Gopal Krishan Saini vs State of Punjab

K.C. Gupta, J.—This is a writ petition filed by Sh. Gopal Krishan Saini (now deceased) under Articles 226/227 of the Constitution of India for issuing writ of certiorari for quashing order of suspension dated 5.2.1983, Annexure P-1 and also for a writ of mandamus directing the State of Punjab, respondent No. 1, to pay his salary since 1.2,1983 as Member of Punjab Public Service Commission,

Briefly stated that facts are that Sh. Gopal Krishan Saini was appointed as Member of Punjab Public Service Commission with effect from 30.5.1981 for a period of six years. He was placed under suspension by the then Governor of Punjab on 5.2.1983 vide An-nexure P-1 in view of Article 317(2) of the Constitution of India for holding an enquiry into an allegation of misbehaviour against him as a Member of Punjab Public Service Commission. He was about 53 years of age at that time.

Thereafter, on a move by Punjab Government, the Presidenl made a reference to the Supreme Court of India in accordance with Article 317(1) of the Constitution of India. The salary of the petitioner was withheld from the date of suspension. He moved the Government in March 1983 for release of his emoluments by payment of subsistence allowance but the Government did not reply, although he was entitled to full pay as long as he continued to be a member of the Commission. He also averred that the order of suspension was void as it had not been passed by a competent authority which according to him was the Council of Ministers and since the matter was not placed before Council of Ministers, it was void ab initio. With these allegations, the above mentioned writ petition was tiled.

Vide order dated July 7, 1983, notice of motion was issued.

The State of Punjab filed reply by way of short affidavit of Sh. Devinder Kashyap, then Under Secretary to Government of Punjab, Department of Personnel and Administrative Reforms. It was stated in the affidavit that ex post facto approval was obtained from the Council of Ministers after the petitioner was placed under suspension and as such the order of suspension was not void ab initio. It was also stated that there was no provision in the Constitution or in the Punjab State Public Service Commission (Conditions and Service) Regulations, 1958, which provided for the grant of any subsistence or any other kind of allowance to such Members of the Commission who were placed under suspension. It was next stated that no specific order had been made by the Governor in this behalf under Regulation No. 15 of the Regulations and as such the petitioner was not entitled to any allowance/emoluments with effect from the date of his suspension. Ultimately, the writ petition was admitted on September 9, 1983.

During the pendency of the writ petition. Sh. Gopal Krishan Saini, petitioner, died on 10.1.1999 at Ropar leaving behind his legal representatives, Varin-der Chaudhary, petitioner and Arvind Chaudhary, respondent No. 4, sons and Smt. Krishna Chaudhary, widow, respondent No. 3. Accordingly, they were brought on file vide order dated 18.8.1999 passed in CM. No. 11289 of 1999.

I have heard Sh. A.P.S. Deol, counsel for Varin-der Chaudhary, L.R. of Sh. Gopai Krishan Saini, Sh. H.S. Sran, DAG, Punjab, for respondent Nos. 1 and 2 and Sh. Kapil Kakkar, Advocate, for other L.Rs. of Sh. Gopal Krishan Saini, i.e. respondent Nos. 3 and 4 and carefully gone through the record.

In para No. 1 of the petition, Sh. Gopai Krishan Saini had mentioned that he was appointed as member of the Punjab Public Service Commission with effect from 30.5.1981 but in the affidavit dated 23.4.1987 which he had filed, it is mentioned that he was appointed as Member of Punjab Public Service Commission on 30.5.1980. However, Sh. P.C. Sangar, Under Secretary, Personnel, in reply to the application u/s 151 C.P.C. for release of salary etc. had stated in Para No. 2 that he was appointed as Member of Punjab Public Service Commission on 30.3.1980 and he was suspended on 5.2.1983. In any case, he completed his six years during the pendency of the enquiry in 1986 i.e. on 29.5.1986. There is no document on file to suggest as to what is the fate of the enquiry. Any how, no adverse finding regarding the misconduct of Sh. Gopal Krishan Saini by the Hon''ble Supreme Court has been placed on file. Learned counsel for the State is unable to tell about the fate of the enquiry. It must have been filed by now. The only conclusion is that there is no tangible evidence on file to suggest that Sh. Gopai Krishan Saini was found guilty of grave misconduct during his tenure as Member of Punjab Public Service Commission. Copy of the suspension order, Annexure P-1, dated 5.2.1983 reads as under :-

