Appeal No 2376 of 1966
355 356 Appeal from the judgment and order dated January 18 1963 of the Madhya Pradesh High Court in Miscellaneous Petition NO 267 of 1962
RVS Mani EC Agarwala and PC
Agarwalafor the appellant
B Sen MN Shroff for IN Shroff for the respondent
Shelat J Prior to December 17 1947 the appellant was serving as an Overseer in the Public Works Department of the Central Provinces and Berar Government
On December 17 1947 he was suspended from service and prosecuted under section 161 of the Penal Code
The trial resulted in his conviction but that was set aside in appeal on the ground that no proper sanction for prosecution was obtained
He was again prosecuted on the same charge but the Special Judge trying him quashed the chargesheet on the ground that the investigation had not been carried out by the proper authorities
In revision the High Court of Nagpur held that the Special Judge was in error in so holding but recommended that the prosecution should not be proceeded with as nearly 10 years had gone by since it was launched against the appellant
Following the recommendation the prosecution was dropped but a departmental inquiry was held on the same charges
The Inquiry Officer found the appellant not guilty but the Government disagreed with that finding and served a notice to show cause why he should not be dismissed
By an order dated December 5 1960 the Government held that the charges against the appellant were not proved beyond reasonable doubt
It also held that the suspension and the departmental inquiry were not wholly unjustified
The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from that date he having already attained superannuation age on September 5 1952 and that the entire period of absence from duty should be treated as period spent on duty under FR 545 for purposes of pension only but that he should not be allowed any pay beyond what he had actually received or what was allowed to him by way of subsistence allowance during the period of his suspension
On a representation made by him against the said order hav ing been rejected the appellant filed a petition under article 226 of the Constitution in the High Court of Madhya Pradesh for quashing the said order and for an order directing the Government to treat the period of absence from duty as period spent on duty under cl 2 of the said Fundamental Rule and to revise the pension payable to him under that clause
The High Court dismissed the petition but granted certificate to file this appeal and that is how this appeal has come up before us
357 Fundamental Rule 54 on the interpretation of which this appeal depends is as follows 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 allowance 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 the authority Mentioned in sub rule 1 is of opinion 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 and allowances to which he would have been entitled had he not been dismissed removed or suspended as the case may be
3In other cases the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe
Provided that the payment of allowances under clause 2or clause 3 shall be subject to all other conditions under which such allowances are admissible
Provided other that such proportion of such pay and allowances  all not be less than the subsistence and other allowances admissible under Rule 53
4 In a case falling under clause 2 the period of absence from by shall be treated as a 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 a period spent on dutyunless such competent authority specifically directs that it shall be so treated for any specified purpose
Provided that if the Government servant so desired such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant
 On behalf of the appellant two points were urged before the High Court 1 that before passing the impugned order the appellant ought to have been given a reasonable opportunity to show cause against the action proposed and 2 that it was clause 2 and not clause 5 which applied to his case
The High Court rejected both the contentions and as aforesaid dismissed the petition
358 Counsel for the appellant canvassed the same contentions before us
Mr Sen on behalf of the State
however argued that FR 54 does not in express terms lay down a duty on the part of the authority to give an opportunity to show cause to the government employee and therefore the question would be whether the Rule imposed such a duty by necessary implication
He urged that the Rule cannot be said to lay down such duty by implications inasmuch as the impugned order is only a consequential order
That it was passed following a departmental inquiry held against the appellant during the course of which opportunity to show cause was already afforded
He contended that the only duty laid down by FR 54 was that the Government should consider whether the appellant was fully exonerated and in case of suspension whether such suspension was wholly unjustified and that once the authority formed the opinion that it was not so cls 3 and 5 would apply
The Government having formed the opinion that the suspension was not wholly unjustified clans 5 applied and the impugned order was not liable to be challenged
The first question which requires consideration is whether there was a duty on the competent authority to afford an opportunity to the appellant to show cause before that authority formed the opinion as to whether he was fully exonerated and whether his suspension was wholly unjustified
Under FR 54 where a Government servant is reinstated the authority has to consider and make a specific order i regarding pay and allowances payable to him for the period of his absence from duty and ii whether such period of absence should be treated as one spent on duty
The consideration of these questions depends on whether on the facts and circumstances of the case the Government servant had been fully exonerated and in case of pension whether it was wholly unjustified
If the authority forms such an opinion the Government servant is entitled to full pay and allowances which he would have been entitled to had the order of dismissal removal or suspension as the case may be not been passed
Where the authority cannot form such an opinion the Government servant may be given such proportion of pay an allowances as the authority may prescribe
In the former case the period of absence from duty has to be treated as period spent on duty for all purposes and in the latter case such period is not to be treated as period spent on duty
But the authority has the power in suitable cases to direct that such period of absence shall be treated as period spent on duty in which case the government servant would be entitled to full pay and allowances
It is true that the order under FR 54 in a sense a con sequential order in that it would be passed aft an order of reinstatement is made
But the fact that it is a consequential order does not determine the question whether the government servant has to be given an opportunity to show cause or not
It is also true 359 that in
