Dr. Ravindra Singh vs State Of U.P. Thru. Prin. Secy. Medical Health And Family Welfare Lko. & Ors.

TABLE OF CONTENTS

Factual Matrix

“1- मुख्य चिकित्साधिकारी झांसी के पत्र संख्या- सी०एम०ओ० / डा० रविन्द्र सिंह /काग०निरुद्ध/अभि०2022-23/4282 दिनांक 12.07.2022 द्वारा अवगत कराया गया कि डा० रविन्द्र सिंह अधीक्षक सामु० स्व० केन्द्र चिरगाँव, झांसी दिनांक 20.06.2022 से मु०अ०सं०-118/2021 अन्तर्गत पारा 376/354/504 भा०द०सं० थाना गुरसराय, जिला झांसी एवं मु०अ०सं०-69/2022 अन्तर्गत धारा-306/506 भा०द०सं० थाना गुरसराय, जिला झांसी में जिला कारागार झांसी में निरुद्ध है। अतः कारागार में निरुद्ध होने की तिथि दिनांक 29.06.2022 से डॉ० रविन्द्र सिंह को उ०प्र० सरकारी सेवक (अनुशासन एवं अपील) नियमावली 1999 के नियम 4 (3) (क) के अन्तर्गत निलम्बित किया जाता है।”

“Accordingly, considering that as the petitioner has been released from jail on 20.10.2022 and thereafter has filed an application for his joining, present petition is disposed of with a direction to the competent authority to consider the application of the petitioner for joining dated 21.10.2022 in accordance with law and the Rules, 1999 within a period of three weeks from the date of receipt of a certified copy of this order.”

“...दिनांक 10.10.2022 द्वारा किये गये निलम्बन को एतद्वारा समाप्त करते हुए, सेवा में बहाल कर डा० रविन्द्र सिंह को अधीन मुख्य चिकित्साधिकारी, चित्रकूट तैनात किये जाने की श्री राज्यपाल सहर्ष स्वीकृति प्रदान करता है।”

Submissions Advanced on Behalf of the Petitioner

Submissions Advanced on behalf of State-respondents

Analysis/Reasoning

“10.

Till the next date of listing, the proceedings of Sessions Trial No. 61 of 2023 (old number 1056 of 2022) (State Vs. Dr. Ravindra Kumar) pending in the court of learned Additional Sessions Judge, Garautha, District Jhansi, shall remain stayed.”

“4. Suspension. -

(1)

A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority :Provided that suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty :Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government servant or class of Government servants belonging to Group 'A' and 'B' posts under suspension under this rule :Provided also that in the case of any Government servant or class of Government servants belonging to Group 'C' and 'D' posts, the appointing authority may delegate its power under this rule to the next lower authority.

(2)

A Government servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may at the discretion of the appointing authority or the authority to whom the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to that charge.

(3)(a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the authority competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours.

(b)

The aforesaid Government servant shall, after the release from the custody, inform in writing to the competent authority about his detention and may also make representation against the deemed suspension. The competent authority shall after considering the representation in the light of the facts and circumstances of the case as well as the provision contained in this rule, pass appropriate order continuing the deemed suspension from, the date of release from custody or revoking or modifying it.

(4)

Government servant shall be deemed to have been placed, or as the case may be, continued to be placed under suspension by an order of the authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction.Explanation. - The period of forty-eight hours referred to in sub-rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken to account.

(5)

Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions :

(a)if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal of removal;

(b)if he was not under suspension, he shall, if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the appointing authority on and from the date of the original order of dismissal or removal:

Provided that nothing in this sub-rule shall be construed as affecting the power of the disciplinary authority in a case where a penalty of dismissal or removal in service imposed upon a Government servant is set aside in appeal or on review under these rules on grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension pending further inquiry against him on those allegations so, however, that any such suspension shall not have retrospective effect.

(6)

Where penalty of dismissal or removal 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 appointing 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 or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof a minor nature omitted :

(a)if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, ho deemed to have continued in force on and from the date of the original order of dismissal or removal;

(b)if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal.