Raj Bhawan, Punjab Chandigarh

Whereas the President of India has, vide his order dated 27th January, 1983 made a reference to the Supreme Court under clause (1) of Article 317 of the Constitution for holding an enquiry into an allegation of misbehaviour against Sh. Gopal Krishan Saini, Member of Punjab Public Service Commission.

Now, therefore, in exercise of the powers conferred upon me by clause (2) of Article 317 of the Constitution, I, Dr. M. Channa Reddy, the Governor of Punjab hereby place Sh. Gopal Krishan Saini, Member of Punjab Public Service Commission under suspension with immediate effect until the President of India shall have passed orders on receipt of report of the Supreme Court on the aforesaid reference.

Sd/- M. Channa Reddy, Governor of Punjab"

Dated, Chandigarh, the 5th February, 1983.

The Punjab Government had framed Rules for conduct of business and the same are called Rules of Business of the Government of Punjab, 1980. Rules4 and 5 regarding disposal of business reads as under:

"4. The counsel (Council ?) shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these rules whether such orders are authorised by an individual Minister on a matter pertaining to his portfolio or as a result of discussion at a meeting of the Council or whomsoever otherwise.

Subject to the orders of the Chief Minister under rule 11, all cases referred to in the Schedule shall be brought before the Council in accordance with the provisions of the rules contained in Part II of these rules.

Provided that no case in regard to which the Department of Finance is required to be consulted under Rule 7 shall, save in exceptional circumstances and under the directions of the Chief Minister, be discussed by the Council unless the Finance Minister has an opportunity for its consideration."

Rule 11 further reads as under :-

"All cases referred to in the Schedule shall be submitted to the Chief Minister after consideration by the Minister Incharge with a view to obtaining his orders for circulation of the case under Rule 12 or for bringing it up for consideration at a meeting of the Council"

In the Schedule mentioned in Rule 5, Item No. 6 of the Schedule reads as under :-

"Any proposal involving any action for the dismissal, removal or suspension of a member of the State Public Service Commission."

Thus, according to Rule 5 read with the Schedule, only Council of Ministers were competent to pass order and recommend for the suspension of Sh. Gopal Krishan Saini as member of Punjab Public Service Commission under Article 317 of the Constitution of India. However, it was admitted by the State of Punjab in the affidavit which was filed by way of short reply that before suspension by the Governor of Punjab, the Council of Ministers had not approved his suspension. On the other hand, the approval of the Council of Ministers for the action taken by the State Government was obtained ex post facto. In my opinion, since the matter related to the grave misconduct of a Member of Punjab Public Service Commission who was holding a Constitutional post, so, it was desirable that Council of Ministers must have approved his suspension before the Governor placed him under suspension. It is not a mere formality but is mandatory. The ex post facto approval obtained by the State Government from the Council of Ministers cannot save the act of the Governor in placing Sh. Gopal Krishan Saini under suspension, as the Council of Ministers had not applied their mind at the initial stage, which was mandatory, so, the suspension was void ab initio. Reference in this connection may be made to an authority of the Hon''ble Supreme Court in Marathwada University Vs. Seshrao Balwant Rao Chavan, , in which it was observed as under at page 1583:-

"Where the Executive Council on receiving report of Committee appointed to investigate into allegations against an officer in the discharge of duties, exonerating the officer, entrusted the question by a resolution to the Vice Chancellor and he, purporting to act under the authority of the resolution, ordered departmental enquiry and dismissed the officer and there was also no prior approval of the Chancellor, which is mandatory, to the delegation of power by the Executive Council to the Vice Chancellor, the dismissal was not sustain-able as there was no delegation in respect of action taken and the resolution delegating power was not in harmony with statutory requirement. By the power delegated under the resolution the Vice Chancellor could either accept or reject the report with intimation to the Executive Council. He could not have taken any other action and indeed he was not authorised to take any other action. In this connection, subsequent ratification of the action by the Executive Council would be of no avail. The principles of ratification apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified."

