Case: Om Prakash Gupta Vs. The State Of Uttar Pradesh

added contractual term that the rules are to be observed is at once too artificial and too far-reaching to commend itself for acceptance. The rules are manifold in number and most minute in particularity, and are all capable of change......................... ..................... .....Inconvenience is not a final consideration in a matter of construction, but it is at least worthy of consideration, and it can hardly be doubted that the suggested procedure of control by the courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion"12. In the Courts below the principal question for consideration was whether the appellant could recover arrears of salary having been illegally dismissed. It was not pleaded that the order of suspension was valid and during the period it was in force the appellant could not recover arrears of salary and no specific issue was framed in this respect. If the decision of this Court in Abdul Majids case (A) had been available to the Courts below, they would have held that the appellant was entitled to recover arrears of salary when he had been illegally dismissed and they would have had further to decide whether the order of suspension was valid and during the period it was in force the appellant could recover arrears of salary.On the additional written statement filed by the respondent in this Court, the submissions of the Advocate for the appellant and the Attorney-General would require examination and it might have been necessary to consider whether the case should not be remanded to the Court of trial. It is unnecessary, however, to record a decision on these submissions having regard to the attitude adopted by the Advocate for the appellant. He objected to the case being remanded as such a course would involve the appellant in heavy expenditure and harassment.The appellant preferred to give up his claim for arrears of salary less subsistence allowance paid to him from the date of the order of suspension until the date of the order of dismissal. He, however, contended that the order of suspension continued to be in force only until 25- 11-1944, the date of the order of dismissal. On that date the order of suspension cased to exist and the appellant was entitled to recover arrears of salary from 25-11-1944 to 31-12-1947, inclusive.The Attorney-General strongly contended that it continued to be in force and that it was not at all affected by the declaration of the Civil Judge that the order of dismissal was illegal. In view of that decision the order of dismissal must be regarded as a nullity and non-existent in the eye of law. The inquiry, the outcome of which was the order of dismissal, had not therefore ended. It could only end with a valid order which would replace the order of suspension. Until that happened the accusation against the appellant remained and the inquiry had not ended.He referred to the case of - Gopalkrishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170 (D). On behalf of the appellant reliance was placed on the case of - Provincial Govt., C. P. and Berar v. Shamshul Hussain, AIR 1949 Nag 118 (E).The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant.With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.The case referred to by the Attorney-General is not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entitled to recover arrears of salary from 25-11-1944, to 31-12-1947.13. The appeal is accordingly allowed in part with costs throughout and the decree of the Courts below is set aside. The plaintiffs suit is decreed for arrears of salary from 25-11-1944 to 31-12-1947, inclusive. The appellant had claimed Rs. 16,810-8-0 less subsistence allowance already drawn as arrears of pay front 24-8-1944 to 31-12-1947. As his claim for arrears of salary from 24-8-1944 to 25-11-1944, is given up, the total salary payable to him during this period less subsistence allowance already drawn, must be deducted from the sum of Rs. 16,810-8-0.The judgment of the High Court as well as the additional written statement filed by the respondent in this Court show that subsequent to the decree passed by the Civil Judge the appellant was treated as under suspension until he was dismissed by a fresh order of dismissal and that he has been paid subsistence allowance for the entire period. Such subsistence allowance as has been paid to the appellant from 25-11-1944, to 31-12-1947, inclusive, must, therefore, be credited to the respondent and the same must be adjusted against the salary claimed by the appellant. A decree will accordingly be prepared stating the amount recoverable, by the appellant.14. The appellant was permitted to appeal in forma pauperis. As he has succeeded in the appeal, the Registrar shall calculate the amount of court-fee which would have been paid by the appellant if he had not been allowed to appeal as a pauper and incorporate it in the decree. The court-fee shall be payable by the appellant but the Union Government will recover it from the Uttar Pradesh Government who will adjust the sum paid against the total amount payable under the decree.15. It will be a first charge on the amount decreed to the appellant. Under R. 7 of O. 14 of the Rules of this Court the appellant will be allowed the fees paid by him to his Advocates in the taxation of costs.