(7)

Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings.

(8)

Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority.

(9)

A Government servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume 11, Parts II to IV.”

“It appears that, thereafter, petitioner has been let off on bail and he requested that the said suspension order be revoked. Thereafter, the authority concerned considered the request of petitioner and has proceeded to take a conscious decision for continuance of suspension of petitioner till a decision in the criminal proceedings. Once such is the factual situation that initial order of suspension was based on the fact that petitioner has been under detention exceeding 48 hours and as the criminal proceedings are still ongoing and the Competent Authority has chosen in his wisdom not to revoke the same till a decision is there in the said proceedings, then averments made by petitioner that the suspension order is for indefinite period and as it has been based on account of being under detention exceeding 48 hours is liable to be recalled, cannot be accepted by this Court, in the facts of case. The incumbent, working in the banks, has to have the highest integrity and once the conduct of petitioner is under cloud and criminal proceedings, as initiated against him, are still ongoing and matter has been investigated by the CBI, then there is no reason for us to entertain the request, that has been so made on behalf of petitioner.”

“30.

Coming then to the question whether the action taken by the appellant RGPPL was vitiated by malice in law, we need hardly mention that in cases involving malice in law the administrative action is unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no real or actual malice at work in his mind. The conceptual difference between the two has been succinctly stated in the following paragragh by Lord Haldane in Shearer v. Shields (1914) A.C. 808 quoted with approval by this Court Additional District Magistrate, Jabalpur v. Shivkant Shukla (1976) 2 SCC 521: “410. Between 'malice in fact' and 'malice in law' there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the flaw and can only act within the law. He may, therefore, be guilty of 'malice in law', although., so far as the state of ins mind was concerned he acted ignorantly, and in that sense innocently. 'Malice in fact' is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act.”

31.

Reference may also be made to the decision of this Court in State of AP & Ors. v. Goverdhanlal Pitti (2003) 4 SCC 739 where the difference between malice in fact and malice in law was summed up in the following words: “11.

The legal meaning of malice is “ill-will or spite towards a party and any indirect or improper motive in taking an action”. This is sometimes described as “malice in fact”. “Legal malice” or “malice in law” means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others'. [See Words and Phrases legally defined in Third Edition, London Butterworths 1989]. .Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all, it is malice in legal sense, it can be described as an act which is taken with a oblique or indirect object...” (emphasis supplied)

32.

To the same effect is the recent decision of this Court in Ravi Yashwant Bhoir v. District Collector, Raigad and Ors (2012) 2 SCC 407 where this Court observed:

“MALICE IN LAW:

37.

This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. “Legal malice” or “malice in law” means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for “purposes foreign to those for which it is in law intended.” It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law.

“Rule 49A-

[3][(1) The appointing authority or any authority to which it is subordin-ate or the Governor by general or special order, may place a Govern-ment servant under suspension--

(a)

where disciplinary proceeding against him is contemplated or is pending, or,

(b)

where a case against him in respect of any criminal offence is under investigation, or trial.

(2)

A Government servant shall be deemed to have been placed under sus-pension by an order of appointing authority-

(a)

with effect from the date of his detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

(b)

with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of impris-onment exceeding forty-eight hours and is not forthwith dis-missed or removed or compulsorily retired consequent to such conviction.

Explanation.--

The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the com-mencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprison-ment, if any, shall be taken into account.

(4)

Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory re-tirement and shall remain in force until further orders.

(5)

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 disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allega-tions on which the penalty of dismissal, removal or compulsory retire-ment 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.

(6)

(a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or re-voked by the authority competent to do so.

(b)

Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceed-ing or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension the authority competent to place him under suspension may, for reasons to be recor-ded by him in writing, direct that the Government servant shall con-tinue to be under suspension until the termination of all or any of such proceedings.

(c)

An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.”

“2.

