Devendra Pratap Narain Rai Sharma vs State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 622 of 1960

Decision Date: 03/11/1961

Coram: J.C. Shah, Raghubar Dayal, J.R. Mudholkar

In this matter, the petitioner Devendra Pratap Narain Rai Sharma challenged the actions of the State of Uttar Pradesh. The judgment was delivered by the Supreme Court of India on 3 November 1961, with Justice J. C. Shah presiding, joined by Justices Raghubar Dayal and J. R. Mudholkar. The case is reported in 1962 AIR 1334 and 1962 SCR Supl. (1) 315, and it has been cited in later authorities such as RF 1963 SC 687, R 1965 SC 1153, E R 1974 SC 130, and RF 1980 SC 1773. The questions involved the applicability of the Public Servants (Dismissal) Act, the effect of a decree of a civil court that set aside a dismissal, the competence of the State to order a fresh enquiry on the same charges, and the entitlement to salary during periods of suspension. The statutory framework referred to includes the Uttar Pradesh Government Fundamental Rules as amended in 1953, rule 54; the Code of Civil Procedure, 1908 (Act V of 1908), Order 2, rule 2; and Articles 226, 310 and 311 of the Constitution of India.

The High Court had set aside the order of dismissal against the petitioner, holding that he had been given a reasonable opportunity to be heard before the penalty was imposed and that, consequently, he should be deemed to have remained in service. After this decision, the petitioner was reinstated, but the High Court awarded him a salary of Rs 76‑11‑0 only up to the date of the original dismissal. For the interval between the dismissal and the reinstatement, he was paid a token amount of Rs 1 only. Subsequently, the petitioner was again suspended and an enquiry was directed against him for alleged dereliction of duty—the same charge that had previously led to his dismissal and reinstatement. The petitioner filed a writ petition in the High Court seeking to quash the order that mandated the new enquiry. He argued that the Government possessed no authority to reopen an enquiry that the High Court had already resolved, and that the State should continue to pay him his full salary with normal increments during the period of suspension, as if he were performing his duties.

The High Court, while agreeing that the second enquiry was not barred by the earlier decision, held that fixing a token salary amounted to a punitive measure that could not be imposed without observing the procedure prescribed by Article 311 of the Constitution. The Court further observed that there was no satisfactory reason for denying the petitioner his full salary. Dissatisfied with this outcome, the petitioner appealed to the Supreme Court by way of a certificate.

The Supreme Court held that, under the circumstances, the State Government was competent to order a fresh enquiry into alleged dereliction of duty by a public servant and to suspend him during that enquiry. The Court explained that when a civil court declares a dismissal invalid, the effect is that the public servant has never been lawfully dismissed; consequently, an order of reinstatement becomes redundant. Moreover, the Court ruled that the authority could not deprive the public servant of the remuneration he would have earned had he been allowed to remain in service, emphasizing that the dismissal set aside by the civil court could not be treated as a lawful termination. This reasoning underpinned the Court’s conclusion that the State’s actions in directing a new enquiry and suspending the petitioner were within its powers.

It was held that Rule 54 of the Fundamental Rules of the Uttar Pradesh Government authorised the State Government to fix the salary of a public servant when a dismissal was set aside in a departmental appeal. However, the rule did not apply in situations where a civil court declared a dismissal invalid and consequently reinstated the public servant. The Court observed that the decisions in Dwarkachand v. State of Rajasthan, I.L.R. (1957) Raj 1049; Nanak Chandra Bairagi v. Superintendant of Police, Sibsagar, I.L.R. (1955) Assam 191; and Mohan Singh Choudhri v. Divisional Personnel Officer, Northern Railway, Ferozepore Cantt., I.L.R. (1957) Publ. 1883 were not applicable to the present case. The judgment was recorded under the heading “Civil Appellate Jurisdiction: Civil Appeal No. 622 of 1960, appealed from the judgment and order dated 12 February 1960 of the Allahabad High Court (Lucknow Bench) in Writ Petition No. 228 of 1959.” Counsel for the appellant were M. Lall, E. Udyarathnam and S. S. Shukla, while counsel for the respondents were C. B. Agrawalla and C. P. Lal. The judgment was delivered on 3 November 1961 by Justice Shah.