a case where reinstatement is ordered after a departmental inquiry the government servant would Ordinarily have had an opportunity to show cause
In such a case the authority no doubt would have before him the entire record including the explanation given by the government servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has been fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not
In such a case the order passed under a rule such as the present Fundamental Rule might be said to be a consquential order following a departmental inquiry
But there are three classes of cases as laid down by the proviso in article 311 where a departmental inquiry would not be held viz a where a person is dismissed removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge b where the authority empowered
to dismiss or remove person or to reduce him in rank is satisfied for reasons to be record in writing that it is not reasonably practicable to hold such an inquiry and c where the President or the Governor as the case may be is satisfied that in the interest of security of the State it is not expedient to hold such inquiry
Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the  government servant
The authority in such cages would have to consider and pass the  order merely on such facts which might be placed before him by the department concerned
The order in such a case Would be ex parte without the authority having the other side of the picture
In such cases the order that such authority would pass would not be a consequential order as where a departmental inquiry has been held
Therefore aft order passed under Fundamental Rule 45 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee
It is true as Mr Sen pointed out that FR 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order
Even so the question is whether the rule casts such a duty on the authority by implication
The order as to whether a given case falls under cl 2 or cl 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and
his forming the opinion therefrom of two factual findings whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified
Besides an order passed under this rule would obviously affect the government servant adversely if it is one made under cls
3 and 5
Consideration under this rule depending as it does on facts and circumstances in their entirety passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function
360 The very nature of the function implies the duty to act judicially
In such a case if an opportunity to show cause against the action proposed is not afforded as admittedly it was not done in the present case the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice
In the State of Orissa vs Dr Miss Binapani Devi and others1 this Court held that an order fixing the date of birth of the government servant concerned there and declaring that she should be deemed to have retired on a particular date on the basis of the date so determined without giving an opportunity to show cause against the action proposed was invalid on the ground that the determination was in violation of the principles of natural justice
It was there observed The State was undoubtedly not precluded merely because of the acceptance of the date of birth of the first respondent in the service register from holding an inquiry if there existed sufficient grounds for holding such enquiry and for refixing her date of birth
But the decision of the State could be based upon the result of an enquiry in a manner consonant with the basic concept of justice
An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay
The deciding authority it is true is not in the position of a Judge called upon to decide an action between contesting parties and strict compliance with the forms of judicial procedure may not be insisted upon
He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his pre judice
 We find that the High Court of Maharashtra has also taken in V R Gokhale vs State of Maharashtra2 the same view which we are inclined to take of the nature of function under R 152 of the Bombay Civil Service Rules 1959 a rule in terms identical to those of FR 54 before us
In our view FR 54 contemplates a duty to act in accord ance with the basic concept of justice and fairplay
The authority therefore had to afford a reasonable opportunity to the appellant to show cause why cls
3 and 5 should not be applied and that having not been done the order must be held to be invalid
1  2 ILR 361 The appeal is allowed and the High Court s order is set aside
The competent authority is directed to consider the question de novo after giving to the appellant a reasonable opportunity to show cause against the action proposed against him
The respondent will pay to the appellant costs of this appeal as also the costs of the petition in the petition in the High Court
GC Appeal allowed


Summary:
The appellant was an Overseer in the Public Works Department of the Central Provinces and Berar Government
In 1947 he was suspended from service and prosecuted under section 161 IPC Ultimately on orders from the High Court the prosecution was dropped
In a departmental enquiry also the appellant was exonerated By an order dated December 1960 the Government held that the suspension of the appellant and the  departmental enquiry against him were not wholly unjustified
The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from the date he having already attained superannuation age on September 5 1952 and that the entire period of absence from duty should be treated as period spent on duty under FR 545 for purposes of pension only but that he should not be allowed any pay beyond what he had actually received or what was allowed to him by way of subsistence allowance during the period of his suspension
The appellant filed a petition under article 226 of the Constitution contending that F Rule 542 governed his case and not F Rule 545
The High Court decided against him but granted him certificate to appeal to this Court
It was contended on behalf of the appellant that before deciding which rule applied to his case the Government should have given him an opportunity to be heard
The respondent urged that in passing a consequential order a hearing is not necessary
Held An order passed under F R 54 is not always a consequential order nor is such order necessarily a continuation of the departmental proceeding taken against the employee
359E F Consideration under FR 54 depending as it does on facts and circumstances in their entirety passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than a subjective function
The very nature of the function implies the duty to act judicially
In such a case if an opportunity to show cause against the action proposed is not afforded as admittedly it was not done in the pre sent case the order is liable to be struck down as invalid on the ground that it was one in breach of the principles of natural justice
State of Orissa vs Dr Miss Binapani Devi and Ors   relied on
359H 360A B V R Gokhale vs State of Maharashtra ILR 1963 Bom
537 approved