During the course of hearing Shri Rakesh Dwivedi, learned Additional Advocate General mentioned that the judgment of the learned Single Judge in case of Jagjit Singh v. State of U.P. has been challenged in Special Appeal No. 436 of 1995 which is pending and the appeal may also be heard along with Writ Petition No. 39588 of 1994 as in both the cases, the judgment declaring Rule 49-A(2)(a) of the Rules as null and void being violative of Articles 14 and 21 of the Constitution of India is subject matter of consideration. On this request the record of the aforesaid appeal was also summoned by us. The questions referred to this bench are as under:—

“1.

Whether sub-clause, (a) of sub-rule (2) of Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930 as applicable in Uttar Pradesh is violative of Articles 14 and 21 of the Constitution of India and null and void?”

“2.

Whether the legal fiction envisaged under Rule 49-A(2)(a) or (b) can come into play even in the absence of an order of suspension passed in writing?”

10.

In the written arguments submitted by Shri P.P. Srivastava for respondents in the writ petition, it has been submitted that Art. 14 forbids the class legislation. It does not forbid classification or differentia which rests upon the reasonable grounds of distinction. The principle of equality as envisaged in Art. 14 does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position. Varying need of different class of persons require different treatment. Classification should be reasonable. It must be founded on intelligible differentia which discloses persons or things that are grouped together from other left out of the group. The differentia must have a rational relation to the object sought to be achieved by the statute in question. Reliance has been placed in Prabodh Verma v. State of U.P.¹ and Motor General Traders v. State of U.P. It has been further submitted that there is always a presumption of constitutionality of a statute and the burden is upon who attacks it and he has to show that there has been any transgression of the constitutional principles. In the present case there is a total lack of such pleading and proof.

17.

The deemed suspension by an order of the appointing authority thus is applicable to the detentions both under clauses (a) and (b) which are nothing but one alternative under two different contingencies. Under sub-rule (2), the phrase “as the case may be” continued to be placed under suspension by an order of appointing authority deals with a different alternative after the release of the Government Servant from the custody or detention where the deemed suspension under the first part of sub-rule (2) may be continued by an express order of the appointing authority. In sub-rule (2) the phrase “as the case may be” contemplates two alternatives; one deemed suspension by an order of the appointing authority and another alternative of continued suspension on release of the Government Servant from detention. There appears no ambiguity or confusion. What we have said above is corroborated from sub-rule (2) of Rule 10 of Central Civil Services (Classification) Control and Appeal Rules, 1965, which reads as under—

“(2)

A Government Servant shall be deemed to have been placed under suspension by an order of appointing authority—

(a)

With effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

(b)

With effect from the date of his conviction, if, in the event of conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.”

19.

In our opinion, different Division Benches gave different interpretation of sub-rule (2) only for the reason that the expression “as the case may be” and the alternative contemplated thereafter was not correctly appreciated. The logical conclusion is that whenever the Government Servant is detained in custody, for that period, he should be deemed to be under suspension irrespective of the reason of detention whether it is on a criminal charge or otherwise or on being sentenced to a term of imprisonment on being convicted. However, this deemed suspension should be confined to the period of detention in custody only and it cannot be carried further after release from detention. If the appointing authority wants to continue this deemed suspension further, a specific order is required to be passed and for passing such an order, all the requirements provided in sub-rules (1) and (1-A) of Rule 49-A, as the case may be should be taken into account. In our considered opinion, the deemed suspension under sub-rule (2) cannot be carried beyond the period of detention in custody as the basic purpose behind enacting sub-rule (2) is to render the Government servant non-functional during the period he is deprived of the liberty and he shall be deemed to be under suspension for this period even in absence of any order passed by the appointing authority. One can well imagine the serious consequences if a Government Servant is allowed to discharge his duties and functions from the place of his custody. Much has been argued on the basis of the fact that a Government servant may conceal the fact of his detention from the appointing authority and in such circumstances the deemed suspension contemplated under sub-rule (2) cannot serve any purpose. However, in our opinion, the argument though appears to be attractive, is not acceptable. The deemed suspension will serve the purpose even though detention in custody of Government Servant may not be in the knowledge of the appointing authority for some time as it shall save the interest of the Government, whenever any order, action or omission of such Government Servant done during the period of detention comes in question for consideration. All his actions during the period of detention shall be without authority and cannot bind the Government. Considering the aforesaid purpose, immediate knowledge is not very material. Further, a Government Servant under the Conduct Rules is under obligation to inform his appointing authority or the employer about his detention and even if he has not informed, the law will assume all the consequences which flow from the deemed suspension on his detention in custody and one should not have any doubt about such consequences on an assumption of ignorance of appointing authority of such fact. There is yet a very strong reason for which it appears necessary that deemed suspension envisaged under sub-rule (2) of Rule 49-A of the Rules should be limited to the period of detention only. The provision is very stringent and leaves no exception or discretion with the appointing authority.

