ivil Appeal No 1659 of 1990
From the Judgment and Order dated 3112
1987 of the Andhra Pradesh Administrative Tribunal Hyderabad in Repre sentation Petition No 3339 of 1987
K Madhava Reddy TVSN Chari Ms Sunita Rao and Ms Manjula Gupta for the Appellants
HS Guru Raja Rao Vimal Dave and B Rajeshwar Rao for the Respondent
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
Special leave granted
The respondent in this appeal K Ratnagiri was at the material 235 time Circle Inspector of Police attached to Sanjeeva Reddy Nagar Police Station Hyderabad
In that police station one U Narasimha died in Police lock up
Pending prosecution with regard to that offence the Director General of Police made an order keeping the respondent under suspension
The order reads Shri K Ratnagiri Circle Inspector of Police Sanjiva Reddy Nagar PS Hyderabad is placed under suspension with immediate effect in public interest until further orders pending prosecution against him in the case of death of U Narasimha in Police lock up
The respondent appealed to the Andhra Pradesh Adminis trative Tribunal
The Tribunal has set aside the suspension order holding that the respondent shall be deemed to be in service from the date of issue of suspension order
The Tribunal however has reserved liberty to the Government to transfer him to any other Police Station
It has been held that the order of suspension becomes invalid after the period of six months since the Government did not make a fresh order extending the period of suspension
It has been further stated that the Director General has no power to keep the respondent under suspension pending investigation of the case against him
Both these conditions are rested solely on the scope of Rule 131 of the AP Civil Service CCA Rules 1963
For immediate reference we may set out the Rule hereunder 131 A member of service may be placed under suspension from service pending investigation or enquiry into grave charges where such suspension is necessary in the public interest
Provided that where a member of a service has been suspended by an authority other than the Government and the investiga tion has not been completed and the action proposed to be taken in regard to him has not been completed within a period of six months of the date of suspension the fact shall be reported to the Government for such orders as they may deem fit
132 to 134 xxx xxx xxx 135 An order of suspension made or deemed to have been made under this rule may at any time be revoked by 236 the authority which made or is deemed to have been made the order or by any authority to which that authority is subor dinate Rule 131 provides power to keep an officer under suspen sion from service pending investigation or enquiry into grave charges where such suspension is necessary in the public interest
Proviso thereunder requires the authority who made the order of suspension to report to the Government where the investigation into the charges and the action proposed to be taken against the officer has not been com pleted within the period of six months from the date of suspension
Upon receipt of the report the Government may make such orders as they deem fit having regard to the circumstances or development in the case
Proviso thus imposes only an obligation on the authority to report to the Government but it does not limit the period of suspension
It does not state that the suspension order comes to an end by the end of six months
It may be noted that the suspen sion order is not an interim suspension
Nor the Rule 131 limits its operation only for six months
Rule 135 pro vides that the order of suspension may at any time be revoked by the authority who made or is deemed to have been made the order or by any authority to which that authority is subordinate
That apparently suggests that the order of suspension once made will continue to operate till it is revoked by an appropriate order
Therefore there appears to be no justification to contend that the order of suspension would not last beyond six months
It has been passed by the competent authority who shall report to the Government if the action is not completed within six months
The Govern ment may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority
Similar was the view expressed by this Court in Civil Appeal No 1064 of 1990 in Government of APv
V Sivaraman disposed of on 12 January 1990 to which one of us was a party K Jagannatha Shetty
There it was observed Where the rules provide for suspending a Civil servant and require thereof to report the matter to the Government giving out reasons for not completing the investigation or enquiry within six months it would be for the Government to review the case but it does not mean that the suspension beyond six months becomes automatically invalid or non est
The only duty enjoined by such a rule is that the officer 237 who made the order of suspension must make a report to the Government and it would be for the government to review the facts and circumstances of the case to make a proper order
It is open to the Government to make an order revoking the order of suspension or further continuing the suspension
The Order of suspension however continues until it is revoked in accordance with the law
 It was also observed That the order of suspension will continue till it is revoked though it is necessary to review the case once in six months in the light of the instruction 18 contained in Appendix VI of the APCS CCA Rules 1963 and the circular of the Chief Secretary dated February 13 1989