The counsel for the State of Punjab contended that there was no provision in the Constitution or in the Punjab State Public Service Commission (Conditions and Service) Regulations, 1958, which provides for the grant of any subsistence or any other kind of allowance to such Member of Commission who was placed under suspension. He also contended that specific order had not been passed by the Governor on this behalf under Regulation 15 of the Regulations and as such he was not entitled to any subsistence allowance. Regulation 15 reads as under :-

"In respect of any matter for which special provision is not made by these regulations, the conditions of service of a person serving as a Member of the Commission or of its staff shall be governed by the rules and orders for the time being applicable to such classes of Government servants as may be specified by the Governor.

It is true that the Civil Service rules are applicable only to Government employees and had not been made applicable to the Members of the Commission vide notification issued by the Governor as provided under Regulation 15 ibid. If it is presumed that the ex post facto approval granted by the Council of Ministers was vahd and Sh. Gopal Krishan Saini was rightly placed under suspension even then there is no provision in the regulations which governed the conditions of service of the Member of Punjab Public Service Commission, which would specifically bar the payment of subsistence or any other kind of allowance to such Member of the Commission. Under the Civil Service Rules, a Government servant is entitled to subsistence allowance during the period of suspension. Therefore, on account of equity, justice and fair play, Sh. Gopal Krishan Saini was entitled to subsistence allowance during the period of suspension, even if there is no specific provision in the Regulations of 1958. There is other aspect of the matter. Admittedly, no adverse report had come so far against the misconduct of Sh. Gopal Krishan Saini as it was stated that the matter was referred by the President of India to the Hon''ble Supreme Court for enquiry. Certainly, it cannot remain pending for the last about more than 17 years. The only presumption is that it had ended and nothing adverse has come out against him. Sh. Gopal Krishan Saini superannuated after competing his term of the period of six years somewhere in 1986. In such circumstances, he was entitled to the full pay with allowances for the unexpired period of his which was about six years.

The next question arises whether Sh. Gopal Krishan Saini was entitled to pension during his life time or not. Part V of the Punjab State Public Service Commission (Conditions and Service) Regulations, 1958 deals with pension and reads as under :-

Part V -Pension :

(1) In the case of a member who at the date of his appointment was in the service of the Central or a State Government service as member shall count for pension under the rules applicable lo the service to which such member belonged, and unless the member be a member of the Indian Civil or Administrative Service or entitled to a pension under Army Regulations, service as Chairman shall also count as service in the higher grade for the special additional pension and service as member, as service in the lower grade for the special additional pension under rule 6.15 of the Civil Services Rules (Punjab), Volume II, if he is governed by the old Pension Rules in force prior to the 10th of June, 1951, or other rules applicable to him at the date of his appointment to the Commission, in case provision for the grant of special additional pension is there in those rules.

(2) In the case of a retired Government servant, service as Member shall not count as qualifying service for the purpose of recalculating his pension at the expiry of his tenure of office as member.

(3)(i) A member, who at the date of his appointment as such was not in the service of the Central or a State Government shall on his ceasing to hold office as such Member be paid a pension of six hundred rupees per month in the case of Chairman and five hundred rupees per month in the case of a Member :

Provided that no such pension shall be payable to a member :-

(a) unless he has completed not less than three years of service for pension as such member; or

(b) he has been removed from office as such Member.

(ii) Pension under this sub-regulation shall be payable to a Member for life.

Provided that no such pension shall be payable during any period for which such member may, after his retirement as such hold office as the Chairman or Member of the Union Public Service Commission or as the Chairman of the Punjab Public Service Commission or of any other Punjab State Public Service Commission.