The deemed suspension of government employee is bound to follow if he is detained in custody for more than forty eight hours, irrespective of the fact whether the detention is connected with his employment or not. The detention may be for any reason but the consequence of deemed suspension shall follow during the period of detention when the employee is not in a position to render any service. Thus, in our opinion, in order to save the Government employee from unnecessary harassment, it is necessary to limit this deemed suspension only for the period of detention.

22.

The provisions contained in sub-rule (2) have also been assailed as unconstitutional on the ground that the same suffer from vice of arbitrariness. In our opinion, this criticism has also no substance. The deemed suspension of a Government servant by a legal fiction is a necessity as discussed above but it is not correct to say that the Government servant has been left remediless once a deemed suspension has come into existence. Sub-rule (5)(a) of Rule 49-A clearly provides that any suspension ordered or deemed to have been ordered gr to have continued in force under this Rule shall continue to remain in force until it is modified or revoked by the authority specified in sub-rule (1). Thus a Government servant who has been deemed to be under suspension by an order of the appointing authority for the period he was under detention in custody, can approach the appointing authority and convince him for modifying or revoking the order and on such approach being made, the appointing authority may take into account all the facts and circumstances which led to his detention in custody and gave rise to the deemed suspension and then the appointing authority may pass appropriate order modifying or revoking the order of suspension. Thus, the Government servant is not remediless. On the basis of the language used in sub-rule (5)(a), it has been argued that a deemed suspension once comes into existence, shall continue to remain in force until it is modified or revoked by the appointing authority and the Government Servant shall continue under suspension even after his release from the custody. In our opinion, under sub-rule (5)(a) suspension deemed to have been ordered shall continue to remain in force does not mean that the actual suspension shall also continue after release from custody. However, the deemed suspension shall remain in force for other purposes which may include all the consequences which flow from an order of suspension of a Government servant. From the combined reading of sub-rule (2) and clauses (a) and (b) and sub-rule (5)(a) of Rule 49-A, the possible and reasonable conclusion is that deemed suspension shall be operative only for the period of custody and not beyond that. However, it shall remain in force for other purposes which flow from the order of suspension. In our opinion, such a harmonious interpretation can be safely given to the provisions contained in sub-rule (5)(a) without doing any violence to the purpose and object and the legislative intent behind the aforesaid provisions.

26.

If the aforesaid principles laid down by Hon'ble supreme Court are kept in mind, the provisions contained in sub-rule (2)(a) cannot be held to be null and void. Rule 49-A has been framed in exercise of the powers under Article 309 of the Constitution of India and the Rule has a definite purpose to serve. We have considered all the cases cited by the learned counsel for parties. However, we do not find anything on which basis the view we have expressed above may be doubted or shaken. Our conclusions and answer to the questions referred to us are as under:—

(A)

sub-clause (a) of sub-rule (2) of Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930, as applicable in Uttar Pradesh, is not violative of Article 14 and 21 of the Constitution of India as held in case of Jagjit Singh v. State of U.P.¹, and the judgment is hereby over-ruled.

(B)

The legal fiction envisaged under sub-rule (2)(a) and (b) of Rule 49-A shall come into play and a deemed suspension by an order of the appointing authority shall come into existence if the Government Servant is detained in custody for more than forty-eight hours even in absence of any order in writing passed by the appointing authority.

(C)

The deemed suspension provided under sub-rule (2) of Rule 49-A shall be confined to the period of detention in custody and not beyond that.

