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Judgment
The petitioner was selected in the year 1979 by the Fertiliser Corporation of India Limited, which is a Company registered under the Companies Act, 1956, as a candidate belonging to the Scheduled Tribe against a post reserved for the Scheduled Tribes on the strength of a caste certificate issued to the petitioner in the year 1971, declaring him to be a Scheduled Tribe. It appears that due to some personal disputes between the petitioner and his brother-in-law one Dr. K. Nageswara Rao, who sent representations to the employer of the petitioner and the employer of the petitioner''s brother, alleging that the petitioner and his brother do not belong to Scheduled Tribe and they have obtained false certificates for the purpose of securing the job. On receipt of such complaints, the Commissioner of Tribal Welfare Hyderabad, conducted an enquiry and came to a conclusion that the Petitioner''s family did not belong to ''Konda Kapu'' community and hence they do not belong to Scheduled Tribe. After reaching such a conclusion, the Commissioner of Tribal Welfare, addressed a letter to the respondents against the petitioner and it appears from the record that pursuant to the communication of the Commissioner of Tribal Welfare, an enquiry was conducted by the respondents, but it appears from the facts on the record, that no action was initiated on the basis of the enquiry, though enquiry was conducted during the years 1991-92.
When the matters stood thus, the Collector, Vizianagaram, it appears, issued proceedings dated 8-9-1993, to the effect that the family of the petitioner do not belong to ''Konda Kapu'' community (Scheduled Tribe) and the same was communicated to the Visakhapatnam Port Trust, where the petitioner''s brother was working. On the basis of the communication from the Collector, Vizianagaram, the brother of the petitioner was kept under suspension. The brother of the petitioner questioned the proceedings of the Collector, Vizianagaram in Writ Petition No. 14522 of 1993 on the file of this Court, and it appears, this Court by an interim order dated 28-9-1993 suspended the operation of the proceedings of the Collector, Vizianagaram and by final order dated 2-5-1997 the proceedings of the Collector, Vizianagaram were quashed in the above writ petition. However, while quashing the proceedings of the District Collector, Vizianagaram, this Court directed the District Collector, Vizianagaram, to hold an enquiry after giving sufficient opportunity to the petitioner''s brother.
In the meanwhile, the District Collector, Vizianagaram, informed the respondent-Company herein by a letter dated 9-9-1995 that the petitioner had obtained a forged ''forged caste certificate'' On the basis of the said letter, the respondents-Company issued a show-cause notice to the petitioner. It appears, the petitioner filed his objections and thereafter, without conducting any enquiry, the petitioner was dismissed from service of the respondents-Company by the proceedings of the respondents-Company dated 8-9-1997.
Questioning the said order of dismissal of the respondent-Company, the petitioner herein, earlier filed a Writ Petition No.24495 of 1997 and the same was allowed by a judgment of this Court dated 26-3-1998 on the ground that no enquiry was conducted before passing the order of dismissal. However, while allowing the said Writ Petition, this Court observed:
"... However, the respondents are free to hold an enquiry in the matter and pass appropriate orders after conducting the enquiry.."
In view of the observations referred to above, the respondents-Company issued proceedings dated 22-4-1998, wherein it was informed the petitioner that the respondents-Company proposed to hold an enquiry against him under Rule 23 of the Fertiliser Corporation of India Limited Employees'' (Conduct, Discipline and Appeal) Rules, 1972 and a charge-sheet is annexed to the proceedings. The petitioner is called upon to submit his explanation within 15 days from the date of receipt of the communication. The disputed portion of the proceedings is as follows:
"In view of the observations of the Honourable High Court of Judicature, Andhra Pradesh, Hyderabad in W.P.No.24495 of 1997 Shri Lanka Satyanarayana-will be deemed to be under suspension pending enquiry, as per Clause 17 (4) of FCI Employees'' (Conduct, Discipline & Appeal) Rules, 1972, since the original date of dismissal - Ref.No.R PL PF 1662 /1833, dated 8-9-1997 and shall continue to be under suspension till further orders or disposal of his case.
He will be eligible for subsistence allowance on production of non-employment certificate as per Rule 18 (1) of FCI Employees (Conduct, Discipline & Appeal) Rules, 1972."
A counter-affidavit is filed on behalf of the respondent-Company.
The learned Counsel for the petitioner Sri Tamada Gopalakrishna, argued that in view of the judgment of the Supreme Court reported in H.L. Mehra Vs. Union of India (UOI) and Others, , the action of the respondent-Company in seeking to treat the petitioner as to have been under suspension pending enquiry with effect from the original date of dismissal i.e., 8-9-1997 as per Clause 17(4) of the above referred Rules, is illegal. It is further submitted by the learned Counsel for the petitioner that the Rule 17(4) of the above-mentioned Rules itself is ultra-vires and unconstitutional.
