T.S.Misra, J. - (1.) The petitioner while serving as Assistant Agriculture Inspector (Supply) S. A. S. Group III at Ghazipur was placed under suspension vide order dated 27th January, 1971 passed by the District Agriculture Officer, Ghazipur. A copy of that suspension order is Annexure 2 to the petition. Later on he w-as served with a charge-sheet and proceedings were taken by the Inquiry Officer. The Inquiry Officer submitted his report, v/hereupon the petitioner was called upon by notice dated 5th October, 1972 to show cause as to why the punishments mentioned therein be not imposed against him. The petitioner submitted his reply. The matter further continued and the petitioner was again served with a letter dated 14th January, 1976, whereby, he was called upon to show cause as to why the punishments be not imposed against him. The petitioner submitted his detailed explanation to the same. The final order dated 24th July, 1976 was passed by the Director of Agriculture, opposite party No. 2, imposing the punishment of removal from service on the petitioner and also the following punishments:- (i) that he be not paid anything beyond the subsistence allowance paid to him during the period of his suspension and the said period be not treated as period spent on duty for any purpose; (ii) recovery of Rs. 46,020.65 from the security money and other amounts payable to the petitioner and from his moveable and immovable property. Aggrieved, the petitioner filed a reference claim before the U. P. Public Services Tribunal which, after considering the affidavits exchanged between the parties, quashed the order of dismissal and recovery by an order dated 2nd April, 1980, a copy is Annexure 5 to the petition by order passed by the Public Services Tribunal was in the following terms:- "In view of the discussion above, the claim petition is partly allowed inasmuch as that the dismissal order and recovery order by the order Annexure I is set aside and quashed. The claimant will be relegated back to the position obtained on the date prior to the dismissal order. It need not be said that the Director of Agriculture will be fully empowered to order a fresh inquiry into the matter. The claimant will be deemed to have continued in service in the same position which he was placed on the date prior to dismissal order. The claimant will also get Rs. 100 as costs of this claim petition because it has partly been allowed-The rest of the claim petition stood dismissed". The petitioner being of the opinion that the Public Services Tribunal has revived the position of suspension even after holding the dismissal to be invalid which, according to the petitioner, is erroneous. The petition has been opposed and counter-affidavit has been filed. Rejoinder affidavit has also been filed. I have heard learned counsel for the parties and 1 have gone through the record.
(2.) The sole question which arises for consideration is whether the suspension order would revive when the order of removal from service is quashed by the Public Services Tribunal. The learned counsel for the petitioner submitted that the suspension order had merged in the order of removal from service and when the order of removal from service was set aside, the suspension order would not automatically revive. In support of his contention the learned counsel has placed reliance on Om Prakash Gupta v. State of U. P., AIR 1955 SC 600 , Sharat Chand Misra v. State of U. P.,1972 SLR 185 , H. L. Mehra v. Union of India, 1974 (2) SLR 187 : 1974 SLWR 456 . In the case of Om Prakash Gupta v. State of U. P. it was held that 'where an order of suspension is made against a Government servant pending an enquiry and as the result of inquiry order of dismissal by way of penalty has been passed, the order of suspension lapses with that order and the subsequent declaration by a Civil Court that the order of dismissal was illegal cannot revive the order of suspension which did not exist'. A Division Bench of this Court in Sharat Chand Misra v. State of Uttar Pradesh (2) relying on the decision of the Supreme Court in Om Prakash Gupta v. State Uttar Pradesh held that the order of suspension which ceases to be effective when the order of termination from service was passed would not revive if the order determining employment is quashed by the court. The question was examined in detail by the Supreme Court in H.L. Mehra v. Union of India (3) . In that case the appellant was originally suspended under the order dated April 11, 1963 because a case against him in respect of a criminal offence was under investigation. This was followed by the institution of a criminal case against him and in that case he was convicted by the Special Judge. The conviction was confirmed by the High Court. Thereafter he was dismissed from service by an order of the President dated October 26, 1967. The argument of the appellant in that case was that on the passing of the order of dismissal, his suspension came to an end and even though the order of dismissal was subsequently set aside by the President by the first part of the impugned order, that did not have the effect of reviving the suspension, hence he was not under suspension on the date when the impugned order was made. The respondents, on the other hand, contended that by reason of sub-rule 5 (b) of Rule 10 the order of suspension passed on April 11, 1963 continued to remain in force despite the making of the order of dismissal and in any event, even if the suspension came to an end as a result of the passing of the order of dismissal, it was revived with retrospective effect when the order of dismissal was set aside by the President by the first part of the impugned order. Examining the question on principle the Supreme Court observed "When an order of suspension is made against a Government servant pending an enquiry into his conduct, the relationship of master and servant does not come to an end. What the Government, as master does in such a case is merely to suspend the Government servant from performing the duties of his office. The Government issues a direction forbidding the Government servant from doing the work which he was required to do under the terms of the contract of service or the statute or rules governing his conditions of service, at the same time keeping in force the relationship of master and servant. In other words, to quote Hegde, J. from V. P. Gindroniya, v. State of Madhya Prades, (1970) 1 SCC 362 'the employer is regarded as issuing an order to the employees which because the contract is subsisting, the employee must obey'. This being the true nature of an order of suspension, it follows that the Government servant would be entitled to his