In the facts, the appellant, Devendra Pratap Narain Rai Sharma, served as an Inspector Qanungo in the Revenue Department of Uttar Pradesh in 1951 and was selected on probation for the post of Tehsildar. By an order dated 21 April 1952, the Collector of Jhansi suspended him and initiated an enquiry on allegations of misconduct. In June 1952, the Collector recommended that the appellant be reverted to the rank of Naib Tehsildar, but the Land Reforms Commissioner advised the State Government to dismiss him. The State Government accepted this advice and issued a dismissal order on 16 September 1953. The appellant challenged the dismissal by filing Suit No. 163 of 1954 in the Civil Court of Lucknow, contending that he had not been given an opportunity to defend himself or to show cause. The Civil Judge dismissed the suit; however, the Allahabad High Court reversed that decision, holding that the appellant was denied a reasonable opportunity before any penalty recommendation or punishment, thereby violating the protection guaranteed by Article 311 of the Constitution. The High Court set aside the civil decree, declared the dismissal order of 16 September 1953 void, inoperative and illegal, and directed that the appellant be deemed to remain in service. Consequently, the Government of Uttar Pradesh issued a notification on 30 March 1959 reinstating him to his original post of Tehsildar. He assumed charge at Tehsil Puranpur in District Pilibhit on 28 April 1959.

After taking charge of his office on 28 April 1959, the appellant sought from the Accountant General of Uttar Pradesh the payment of salary arrears and the allowances that were due to him. In a letter dated 18 May 1959, the Accountant General responded that the appellant was entitled to receive pay and allowances effective from the date he assumed office, namely 28 April 1959. The letter further explained that, with respect to the arrears covering the period from 21 April 1952 to 28 April 1959, the Accountant General had referred the matter to the State Government to obtain clarification on the terms and conditions of the appellant’s reinstatement, and that appropriate action would be taken once the Government supplied the necessary instructions. Subsequently, the appellant was again suspended by an order issued on 11 July 1959 by the Board of Revenue, which required him to surrender charge of his post to the Naib Tehsildar of Tehsil Puranpur. On 24 July 1959 the Board of Revenue issued a further order fixing the appellant’s salary for the interval from 21 April 1952 up to the date he resumed his duties as Tehsildar. The order specified that, for the period extending from 21 April 1952 until the date of the dismissal order, the appellant’s remuneration would be limited to the subsistence allowance of Rs 76 11⁄12 per month that he had already been receiving. For the period beginning the day after the dismissal order and continuing until he again took charge of his duties as Tehsildar, the Board fixed a token salary of Rs 1 per month. In addition, the appellant was informed that the entire interval of his dismissal, i.e., from 21 April 1952 to the date he resumed his office, would be regarded as “on duty” for the purpose of calculating his pension. Dissatisfied with these arrangements, the appellant filed a petition on 25 August 1959 before the High Court at Allahabad under Article 226 of the Constitution. He prayed for a writ that would set aside the order directing an inquiry into allegations concerning his conduct as Tehsildar at Garautha in District Jhansi, and for a direction that would annul the suspension order dated 11 July 1959. He further sought an order allowing him to receive his full salary and all applicable allowances with all increments, a total amount claimed to be Rs 27,238 10⁄12, and requested that the Accountant General issue pay‑slips at a rate of Rs 325 per month from the date he took charge, together with dearness and house allowances and any further increments due under the scale of Rs 200‑10‑250‑15‑400. Moreover, he asked that the respondents issue orders confirming his appointment with effect from 19 April 1953. In his petition the appellant contended that the Government of Uttar Pradesh lacked the authority to reopen the inquiry that had already been concluded by the High Court of Allahabad, and that the State was bound to pay him salary, increments and allowances for the period of his suspension as if he had remained on duty throughout that interval. He further maintained that, by operation of the earlier judgments, he should be deemed to have been confirmed in the post of Tehsildar and therefore entitled to the full salary corresponding to that grade.