 The opposite view taken by the tribunal in the instant case therefore cannot be sustained
This brings us to the second conclusion reached by the Tribunal to invalidate the order of suspension
Precisely it is also rested on the statutory framework of Rule 13I coupled with the terms of the order by which the respondent was kept under suspension
The Tribunal has observed that Rule 131 empowers the authority to make an order of sus pension pending investigation or enquiry into charges but not pending prosecution with regard to the charges
It seems to us that the Tribunal has taken a hypertech nical view of the matter
The factual background of the case may now be shortly stated On 10 July 1986 U Narasimha died in the police custody of Sanjeeva Reddy Nagar Police Station where the respondent was then working as a Circle Inspector of Police
Next day morning the infuriated mob attacked the Police Station and there was similar attack at the Bodabanda Outpost in whose limits Narasimha was resid ing
On the same day a First Information Report was issued registering the offence of murder but without mentioning the name of any accused
The accused could not be named since there was then no authentic information as to how U Nara simha died and who were responsible for his unnatural death
In order to clear the mist surrounding the incident on 19 July 1986 the State Government constituted a Commission of Inquiry under Section 3 of the Commission of Inquiry Act 1952 Central Act 60 of 1952
Shri ADV Reddy retired Judge of the High Court of Andhra Pradesh was constituted as a Single Member 238 of the Commission of Inquiry
The Commission was asked to find out the circumstances leading to the lock up death of U Narasimha and to identify the person if any responsible for the incident
The Commission was also required to point out lapses on the part of any authority or person or per sons in connection with that incident
On 29 November 1986 the Commission submitted its report indicating certain police officials including the respondent
It was inter alia observed that the respondent and other police officials have mercilessly beaten and tortured U Narasimha and that has resulted in his lock up death
It has been further observed that the officials were also responsible for certain other offences like illegal detention of the deceased disrobing of Smt
Chandrakala the wife of the deceased house tres pass misappropriation etc
The Government after examining the report has accepted it and decided to initiate prosecu tion against the officers
The Director General of Police was asked to take immediate action in that regard
There then the Director General of Police made the order keeping the respondent under suspension pending prosecution against him
The Rule 131 empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges where such suspension is necessary in the public interest
When the first information report is issued the investigation commences and indeed it has com menced when the respondent was kept under suspension
The order of suspension cannot therefore be said to be beyond the scope of Rule 131 merely because it has used the word prosecution  instead of investigation into the charges against the respondent
A wrong wording in the order does not take away the power if it is otherwise available
The tribunal seems to have ignored this well accepted principle
In stating this conclusion we do not of course express any opinion about the need to make a fresh order of suspen sion
We however make it clear that the original order of suspension need not be given effect to since the respondent has already been reinstated into service and transferred to some other station
The appeal is accordingly allowed setting aside the order of the Tribunal
NPV Appeal allowed


Summary:
The fourth respondent a company had two factories in the State of Bombay
The first respondent Union obtained a certificate of recognition from the Industrial Court under section 12 of the Maharashtra Recognition of Trade Unions  Prevention of Unfair Labour Practices Act 1971 for one of the company s undertakings
While it was acting as such recognised union many of the workers claimed that they had resigned from the said union and formed a new union the appellant Union had it registered on January 7 1981
The Appellant Union made an application to the Industri al Court under Section 131ii on October 9 1981 for cancellation of the recognition of the first respondent Union on the ground that the latter s membership in the undertaking had fallen below 30 per cent of the total strength of workmen in the undertaking for the preceeding six months
The allegations were refuted by the first re spondent Union and it was further contended that its member ship was more than 30 per cent for the relevant period
Another application was submitted by the appellant Union on March 1 1982 for cancellation of the recognition of the first respondent Union under Section131ii alleging that the recognition was 178 obtained by misrepresentation andor fraud and that it was also granted recognition by mistake
The Industrial Court rendered the relief in favour of the appellant Union but the said decision was set aside by the High Court and confirmed by this Court
After sometime the appellant Union moved an application under section 14 for being registered itself as a recognised union in place of the first respondent Union on the ground that it had the largest membership of the workers in the undertaking ie about 69 of the total strength