Explanation - Where a Member, who has completed not less than threeyears of service for pension, resigns from his post and such resignation is accepted by the Governor, pension shall be payable to such member in accordance with these Regulations.

The Chairman or Member, who is entitled to pension under clause (3), shall also be titled to graded relief in pension at the rates admissible to Punjab Government Pensioners."

Subject to the conditions laid down in Government of Punjab, Department of Finance, letter No. 1/44/87-1-FDIII/11362, dated the 14th October, 1987, the Chairman or the Member who has been granted pension under clause (3) prior to the first day of January, 1986, shall with effect from 1st January, 1986, and upto the date on which the rate of pension in his case is revised, also entitled to interim relief at the rate of 15 per cent of the amount of the basic pension or rupees fifty per month whichever is more.

A perusal of the above provisions would reveal that a Member of the Commission (like the case in hand) is entitled to pension for life if he has completed 3 years of service as such and has not been removed from service. The Regulations do not provide for any other clause/regulation regarding the grant of pension or to the contrary.

It would be relevant to point out here that Article 317(2) of the Constitution of India mandates for the passing of a specific order by the President of India on receipt of the report of the Supreme Court of India on reference made under Article 317(1). If no order of removal has been passed, then a Member of the Commission is entitled to pension for life subject to the above mentioned conditions.

The Punjab Government servants are governed by the Punjab Civil Service Rules (Vol. II) Chapter II General Provisions relating to Grant of Pensions'' Sec-tion-I General in respect of their pension and other re-tiral benefits. Rule 2.2 (b) and (c) provide for a complete code laying down the conditions under which pension can be withheld or withdrawn, permanently or for a specified period. Recovery from pension is also dealt with in Rule 2.2(b).

Rule 2.2(c) obligates for the release of provisional pension, where any departmental or judicial proceedings are instituted from the date of the retirement (completion of term of the Member in the instant case) till the date of passing of final orders.

On the same analogy, the member of the Commission is entitled to provisional pension with effect from the date of his retirement.

Even the Hon''ble High Court of Punjab and Haryana has in a Full Bench Judgment titled as Dr. Ishar Singh v. State of Punjab and another, 1994(1) SCT 563 (P&H) , held to the following effect :-

"The State is bound to release the 100 per cent pension at the time of superannuation, may be provisionally.

(Refer Para 81 of page 575)."

Therefore, Gopal Krishan Saini was entitled to pension from the date of his superannuation. Nonpayment of pension is not only oppressive to the retiree but also amounts to punishment before trial. Since, at the time of superannuation of the member, he was entitled to subsistence allowance, so, non-payment of the same vitiated the entire proceedings as the same were violative of the principle of natural justice. This has been so laid down by the Hon''ble Apex Court in the case titled as Ghanshyam Das Shrivastava Vs. State of Madhya Pradesh, .

Even if it is presumed that there are no rules other than the Regulations of 1958 governing the pensionary benefits of a Member of the Commission, even then such member is entitled to full salary during the period of suspension and would be entitled to the pension calculated accordingly. He would be entitled to get pension during his life time. However, there is no provision that after his death his wife would get pension.

Therefore, for the fore-going reasons, the petition is accepted and the order dated 5.2.1983, Annexure P-1, is quashed and the Punjab Government, respondent No. 1 is directed to pay his salary since 1.2.983 as a Member of Punjab Public Service Commission till he superannuated and further he is entitled to the pension during his life time. The legal heirs of Sh. Gopal Krishan Saini, namely, Varinder Chaudhary, petitioner, Arvind Chaudhary, respondent No. 4 (sons) and Smt. Krishna Chaudhary, respondent 3 (widow) would be entitled to the arrears of salary and pension etc. subject to the decision of the Civil Court as it is stated that a dispute between the legal heirs about the inheritance of the property of Sh. Gopal Krishan Saini is pending in the Civil Court, Ropar.

Petition allowed.