To examine the submissions of the learned Counsel for the petitioner, it is necessary to analyse the ratio of the judgment of the Supreme Court referred to above. One Mr. H.L Mehra was an employee of the Government of India, working in the Post and Telegraph Department. He was prosecuted for certain offences in the criminal Courts. During the pendency of the prosecution, a departmental enquiry was initiated against him. In the meanwhile the criminal case against Mr. Mehra ended up in conviction. President of India dismissed Mr. Mehra from the service in view of the conviction. The matter was eventually carried in an appeal to the Supreme Court; ultimately, the Supreme Court had set aside the order of the conviction of Mr. Mehra, In view of the reversal of the conviction order by the Supreme Court, the President of India, by a fresh order, set aside the dismissal of the said Mr. Mehra. While setting aside the order of dismissal, the President directed the continuance of the enquiry instituted against Mr. Mehra and also further directed that during the pendency of such an enquiry Mr. Mehra be continued under suspension, relying on the powers conferred on the Rule 10 of the CCS (CCA) Rules, 1965.
The question arose whether the above-mentioned Rule 10 authorised the President of India, to direct the continuance of suspension of the appellant therein, pending further enquiry.
Interpreting Rule 10 of the above referred Rules, Their Lordships came to the conclusion having regard to the language of the Rules that none of the clauses of the Rule 10 authorised the President of India to give such a direction in view of the fact, the Rule contemplated the continuance of suspension of an employee if the Government sought to conduct a further enquiry into the conduct or misconduct of the employee, which resulted in the dismissal, removal or compulsory retirement of the employee, but could not be sustained in a Court of law on some ground or the other or reversal in an appeal under the Rules. Their Lordships held that none of the clauses contemplated a case where the order of the termination or dismissal or removal etc., was set aside by the President of India hence, none of the clauses of Rule 10 applied to the case before their Lordships and for that reason, their Lordships came to the conclusion that the direction of the President of India insofar as it directed that Mr. Mehra be deemed to be under suspension from the date of his original dismissal from the service was not authorised by the law.
Coming to the facts of this case, Rule 17(4) of the Fertilizer Corporation of India Limited reads as follows :
"(4) Where a penalty of dismissal or removal from service imposed upon an employee 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 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, the employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders."
and this Rule is ''inpari maleria'' with Rule 10(4) of the CCS (CCA) Rules, 1965 which was the subject matter of interpretation in the above referred judgment of the Supreme Court. However, that judgment is of no assistance to the petitioner herein, for the reason in the present case, the order of dismissal of the petitioner herein is set aside by an order of this Court and therefore the situation falls clearly within the ambit of sub-rule (4) of Rule 17. Therefore, the first submission of the petitioner must be rejected.
Corning to the second submission of the petitioner, that the Rule 17(4) insofar as it seeks to give retrospective effect to the orders of the suspension passed by the respondent-Company is ultra-vires the Constitution of India, deserves consideration.
It is a settled principle of law that no ''non sovereign law making body'' has the power to make ''law'' retrospectively and the respondent-Fertilizer Corporation of India Limited is a Company incorporated under the Companies Act. it is a non-sovereign body, though it might answer the description of the expression ''state'' within the meaning of Article 12 of the Constitution of India. The mere fact mat a particular body answers the description of ''state'' for the purpose of Article 12 does not necessarily clothe the body, with all the powers of the ''state'' as understood in the jurisprudential sense. Therefore, I am of the opinion that sub-rule (4) of Rule 17, is inasmuch as seeks to create a legal fiction to the effect that in a situation covered by the said Rule, the employee shall be deemed to have been under suspension from the date of the original order of the dismissal or removal is clearly illegal and violative of Article 14 of the Constitution of India.
The learned Counsel for the respondent-Company- Sri Gopata Rao, while relying on a judgment of the Supreme Court reported in Jeevaratnatn v. State, 1966 (2) SLR 204 submitted that even assuming that Rule 17 (4) so far as it creates a legal fiction as mentioned above is illegal, the impugned order in this case must be held to be valid, atleast with effect from the date on which it is passed. In the above case, one Kalyanasundaram who was working as the Deputy Tahsildar in the Revenue Department of the Government of Madras, was dismissed from service by an order of dismissal dated 17-10-1950 with effect from 20-5-1949. Questioning the said dismissal, Kalyanasundaram filed a suit seeking a declaration that his dismissal was illegal. The said suit was dismissed by the trial Court which was confirmed by the High Court of Madras. In the Special Leave Proceedings before the Supreme Court, their Lordships of the Supreme Court held that the order of the dismissal with retrospective effect, though not valid, (which decision, their Lordships reached, having regard to the legal environment of the case), came to the conclusion that the order is valid from the date on which the Act was passed. Their Lordships held tliat such an order is severablc and must be given effect with reference to the date on which the authority could have legally passed the order.
This judgment of the Supreme Court supports the submission made by the learned Counsel for the respondents and I therefore accept the submission of the learned Counsel for the respondents.
In the circumstances, the writ petition is disposed of with a declaration that the proceedings of the respondent-Company dated 22-4-1998 insofar as they seek to treat the petitioner to have been under suspension pending an enquiry with effect from 8-9-1997, is illegal, but such a suspension would be valid only with effect from 22-4-1998, for the reasons given above. Consequentially the further prayer of the petitioner that he is entitled for his salary and other emoluments as if he were in service, from 8-9-1997 to 22-4-1998 is granted.
In the result, the writ petition is partly allowed, but in the circumstances, no costs.