automatically after the changeover on the appointed day and that therefore the members of the Indian Civil Service who continued in service did not continue so as members of any All India Service. The Viceroy's announcement dated April 30, 1947, makes no mention of any All India Service replacing the Indian Civil Service immediately on the transfer of power though it specifically mentioned in para 8 about the giving of all possible help to the Government of India in building up the new Services and to the members of the Secretary of State's Services continuing to serve under the Government in India after the transfer of power. The provisions of art. 7(1) of the Provisional Constitution Order also do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguage used in Arts. 374, 376, 377 and 378 of the Constitution which provide for certain persons holding office immediately before the commencement of the Constitution becoming, on such commencement, holders of corresponding posts on such commencement. The language is also different from that of Art. 375 of the Constitution which deals with the continuance of courts, authorities and officers after the commencement of the Constitution and reads: All courts of civil, criminal and revenue jurisdiction, all authorities and all officers, judicial, executive and ministerial, throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of this Constitution. There is no such expression in this article which would indicate that any of these officers had to be freshly appointed or would be deemed to have been appointed to their respective posts on the commencement of the Constitution. The language of art. 7(1) of the Provisional Constitution Order correspond to some extent to that of s. 58 of 21 22 Vic. Cap. CVI, 1858, an Act for the better Government of India, which was passed when the .,Government of India was transferred to H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Secretary of State's Services who were holding posts in connection with the affairs of a Province would therefore be appointed to the corresponding posts, on the appointed day, by the Governor of that Province, as only he could have made appointments to those posts. It is to be noticed that art. 7(1) of the Provisional Constitution Order refers to appointments to posts and not to appointments to Services and that even prior to the appointed day the appointments, to the various posts in the Provinces, of members of All India Services allotted to the cadre of the Provinces were also made by the Governor and not by the GovernorGeneral. In this respect, with regard to all appointments to posts in connection with the affairs of the Provinces there had been really no ,change. It is contended for the appellant that his deemed appointment to the post corresponding to the post he had held on August 14, 1947, was by the GovernorGeneral or the Government of India. Article 7(1) of the Provisional Constitution Order does not expressly provide so. Section 241 of the Act did not authorize the Governor-General to make appointments to posts in connection with the affairs of the Provinces. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s documents in connection with the steps taken for the setting up of the two Dominions and that only those officers continued in service whom the Government of India invited to continue and that those who were not so invited were to be paid compensation. It is not clear from the antecedent circumstances that it was the Government of India which decided about the continuance in service of such officers of the Secretary of State's Services who had been prior to the changeover serving under the Government of a Province. Even if it was the Government of India which was to decide and invite the officers to continue, such a decision and invitation cannot amount to its appointing those officers to the various posts in connection with the affairs of a Province, in view of s. 241 of the Act. of course, negotiations with respect to the services took place between the Government of India and His Majesty's Government. A Provincial Government could not have continued such negotiations. I do not find any specific mention in any of the documents referred to in Rajagopalan's Case'') to the effect that it was the Government of India which decided which officers were to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been contemplated during the negotiations between the Government of India and His Majesty's Government. There was no other choice open to the members of the Secretary of State's Services who were serving under the Government -of a: Province when their services automatically came to an end and when they desired to continue' in Government service. Their wishes were ascertained in the context of what was taking place. They knew of the; announcement by the Viceroy dated April 30, 1947. It was only with their consent that their services were continued after the changeover. They can therefore have no grievance for being appointed to provincial services or posts under the Provincial Governments and naturally, under its administrative control. In fact, even prior to the changeover, such persons had been under the administrative control of the Provincial Government. This Court, in Rajagopalan's Case(1), refers at p. 551 to the Government of India asking the Provincial Govemments, by its letter dated June 18, 1947, to state, when forwarding the replies from the individual officers, about their willingness or otherwise to continue in service, whether for any reason they Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no necessity of obtaining prior approval of the Government of India to retain such officers in service. I am therefore of opinion that such members of the Secretary of State's Services who were holdingposts under a Provincial Government immediately before the appointed day and continued in service on and after the appointed day are to be deemed to be appointed to the corresponding posts by the Governor of the Province, in view of the provisions of s. 241 of the Act. The appellant was serving under the Madras Government immediately before the appointed day. He will therefore be deemed to be appointed by the Governor of the Province of Madras to the post he was holding on the appointed day. The Governor of the Province was his appointing authority and therefore he could be suspended on the day immediately before the commencement of the Dominion by the Governor of the Province where he might have been then serving. He can at best claim protection of his right of not being suspended pending departmental enquiry or of a criminal charge by any authority of a lower rank. Rule 7 of the Discipline Rules does not provide for such suspension of a person who had been a member of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