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6.It may be stated at once that in view of the decision of this Court inState of Bihar v. Abdul Majid, AIR 1954 SC 245   (A) there can be no question now that the appellant had the right to institute a suit for recovery of arrears of salary as he was dismissed illegally.It is unnecessary, therefore, to refer to the elaborate discussion of the law in this respect to be found in the judgment of the learned Judges of the High Court.So far as the payment of excessis concerned, the learned Advocate for the appellant did not urge this point in his opening argument but urged it in reply after thehad concluded his argument. Apart from the question as to whether the Advocate can be allowed to urge a point like this in reply when no submission had been made by him in his opening, it seems there is no merit in the submission made by the Advocate. Thehad been paid on Rs. 1,20,000/which was claimed as damages.At the time the suit was instituted the law as then understood permitted such a claim to be made. The decision of the Privy Council, however, made it clear that no such claim could be made and all that a Government servant could ask for was a declaration that the order of dismissal was illegal and that he still continued to be a member of the Civil service.The decision of the Privy Council clarifying the position could not be a ground for refund ofwhen at the time it was paid it was in accordance with the law as then understood.Indeed the appellant did not appeal or file an application against the order of the Civil Judge refusing to pass an order of refund.In the High Court he did not ask for this relief on the basis of any statutory provision.He invoked the inherent powers of the High Court. TheAct contains certain provisions for refund ofpaid by a party but admittedly the present case is not covered by any of those provisions.It seems, therefore, that the High Court in the circumstances of the present case rightly refused to order a refund of the excesspaid by the appellant. It also does not appear that the Civil Judge acted illegally in refusing to order a refund.9. On the additional written statement filed in this Court by the respondent a question has arisen whether the order of suspension was valid and during the period it was in force the appellant could recover arrears ofwas, therefore, inherent power in the Crown and its representative to pass an order of suspension against the appellant pending an inquiry. The Classification Rules and Fundamental Rules were merely directions for general guidance and they did not constitute a contract between the Crown and its servants.For this proposition he referred to the observations of Lord Hobhouse in the case ofv. Smith, 1895 A. C. 229. He also relied upon the following observations of Lord Roche in the case ofVenkata Rao v. Secretary of State, AIR 1937 P.C. 31was not pleaded that the order of suspension was valid and during the period it was in force the appellant could not recover arrears of salary and no specific issue was framed in this respect. If the decision of this Court in Abdul Majids case (A) had been available to the Courts below, they would have held that the appellant was entitled to recover arrears of salary when he had been illegally dismissed and they would have had further to decide whether the order of suspension was valid and during the period it was in force the appellant could recover arrears ofview of that decision the order of dismissal must be regarded as a nullity andin the eye of law. The inquiry, the outcome of which was the order of dismissal, had not therefore ended. It could only end with a valid order which would replace the order of suspension. Until that happened the accusation against the appellant remained and the inquiry had not ended.He referred to the case ofGopalkrishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170 (D). On behalf of the appellant reliance was placed on the case ofProvincial Govt., C. P. and Berar v. Shamshul Hussain, AIR 1949 Nag 118 (E).The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant.With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.The case referred to by theis not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entitled to recover arrears of salary from3. The appeal is accordingly allowed in part with costs throughout and the decree of the Courts below is set aside. The plaintiffs suit is decreed for arrears of salary from7, inclusive. The appellant had claimed Rs.less subsistence allowance already drawn as arrears of pay front7. As his claim for arrears of salary from4, is given up, the total salary payable to him during this period less subsistence allowance already drawn, must be deducted from the sum of Rs.judgment of the High Court as well as the additional written statement filed by the respondent in this Court show that subsequent to the decree passed by the Civil Judge the appellant was treated as under suspension until he was dismissed by a fresh order of dismissal and that he has been paid subsistence allowance for the entire period. Such subsistence allowance as has been paid to the appellant from7, inclusive, must, therefore, be credited to the respondent and the same must be adjusted against the salary claimed by the appellant. A decree will accordingly be prepared stating the amount recoverable, by the appellant.14. The appellant was permitted to appeal in forma pauperis. As he has succeeded in the appeal, the Registrar shall calculate the amount ofwhich would have been paid by the appellant if he had not been allowed to appeal as a pauper and incorporate it in the decree. Theshall be payable by the appellant but the Union Government will recover it from the Uttar Pradesh Government who will adjust the sum paid against the total amount payable under the decree.15. It will be a first charge on the amount decreed to the appellant. Under R. 7 of O. 14 of the Rules of this Court the appellant will be allowed the fees paid by him to his Advocates in the taxation of costs.