Decided on March 17,1960

STATE Respondents


Chhangani, J. - (1.)THIS is a plaintiff's second appeal in a suit for declaration that the order No. 507/s (iii) L/gen/md dated 19th August, 1952 of the Director of Medical and Health Services, Rajasthan, Jaipur of the defendant State dismissing the plaintiff from services is irregular, illegal, void and inoperative and that the plaintiff continued to be in the service of the defendant as a Male nurse-cum-compounder entitled to pay and for arrears of salaries amounting to Rs. 2,808/3/.
(2.)THE facts giving rise to this appeal may very briefly be stated as follows:
The plaintiff was employed as a Male nurse-cum-compounder and was posted in the General Hospital, Kotah in the employment of the defendant, the State of Rajasthan in the Medical and Health Department. According to him, he was getting a salary of Rs. 88/- plus dearness allowance of Rs. 25/- per month in what is known as the third-grade Male nurse-cum-compounder. He was suspended from service by an order of the Assistant Director of Medical and Health Services dated 3rd July, 1952 and was eventually dismissed by the order of the Director of Medical and Health Services dated 19th August, 1952. He instituted the present suit on 9th July, 1954 in the court of the Civil Judge, Kotah and prayed for the declaration stated above, on the ground that the dismissal order was passed without proper compliance with the provisions of Art. 311 of the Constitution of India. The defendant State opposed the plaintiff's suit and pleaded that there was no irregularity in the proceedings resulting in the dismissal of the plaintiff. The State did not admit the plaintiff's allegations regarding his grade and scale of salary and took a stand that he was in the fourth grade and was getting a salary of Rs. 48/- plus dearness allowance of Rs. 20/ -.

The trial court framed the following six issues: - (1) Whether the plaintiff was getting salary of Rs. 88/- p. m. plus dearness allowance of Rs. 25/- and was placed in third grade male compounder? (2) Whether the order of suspension is unauthorised, illegal, and without jurisdiction? (3) Whether the order of dismissal dated 19th August, 1952 is void and illegal ? (4) Whether two responsible opportunities are necessary before dismissal of government servant and if so, whether the same was not given to the plaintiff before dismissal. (5) Whether the plaintiff is entitled to recover Rs. 2808/3/- from the defendant? (6) Whether proper notice under sec. 80 C. P. C. was given to the defendant. (7) To what relief the parties are entitled ?

After recording the evidence of the parties, the trial court decided issue no. 1 against the plaintiff and held that the plaintiff failed to prove that he was getting Rs. 88/-as salary plus Rs. 25/- as dearness allowance. Issue no. 2 was also decided against the plaintiff and it was held that there was nothing wrong in the order of suspension. Issues No. 3 and 4 were decided in favour of the plaintiff and the trial court held that the order of dismissal was illegal having been passed without giving reasonable opportunity to the plaintiff against the proposed punishment as required by Art. 311 of the Constitution of India. Issue no. 5 was decided against the plaintiff on the findings of issue No. 1. In the result, the trial court gave a declaration that the dismissal of the plaintiff from the defendant's service was illegal, void and inoperative. However, instead of declaring that he continued to remain in service and was entitled to his pay, the trial court recorded a conclusion that the setting aside of the order dismissing the plaintiff from service, amounted to the restoration of the order of suspension and it would be for the administrative authorities to decide the plaintiff's claim for salaries or subsisting allowance on an application, if any, made by the plaintiff. The plaintiff went in appeal to the District Judge, Kotah, who has affirmed the decree of the trial court. The plaintiff has filed this second appeal.

I have heard Mr. C. L. Agarwal for the plaintiff-appellant and Mr. R. A. Gupta, Dy. Government Advocate.

It has been very vehemently contended by Mr. Agarwal that the present case stands concluded by a judgment of the Supreme Court in Omprakash Gupta vs. State of Uttar Pradesh (1), and that the District Judge has seriously erred in holding that the Supreme Court judgment is not applicable to the facts of the present case. A perusal of the judgment of the District Judge, Kotah shows that he has taken a view that the Supreme Court judgment is applicable to cases where a civil court sets aside the order of dismissal from service on merits. He probably meant that in order to attract the applicability of the Supreme Court judgment, the civil court should examine the grounds on which the dismissal order is based and record its own findings on those grounds. In other words, the civil court should decide whether the charges against the person dismissed from service are proved or not and if proved, they justify an order of dismissal.

I have very carefully considered the judgment of the Supreme Court and I do not find any justification for the view taken by the District Judge. The report of the Supreme Court judgment as given in Omprakash Gupta vs. State of Utter Pradesh (l) does not clearly state the circumstances in which the civil court set aside the order of dismissal from service. The judgment was in an appeal from the judgment of the Allahabad High Court reported in Omprakash vs. United Province (2 ). Consequently I referred to that case for a correct idea of the facts of the case. From the facts given in that judgment, it appears that the order of dismissal was declared null and void on the ground that the enquiry conducted by the Commissioner was improper and in violation of the provisions of Rule 55 (C. S.) Qualification Rules, 1938 and no opportunity had been given to him to show cause against the proposed punishment. These being the facts, I have no doubt that the Supreme Court judgment was not in respect of cases where the dismissal order was set aside on merits as used by the District Judge. It was also a case of a dismissal with non-compliance with the provisions of the rules as also non-compliance with a provision requiring the authorities to give show cause notice against the proposed punishment. The District Judge, consequently, is clearly in error in distinguishing this case on unwarranted assumptions.