(D)

The deemed suspension by an order of the appointing authority under the legal fiction provided in sub-rule (2) may be continued after release by the appointing authority by passing an express order taking into account the guidelines provided in other sub-rule of Rule 49-A according to the facts and circumstances of the case.

(E)

The deemed suspension under sub-rule (2) of Rule 49-A may be modified or revoked by the appointing authority on a representation made by the Government Servant which shall be considered and decided taking into consideration the guidelines provided in sub-rules (1) and (1-A) of Rule 49-A.

“13.

Rule 10 is the pivotal provision around which the controversy revolves, and it reads as follows:

“10.

Suspension.—(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other author-ity empowered in that behalf by the President, by general or special or-der, may place a government servant under suspension—

(a)

where a disciplinary proceeding against him is contemplated or is pending; or

(aa)

where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

(b)

where a case against him in respect of any criminal offence is under investigation, inquiry or trial: Provided that, except in case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant-General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an au-thority lower than the appointing authority, such authority shall forth-with report to the appointing authority the circumstances in which the order was made.

(2)

A government servant shall be deemed to have been placed under sus-pension by an order of appointing authority—

(a)

with effect from the date of his detention, if he is detained in cus-tody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

(b)

with effect from the date of his conviction, if, in the event of a con-viction for an offence, he is sentenced to a term of imprisonment ex-ceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

Explanation.—The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the im-prisonment after the conviction and for this purpose, intermittent peri-ods of imprisonment, if any, shall be taken into account.

(3)

Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant under suspension is set aside in appeal or on review under these rules and the case is remit-ted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retire-ment and shall remain in force until further orders.

(4)

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 disciplinary 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 im-posed, 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 inten-ded to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case.

(5)(a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.

(b)

Where a government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the government servant shall continue to be under suspension until the termination of all or any of such proceedings.

(c)

An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.”

14.

Rule 10(2) is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order other-wise specifically passed under other provisions. It does not speak of any period of its effectiveness. Rules 10(3) and 10(4) operate conceptually in different situations and need specific provisions separately on ac-count of interposition of an order of a court of law or an order passed by the appellate or reviewing authority and the natural consequences in-evitably flowing from such orders. Great emphasis is laid on the expres-sion “until further orders” in the said sub-rules to emphasise that such a prescription is missing in sub-rule (2). Therefore, it is urged that the or-der is effective for the period of detention alone. The plea is clearly without any substance because of sub-rules (5)(a) and (5)(c) of Rule 10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one contemplated under sub-rule (2). The said provision under Rule 10(5)(a) makes it crystal clear that the order continues to remain in force until it is modified or revoked by an authority competent to do so while Rule 10(5)(c) em-powers the competent authority to modify or revoke also. No exception is made relating to an order under Rules 10(2) and 10(5)(a). On the con-trary, it specifically encompasses an order under Rule 10(2). If the order deemed to have been made under Rule 10(2) is to lose effectiveness au-tomatically after the period of detention envisaged comes to an end, there would be no scope for the same being modified as contended by the respondents and there was no need to make such provisions as are engrafted in Rules 10(5)(a) and (c) and instead an equally deeming pro-vision to bring an end to the duration of the deemed order would by it-self suffice for the purpose.

16.

Reference has been made to sub-rule (5)(b) of Rule 10. According to the High Court the same appears to have been made “ex majore cautela”. Conceptually, sub-rules (5)(a) and (5)(b) operate in different fields and for different purposes i.e. when more than one disciplinary proceedings come to be initiated to cover all such situations. Both the provisions have to be read harmoniously. Otherwise, sub-rule (5)(a) would become meaningless and sub-rule (5)(c) purposeless and both provisions would be rendered otiose and superfluous.

17.

View of the Full Bench of the Allahabad High Court [1997 All LJ 963 : 1997 Lab IC 2592 (FB)] that the legal fiction created ceases to be effective for the purpose of suspension while operative for other pur-poses is clearly unsustainable and we do not approve of the same.

28.