remuneration for the period of suspension unless there is some provision in the statute or rules governing his conditions of service which provides for withholding of such remuneration. Now, when an order of dismissal is passed, the Vinculum Juris between the Government and the servant is dissolved : the relationship of master and servant between them is extinguished. Then the order of suspension must a fortiorari come to an end. But what happens when the order of dismissal is subsequently set aside ? Does that revive the order of suspension ? We do not think so. Once the suspension has come to an end by an order of dismissal, which was effective when made, it cannot be revived by mere subsequent setting aside of the order of dismissal in the absence of a statutory provision or rule to that effect. That is precisely the reason why sub-rules (3) and (4) had to be introduced in Rule 10 providing for retrospective revival and continuance of the suspension in cases falling within these sub-rules. This position which emerges clearly on principle is supported also by authority. There is a decision of a Bench of six Judges of this Court which endorses the same view. That is the decision in Om Prakash Gupta v. The State of Uttar Pradesh . The Supreme Court, therefore, held in H. L. Mehra's case that when the order of dismissal was passed on October 25, 1967, the order of suspension dated April 11, 1963, ceased to exist and it did not revive thereafter by the subsequent setting aside of the order of dismissal by the first part of the impugned order. The appellant was accordingly not under suspension at the point of time when the third part of the impugned order was made and the appellant was accordingly not under suspension. The Supreme Court then proceeded to consider the applicability of sub-rule (4) of Rule 10 CCS (CCA) Rules, 1965. It was urged before the Supreme Court that under that sub-rule the order of dismissal having been set aside by the President is consequence of the decision of this Court acquitting the appellant the appellant must be deemed to have been placed under suspension by the President from the date of the original order of dismissal and he Would continue to remain under suspension until further orders and it was in recognition of this position that the third part of the impugned order was made. The Supreme Court repelling this contention observed:- "There are two conditions which must be satisfied in order to attract the operation of sub-rule (4). First, the order of dismissal must be set aside in consequence of a decision of a court of law' and secondly, the disciplinary authority must decide to hold a fresh enquiry on the allegations on Which the order of dismissal was originally passed. The first condition was admittedly satisfied in the present case because the order of dismissal was set aside by the President in consequence of the decision of this Court acquitting the appellant. The question is whether the second condition was satisfied. Was the inquiry continued under the impugned order an inquiry against the appellant on the allegations on which the original order of dismissal was based. To answer this question, we must once again turn to the facts which we have already narrated. The penalty of dismissal was imposed on the appellant, on the ground that his conduct, which had let to the conviction was such as to render his further retention in the public service undesirable. Now the conviction of the appellant was in respect of the second charge in so far as it related to the first, the second and the fourth consignments, and therefore, the conduct of the appellant which led to his conviction was that of set out in the second charge in reference to the first, the second and the fourth consignments. So far as the second charge in relation to the third consignment of nine cases alleged to have dispatched on or about 31st July, 1962 is concerned, the appellant was acquitted and his alleged conduct in dispatching these cases did not lead to his conviction. The allegations on which the penalty of dismissal was originally imposed on the appellant were, therefore, those set out in the second charge in relation to the first, the second and the fourth consignments. The enquiry instituted under the memorandum dated 8th March, 1965, which was revived and continued under the second part of the impugned order, was obviously not an enquiry against the appellant on any of those allegations. The allegations on which this enquiry was instituted were those stated in charges I to IV enclosed with the memorandum dated 8th March, 1965 and they did not include any allegations relating to the despatch of the first, the second and the fourth consignments which formed the basis of the making of the original order of dismissal. The allegations contained in charges I, II and III were in fact wholly unrelated to any of the charges in the criminal case. The allegations in charge II relating to despatch of nine cases on or about 31st July, 1962 no doubt, formed the subject-matter of the second charge in relation to the third consignment, but in respect of this charge, as already pointed out, the appellant was acquitted and the original order of dismissal was obviously not based on these allegations. The enquiry revived and continued under the second part of the impugned order was, therefore, clearly not an enquiry on the allegations on which the penalty of dismissal was originally imposed on the appellant. Sub-rule (4) of Rule 10 had accordingly no application and it could not be invoked to justify the third part of the impugned order". In para 10 of the report the Supreme Court observed "This of course does not mean that the President cannot now, in exercise of the power under sub-rule (1) of Rule 10, pass a fresh order of suspension against the appellant pending the enquiry which has been revived and continued against him. It would always be open to the President to take appropriate action by way of suspension against the appellant under sub-rule (1) of Rule 10, if he so thinks fit. But until such action is taken the appellant would be entitled to his salary under the conditions of service applicable to him".
(3.) In the case in hand the Tribunal while setting aside the order of removal from service and recovery of certain amount had observed that the petitioner would be relegated I back to the position obtained on the date prior to the dismissal order and the Director of Agriculture would be fully empowered to order a fresh inquiry into the matter. The Tribunal made it clear that the petitioner would be deemed to have continued in service in the same position in which he was placed on the date prior to dismissal order.;