Secondly, the District Judge has quoted some passages from Sabhagmal vs. The State (3) and Meghraj vs. The State of Rajasthan (4) and emphasized the directions made in these observations to the administrative authorities to comply with the provisions of Art. 311 of the Constitution of India and then proceed to pass such punishment as they may deem proper. The learned judge thought that the High Court purported to have restored the status quo ante as obtaining on the date of dismissal; thereby the restoration of the state of suspension These directions, I must observe, were incidental and casual and were made in order to guide the administrative authorities in future proceedings. Even in the absence of these directions, the tight of the State authorities to take actions on the lines indicated, does not admit of any doubt. A plain reading of these directions does not provide a basis for an assumption that the High Court restored the state of suspension. I have no doubt that the learned judge has read some thing in these observations which is plainly not there. Assuming that there is some room for such an inference, still these observations are absolutely of no assistance in the present case. These observations were made by the High Court in deciding writ applications. In dealing with writ applications, the High Court exercises a sort of supervisory jurisdiction over the administrative proceedings. The High Court's jurisdiction is recognised even where the jurisdiction of the civil courts is barred. Therefore, whatever may be the view with regard to the competence of the High Court to issue appropriate directions under Art. 226 of the Constitution of India, it is not possible to hold that the civil courts also can exercise such powers. The position of a civil court is fundamentally different. The civil court does not sit in appeal over the judgments of the administrative authorities. It is mainly and primarily concerned with the determination of the legal rights and I cannot conceive that a civil court can issue directions regulating proceedings of the administrative authorities apart from recording findings on the rights of the parties. I do not, therefore, find any justification for an inference drawn by the District Judge on the observations quoted by him.

(3.)IN fact, it is improper to attempt a distinction drawn by the District Judge. It must be remembered in this connection that the civil courts do not sit in appeal over the findings of the administrative authorities and ordinarily they do not possess jurisdiction to review the findings of the administrative authorities and to record their own findings and one cannot ordinarily expect a civil court setting aside the dismissal from service on a review of findings on the charges, i. e. , on merits as termed by the District Judge. The dismissal is generally set aside on grounds on non-compliance with the provisions of Art. 311 of the Constitution of INdia, or Rules relating to Service Conditions, or non-observance of the principles of natural justice. It will be hardly fair to take all these cases from the application of the judgment of the Supreme Court and to limit that judgment to only rare and exceptional cases, where the dismissal from service is set aside on a review of the findings on the charges. I also feel a good deal of hesitation in drawing a distinction between decrees setting aside dismissal for noncompliance with the provisions of the Constitution or Rules relating to Service Conditions and dismissal on review of findings and to term the latter a decree on merits and the former otherwise. A decree is in adjudication on the rights of the parties and should always be treated as on merits. It appears to me that the District Judge has been led into this confusion on his having treated the suit as a continuation of the departmental proceedings which in fact it is not. The District Judge in discussing an illustration which he gave, made the following observations to support his conclusion. He says that if the salary was to be given to him by the court from the date of suspension till the decision of the case, it will amount to exonerating him from the charges. He should be exonerated even though the enquiry against him had not resulted in his exoneration or censure. A decree would mean that the charges against him are effaced and that he is acquitted of the charges by the civil court even though that may be found proved or mostly admitted by him in the departmental inquiry. "
I regret, I cannot agree with these observations. There is nothing to prevent a civil court from passing a decree setting aside a dismissal order on the ground of noncompliance with the provisions of the Constitution of India or Rules relating to Service conditions and I also cannot agree that such a decree must in all cases be treated as an exoneration of the person from the charges levelled against him. The passing of the decree will not preclude the Government from directing a further enquiry into the charges and passing fresh orders on the merits of the case.

On all these considerations, I am quite clear that the view taken by the District Judge is clearly erroneous and cannot be maintained. The case is fully covered by the judgment of the Supreme Court and the plaintiff was entitled to his salary on the, findings or the civil court that his dismissal from service was illegal and inoperative.

The learned Deputy Government Advocate has not been able to successfully meet the above position. However, he urged some additional grounds to maintain the decree of the courts below. He put in an application on 3rd March, 1960 seeking per-mission to bring on record copies of a few documents, including the following two order:- (1) Order of the Director of Medical and Health Services, Jaipur dated 22nd April, 1957 directing that the 'plaintiff should be considered to remain as suspended from the date of his dismissal as per this office order No. 5078/ml/gen/md dated 19. 8. 52 came into effect. (2) Order of the Director of Medical and Health Services dated 18th January, 1958 dismissing him from service from the date of his suspension.


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