Strong reliance was placed on Nelson Motis v. Union of India [(1992) 4 SCC 711 : 1993 SCC (L&S) 13 : (1993) 23 ATC 382] to con-tend that omission of the expression “until further orders” in Rule 10(2) was conscious and, therefore, the period covered for “deemed suspen-sion” was restricted to the period of detention. Such plea is without sub-stance. In Nelson case [(1992) 4 SCC 711 : 1993 SCC (L&S) 13 : (1993) 23 ATC 382] the respective scope and ambit of Rule 10(2) and Rule 10(3) fell for consideration. As indicated above, the said provi-sions apply in conceptually and contextually different situations and have even no remote link with the situation envisaged under Rule 10(2). In fact, this Court in the said case categorically observed as under : (SCC p. 716, para 8) “The comparison of the language with that of sub-rule (3) reinforces the conclusion that sub-rule (4) has to be understood in the natural sense.”

“7.

It is well settled that a judgment of a Court is not to be read mechan-ically as a Euclid's theorem nor as if it was a statute.

8.

Onthe subject of precedents Lord Halsbury, L.C., said in Quinn vs. Leathem, 1901 AC 495 : "Now before discussing the case of Allen Vs. Flood (1898) AC and what was decided therein, there are two observations of a general char-acter which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the par-ticular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposi-tions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow lo-gically from it. Such a mode of reasoning assumes that the law is neces-sarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all." We entirely agree with the above obser-vations.

9.

In Ambica Quarry Works vs. State of Gujarat & others (1987) 1 SCC 213 (vide paragraph 18) this Court observed : "The ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it ac-tually decides and not what logically follows from it". 10. In Bhavnagar University vs. Palittana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 (vide paragraph 59), this Court observed : "It is well settled that a little differ-ence in facts or additional facts may make a lot of difference in the pre-cedential value of a decision". 11. As held in Bharat Petroleum Corpor-ation Ltd. & another vs. N.R. Vairamani & another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situ-ation. In the same judgment this Court also observed : "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's the-orems nor as provisions of the statute and that too taken out of the con-text. These observations must be read in the context in which they ap-pear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret stat-utes, they do not10 interpret judgments. They interpret words of stat-utes; their words are not to be interpreted as statutes". (emphasis sup-plied)

12.

In London Graving Dock Co. Ltd. vs. Horton (1951 AC 737 at page 761), Lord Mac Dermot observed : "The matter cannot, of course, be settled merely by treating the ip-sissima verba of Willes, J. as though they were part of an Act of Parlia-ment and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge".

13.

In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid Said, "Lord Atkin's speech ... is not to be treated as if it was a stat-ute definition; it will require qualification in new circumstances, Me-garry, J. in (1971) 1 WLR 1062 observed : "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament".

14.

And in Herrington vs. British Railways Board (1972 (2) WLR 537) Lord Morris said : "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be re-membered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying preced-ents have become locus classicus : Each case depends on its own facts and a close similarity between one case and another is not enough be-cause even a single significant detail may alter the entire aspect. In de-ciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and11 branches. My plea is to keep the path of justice clear of obstruc-tions which could impede it." (emphasis supplied)

15.

The same view was taken by this Court in Sarva Shramik Sanghatana (K.V.), Mumbai vs. State of Maharashtra & Ors. AIR 2008 SC 946 and in Government of Karnataka & Ors. vs. Gowramma & Ors. AIR 2008 SC 863.

“Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy dis-cussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed: "The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation ap-propriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge." In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, " Lord Atkin's speech.....is not to be treated as if it was a statute definition it will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:

12 "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be re-membered that judicial utterances made in the setting of the facts of a particular case. " Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have be-come locus classicus: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cor-dozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad re-semblance to another case is not at all decisive."

"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

“11.

Reliance on the decision without looking into the factual back-ground of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is import-ant to analyse a decision and isolate from it the ratio decidendi. Accord-ing to the well- settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferen-tial. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;13 (ii) statements of the prin-ciples of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the es-sence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a ques-tion before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. V. Dhanwanti Devi and Ors. (1996 (6) SCC 44). A case is a precedent and binding for what it explicitly de-cides and no more.

The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and quali-fied by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.

12.

Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the con-text in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provi-sions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as stat-utes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed: “The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of inter-pretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.”14 13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, Lord Atkins speech…..is not to be treated as if it was a statute definition. It will require qualification in new circum-stances. Megarry, J in (1971) 1 WLR 1062 observed: One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said: “There is always peril in treating the words of a speech or judgment as though they are words in a legis-lative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.”

14.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

15.

The following words of Lord Denning in the matter of applying pre-cedents have become locus classicus:

“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”

“Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”

“According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. v. Dhanwanti Devi and Ors. (1996 (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.”

“58.

The well-settled principles required to be followed by a court while inter-preting a provision of a statute is that the intention of the legislature is primar-ily to be gathered from the language used, and consequently, a construction which results in rejection of words as meaningless, has to be avoided. It is not a sound principle of construction to brush aside words or phrase in a statute as being inapposite surplusage if they can have appropriate application in circum-stances conceivably within the contemplation of the statute. In interpretation of statutes, the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The legislature is deemed not to waste its words, or to say anything in vain. [See: Mithilesh Singh v. Union of India, reported in (2003) 3 SCC 309].

59.

Similarly, in the case of Padma Sundara Rao v. State of Tamil Nadu, re-ported in (2002) 3 SCC 533, it was held that two principles of construction – one relating to casus omissus, and the other in regard to reading the statute as a whole appear to be well-settled. Under the first principle, the rule of casus omissus cannot be supplied by the court except in the case of clear necessity. The rule of casus omissus should not be readily inferred and for that purpose, all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context of the statute and other clauses thereof, so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so, if literal construction of a particular clause leads to manifestly absurd or anoma-lous results, which could not have been intended by the legislature. Therefore, if the language is plain, there is no necessity of taking aid of external aid for gathering the real intention of the legislature.

60.

Over and above, we should bear in mind the following well-known rule of interpretation of the statute reiterated by this Court in the case of Union of India v. Deoki Nandan Agarwal, reported in 1992 Supp (1) SCC 323:

“It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the Legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omis-sion in the words used by the Legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the Legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the Constitutional harmony and comity of instrumentalities.” (Emphasis added)

“12.

In the ordinary sense, ‘shall’ is obligatory and ‘may’ is directory, but that is not a universal rule. In certain contexts, ‘shall’ can also be directory. In such a situation, the interpretation of the word ‘shall’ is what will determine the va-lidity of these Rules.

12.1

A Constitution Bench in State of U.P. v. Manbodhan Lal Srivas-tava6 while interpreting the word ‘shall’ as used in Article 320 of the Constitu-tion of India speaking through B.P. Sinha J. as he then was, held thus:

“12…. Hence, the use of the word “shall” in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word “may” has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction —Article 261 at p. 516, is pertinent:

“The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must (1957) 2 SCC 759 govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the conse-quences which would follow from construing it the one way or the other.…””

12.2

In State of U.P. v. Babu Ram Upadhya7, a Constitution Bench was con-cerned with the nature of para 486 of the Police Regulations in connection with chapter XIV CrPC. K. Subba Rao J. in para 28 referred to various authorities and concluded in para 29 as follows:

“29.

The relevant rules of interpretation may be briefly stated thus:

“When a statute uses the word “shall”, prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Leg-islature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of com-plying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the pro-visions, the fact that the non- compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.”

12.3

A Constitution Bench in Bhikraj Jaipuria v. Union of India8 while refer-ring to Maxwell on Interpretation of Statutes, observed as follows:

“16.

… Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute. If the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity : if it is directory, penalty may be incurred for non-compliance, but the act or thing done is re-garded as good. As observed in Maxwell on Interpretation of Statutes, 10th Edn., p. 376:

“It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no in-validating consequence in its disregard, or as imperative, with an 1960 SCC OnLine SC 5 1961 SCC OnLine SC 34 implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the en-actment. It may perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and when that re-sult would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and ob-ject of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be re-garded.” Lord Campbell in Liverpool Borough Bank v. Turner [(1861) 30 LJ Ch 379] observed:

“No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for dis-obedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”