This claim was contested by the first respondent Union in its reply and it was pleaded that it had a membership of 1400 workers
Details of membership were furnished by the parties with their pleadings and an application was made by the appellant Union to the Industrial Court to hold an enquiry under section 122 by directing the Investigating Officer to verify the membership of both the Unions
The Industrial Court thereupon gave directions to the Investigating Officer appointed under the Act to investigate the membership of both the Union
While the investigation was in progress both the Unions submitted draft proposals to the following effect 1 The issue pertaining to recognition of any of the Unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot 2 The union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any technicality or objec tion and 3 The union which fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union
The Industrial Court directed the Investigating Officer to hold a secret ballot in the premises of the Company and the employees who were entitled to vote in the ballot were those who were on the rolls of the Company on July 1 1985
A secret ballot was held and the appellant Union secured 798 votes whereas the first respondent Union secured 780 votes
The first respondent Union submitted objections contend ing that he cut off date of July 1 1985 was not correct as the employees who were in employment of the Company and whose services were intermitently interrupted were not given an opportunity to exercise their votes
179 The Industrial Court disposing of the aforesaid objection held that since there was an agreement between the two unions the procedure adopted to grant recognition to the union under the Act was a valid one and granted the request of the appellant Union for cancellation of the recognition of the respondent Union under section 131VII of the Act and as a consequence of the recognition granted recognition to the appellant Union in place of the first respondent Union under section 14 of the Act and granted the necessary certificate of recognition
Writ petitions were filed in the High Court under Arti cle 227 of the Constitution by two workers of the first respondent Union contesting the aforesaid order of the Industrial Court and they were allowed
The High Court relying on its earlier decision in Maharashtra General Kamgar Union Bombay vs Mazdoor Congress Bombay  Ors  set aside the order of the Industrial Court
In the appeals to this Court on the question whether the procedure adopted by the Industrial Court for granting recognition to the appellant Union was illegal
Dismissing the appeals this Court HELD 1
The order of the Industrial Court granting recognition under the Act to the appellant Union by follow ing the method of ballot is prima facie illegal being in breach of the provisions of the Act
The High Court had therefore rightly interfered with the said order
192B Maharashtra General Kamgar Union Bombay vs Mazdoor Congress Bombay  Ors  approved
Section 14 lays down the procedure for recognition of the other union when there is already a recognised union in the field
The conditions precedent to making such applica tion are i a period of at least two years must have elapsed since the day of the registration of the recognised union ii a period of one year should have elapsed since the date of disposal of the previous application for recog nition of such union iii the union must have satisfied the conditions necessary for recognition specified under section 11 and in addition iv its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recog nised union v the provisions of Section 12 which also include the conditions specified in Section 19 are satis fied
If however the Court comes to the conclu 180 sion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary condi tions the Court will grant recognition to the other union
188B C G 3
The recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general
No union is entitled to be registered as a recognised union under the Act merely because it satisfies the membership qualification
1901D E 4
The Industrial Court is forbidden from granting recognition to a union whatever its membership if the Court is satisfied that it is disqualified for reasons mentioned under section 125 and 126 or does not satisfy the condi tions mentioned in section 19
190E In the instant case what was done by the Industrial Court was to permit the registration of the union as a recognised one by a method which was clearly alien to the Act
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever command a majority of votes of the employees voting on a particular day would be entitled to the status of the recognised union
The Court thus ignored in particular the mandatory provisions of Sections 10 11 12 14 and 19 of the Act
Not only that the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot
What had to be found out was the exclusive membership of the contesting unions con tinuously over the specified period the overlapping member ship being ignored 191D G 5
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act cannot cure the illegality
To permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act
191G H 192A Matter remanded to Industrial Court for disposal ac cording to law 192B 181