In this matter, the appellant asserted that he should be deemed to have occupied the post of a Tehsildar and, as a result, to be entitled to receive the salary that attaches to the grade of Tehsildar. The High Court examined this claim and concluded that the second enquiry initiated by the Board of Revenue against the appellant was not barred by the earlier decision of the Court. Consequently, the High Court held that the appellant could not be considered to have been confirmed in his position with effect from April 1953. Further, the High Court observed that the appellant had failed to assert a claim for salary covering the period from April 21 1959 to November 24 1954 in the civil suit that he had filed; the Court therefore inferred that the appellant had, by his own conduct, relinquished any entitlement to that portion of the claim.

The Court then turned to the question of salary for the interval from November 24 1954 to April 28 1959. It held that the Board of Revenue’s fixing of a token salary of one rupee per month for the appellant amounted to a punitive measure. Such a punishment, the Court said, could not be imposed without observing the procedure prescribed by Article 311 of the Constitution. In the view of the High Court, once the appellant had been reinstated, there was no justification for denying him his full salary up to July 14 1959, which was the date on which he continued to discharge the duties of a Tehsildar after his reinstatement. Nonetheless, the High Court qualified its direction by stating that a writ of mandamus could only compel the opposite parties to act in accordance with law. Accordingly, the Court ordered that the order set out in annexure 11 be set aside and directed the State Government to reconsider the matter in light of the applicable rule, after providing notice to the petitioner and hearing his arguments.

In addition, the High Court held that the appellant was not entitled to any salary higher than the basic rate and that there was no evidence showing that he had earned any annual increment or that he had satisfied the efficiency criteria required for such an increment. The High Court’s order therefore partially allowed the petition and instructed the State Government to revisit the issue of pay and allowances due to the appellant for the period from November 24 1954 to April 28 1959. The appellant appealed this order, obtaining a certificate of fitness under Articles 132(1) and 133(1)(b) of the Constitution.

The Supreme Court, after reviewing the matter, expressed the view that the State Government possessed the competence to direct a fresh enquiry into alleged dereliction of duty by the appellant, even though the alleged dereliction related to a period during which earlier proceedings had been initiated and the appellant had subsequently been dismissed from service. The Court observed that the appellant had not been exonerated by the High Court in the earlier proceedings with respect to the misconduct alleged against him, and that the charge examined in the second enquiry differed from the charge examined in the first enquiry. The Court also noted that, in the suit challenging the order of the first enquiry, the High Court had expressly observed that it had not expressed any opinion on the question of misconduct or the punishment. The suit filed by the appellant was decreed solely on the ground that he had not been given a reasonable opportunity to show cause against the charge and the punishment proposed to be imposed upon him.

The authorities that the counsel for the appellants relied upon – namely Dwarkachand v. State of Rajasthan, Nanak Chandra Bairagi v. Superintendent of Police, Sibsagar and Mohan Singh Chaudhari v. Divisional Personnel Officer, Northern Railway, Ferozepore Cantt – do not sustain the submission that the second inquiry is barred in the present circumstances. An adjudication on the merits by a quasi‑judicial body may or may not preclude the commencement of another inquiry concerning the same subject matter, but the point for consideration here is the scope of the order passed by the High Court. The binding force of a judgment is determined not by technical form but by its substantive effect. In the appeal filed by the appellant in suit No. 163 of 1954, the High Court did not acquit the appellant of the alleged misconduct; rather, it decreed the suit on the ground that the procedure employed to impose the penalty was irregular. Such a procedural decree cannot stop the State from instituting another inquiry into the same subject matter, consistent with the provisions of Articles 310 and 311 of the Constitution. The case of Dwarkachand involved a public servant who had been exonerated in a prior inquiry, while in Mohan Singh Chaudhari a civil court’s declaration that a dismissal order issued by an unauthorised officer was illegal was held to bind all parties in proceedings under Article 226 until that decision was set aside according to law. In Nanak Chandra’s case, the Governor’s exercise of his power of revision to set aside a censure order and dismiss the public servant was not characterised as a second departmental inquiry. Consequently, none of these precedents support the proposition that, once a civil court quashes an order of inquiry imposing a penalty, no further proceeding may be launched against the public servant, particularly where the merits of the charge were never examined in the proceeding that resulted in the quashal.

