ivil Appeal No 1821 of 1991
From the Judgment and Order dated 17 4
1990 of the Central Administrative Tribunal Delhi in RA No 11788 in TA No 351 of 1986
OP Saxena and Mukul Gupta for the Appellant
JD Jain Kailash Vasudev Ms Sushma Suri and SN Terdal for the Respondents
332 The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
This appeal is from an order of the Central Administrative Tribunal New Delhi and concerns with the scope of Rule 104 of the Central Civil Service CCA Rules 1965  the Rules  The facts leading to the appeal are these The appellant was a cash clerk in the establishment of Delhi Milk Scheme New Delhi
There was some criminal case connected with the forgery of a cheque in which the appellant was arrayed as an accused
Pending investigation of the criminal case he was placed under suspension
The order of suspension was made on March 27 1976 under Rule 102 of the Rules
On January 10 1976 his services were terminated under Rule 51 of the Central Civil Services Temporary Service Rules 1965
On March 7 1980 the appellant was acquitted in the criminal case
On January 5 1981 the appellant filed a civil suit in the District Court New Delhi challenging the order of termination of his services
The suit was transferred to the Central Administrative Tribunal for disposal
The Tribunal has by its judgment dated September 5 1988 set aside the termination order with the following conditions i The impugned order of termination dated 1011978 is quashed
Consequently status quo ante as in regard to applicant being under suspension will continue from 1011978
ii It will be open to the competent authori ty to take a final decision on the continuance or otherwise of the suspension in the light of the judgment of Chief Judicial Magistrate dated 7380 in case No 572
It will be open to the competent authority to revoke the order of suspension and reinstate the plaintiff into service as cash clerk
In that event the pay and allowances of the plaintiff during the period of his actual suspension from 273 1976 to 10178 and deemed suspension thereaf ter shall be regulated in accordance with the provisions of FR 54 B Necessary adjust ments if any should be made or in regard to the subsistence allowance already paid to him
The defendants shall also consider and decide whether the period of actual and deemed sus pension shall be treated as a period spent on duty or not
333 iii It will also be open to the competent authority if so advised to continue the plaintiff on suspension if it is decided to initiate disciplinary proceedings against him based on his conduct which led to his prosecu tion before the criminal court
The discipli nary proceedings if initiated should be com pleted within a period of six months from the date of communication of this order
iv The competent authority shall take appro priate decision as regards ii and iii above within a period of two months from the date of communication of this order
 Pursuant to the decision of the Tribunal management made an order dated November 10 1988 under Rule 104 of the Rules placing the petitioner under suspension wef January 10 1978
The appellant shall be deemed to have been sus pended from the date of the original order of termination
The management also directed that there should be further enquiry  against the appellant
The relevant portion of the order dated November 10 1988 reads AND whereas the undersigned on a considera tion of the circumstances of the case has also decided that a further enquiry should be held under the provision of CCSCCA Rules 1965 against the said Shri Mohinder Singh exhibit Cash Clerk on the allegation which led to his termination of service
NOW THEREFORE the undersigned hereby i set aside the order of termination of services of Shri Mohinder Singh exhibit Cash Clerk ii directs that further enquiry should be held under the provisions of CCSCCA Rules 1965 against Shri Mohinder Singh on the alle gations of misappropriation of Govt
Money which led to the termination of service
iii directs that the said Shri Mohinder Singh exhibit Cash Clerk shall under sub rule 4 of Rule 10 of the CCSCCA Rules 1965 be deemed to have been placed under suspension wef 101
1978 and shall continue to remain under suspension until further orders
Baldev Chand Disciplinary Authority Dy
General Manager A 334 After holding the enquiry the appellant was again dis missed from service
That order was made on December 1 1989
It is said that the dismissal has been challenged by the appellant before the Tribunal
From the above narration of facts it will be seen that the Tribunal while setting aside the termination order has directed that the appellant shall continue in suspension from January 10 1978
The management while deciding to hold further enquiry has also directed that the appellant shall be deemed to have been placed under suspension wef
Janu ary 10 1978
The management made this order under Rule 104 which reads as follows Where a penalty of dismissal removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disci plinary authority on a consideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal removal or compulsory retirement was originally imposed the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal removal or compulsory retirement and shall continue to remain under suspension until further orders Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case
 There are three requirements for the application of Rule 104 i The Government servant is dismissed removed or compulsorily retired as a measure of penalty ii the penalty of dismissal removal or compulsory retirement is set aside or declared or rendered void by a decision of a Court of Law iii The disciplinary authority decides to hold a further inquiry against the Government servant on the allegations on which the original order of penalty was imposed
If these three requirements are satisfied then the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of original order of penalty of dismissal removal or com pulsory retirements and he shall continue to remain under suspension until further orders
335 The order of the Tribunal and the management as to the retrospective suspension of the appellant cannot be sus tained under Rule 104 of the Rules
It may be relevant to remember that the original order of termination was not passed against the appellant as a measure of punishment
It was a simpliciter termination  of the appellants  service under Rule 51 of the CCS Temporary Service Rules 1965
The Tribunal has set aside that order on the ground that it amounts to punishment and the order of punishment could not have been made without holding an inquiry against the appel lant
But that is not the same thing to state that the management made an order terminating the services of the appellant by way of penalty
The management treated the said order as a simpliciter discharge
Rule 104 therefore has no application to the case of the appellant
Secondly it would be misnomer to call it a further inquiry as contemplated under Rule 104
There was no question of the management deciding to hold a further in quiry since there was no earlier inquiry against the appel lant
The power to place delinquent officer under suspension from the date of the original order of dismissal removal or compulsory retirement from service would be available pro vided if the original order of dismissal removal or compul sory retirement from service was made by way of penalty and that order has been set aside by a Court of law
Since there was no inquiry leading to the removal of the appellant in the first instance the decision to hold fresh inquiry does not attract Rule 104
The retrospective suspension of the appellant is therefore unjustified and without authority of law
However it may be stated that the order of suspension dated November 10 1988 would operate prospectively and the appellant would be entitled to reinstatement with all back wages till that day since the original order of termination has been set aside by the Tribunal
The appeal is accordingly allowed modifying the impugned order
In the circumstances of the case however we make no order as to costs
NPV Appeal allowed


Summary:
Sub section 1 of section 14 Of the  provided  Any property possessed by a female Hindu whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner A suit instituted by the nearest reversioner of K for a declaration that the adoption made by K s widow was invalid was dismissed and during the pendency of the appeal filed against the decree dismissing the suit the  came into force
At the hearing of the appeal the respondent raised the preliminary objection that even if the adoption were held to be invalid the appellant s suit must fail in view of the provisions of section 14 Of the Act under which K s widow who was a party to the suit and the appeal would be entitled to a full ownership of her husband s properties while it was urged for the appellant that section 14 Of the Act did not apply to the facts of the case because the properties were not in the possession of K s widow but were only with the adopted son at the time the Act came into force
Held that the word possession in section 14 Of the  is used in the widest connotation and it may be either actual or constructive or in any form recognised by law
969 Gostha Behari vs Haridas Samanta AIR 1957 Cal
557 approved
In the present case if the adoption was invalid K s widow would be the full owner of K s estate and even if it be assumed that the adopted son was in actual possession of the estate his possession was merely permissive and K s widow must be regarded as being in constructive possession of it through him
Accordingly section 14 was applicable and as K s widow became a full owner of her husband s estate the appellant s suit was not maintainable