If the State Government possessed the competence to order a fresh inquiry, there is no reason to conclude that it lacked authority to direct the appellant’s suspension pending that inquiry. The High Court, while addressing the appellant’s claim to salary during his suspension in the earlier inquiry, observed that there was no justification for denying the appellant his full pay for the period after the suit’s filing date. Nonetheless, counsel for the State of Uttar Pradesh contended that, notwithstanding the direction, the State could award remuneration for the suspension period based on a reconsideration of the matter in light of the applicable rules. This argument was rejected as fundamentally misconceived. The relevant provision, Rule 54 of the Fundamental Rules framed by the State of Uttar Pradesh under the authority conferred by Article 309 of the Constitution, as amended in 1953, requires that when a government servant who has been dismissed, removed or suspended is reinstated, the competent authority must specifically determine the pay and allowances for the period of absence and decide whether that period shall be treated as service. Hence, the State’s power to determine remuneration is bounded by the explicit terms of Rule 54 and cannot be exercised arbitrarily.

After the appellant was heard, the State Government asserted that it was justified in taking the action it proposed. The counsel for the State argued that this authority derived from Rule 54 of the Fundamental Rules that the State of Uttar Pradesh had framed pursuant to the power given under Article 309 of the Constitution. The counsel further maintained that the High Court had directed the State Government to reconsider the matter because Rule 54 was applicable, and that the direction to revisit the question of remuneration was based on that rule. The Court, however, found this submission to be entirely mistaken. It set out the text of Rule 54, as amended in 1953, which reads: “(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, together with any allowances he was receiving before his dismissal, removal or suspension. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as the 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 the competent authority specifically directs that it shall be so treated for any specified purposes.”

The Court observed that this rule does not apply to a situation like the present case, where a civil court has declared the dismissal of a public servant to be invalid and has ordered his reinstatement. While Rule 54 certainly enables the State Government to determine the pay of a servant whose dismissal is set aside in a departmental appeal, the present circumstances differ because the dismissal was overturned by a civil suit, not by an internal departmental proceeding. The decree of the civil suit meant that the appellant could never be regarded as having been lawfully dismissed from service, rendering the reinstatement order merely formal and unnecessary. The civil court’s adjudication declared that the appellant had been wrongfully prevented from performing his official duties. Consequently, the Court held that it would be impermissible for the authority to deny the appellant the remuneration he would have earned had he been allowed to work. The High Court had previously addressed the appellant’s claim for salary, but the present analysis concluded that the State’s attempt to fix the salary on the basis of Rule 54 was unfounded.

The Court observed that the High Court had denied the appellant’s request for payment of salary for the period preceding the filing of the suit. It noted that the High Court had relied on the prohibition contained in Order 2, Rule 2 of the Civil Procedure Code; however, the Court pointed out that this rule might not be applicable to a petition for a high‑prerogative writ filed under article 226 of the Constitution. Nevertheless, because the High Court had already refused the appellant’s claim for salaries accrued before the suit’s commencement, the Court held that it was not justified in interfering with the discretionary judgment exercised by the High Court. Consequently, the Court affirmed and confirmed the order of the High Court. The Court further stated that the State’s attempt to fix the remuneration of a public servant who had been wrongfully prevented from performing his duties, even after his reinstatement following a civil court’s declaration that his dismissal was unlawful, was wholly unjustifiable. Since the appellant’s principal relief—that is, the claim for back‑salary—was not granted, the Court concluded that no order as to costs should be made against any party throughout the proceedings.