MODI, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution of India.
(2.) DURING the relevant period, the petitioner was posted as Head Constable of Police at Nagaur in the office of the Prosecuting Inspector, Nagaur. On 9-2-60 he was charge sheeted by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur. The charge ran as follows - "that you Shri Navratanmal, H. C. No 59 of District Nagaur (Under suspension) entered in conspiracy with other constables and Head Constables, not to take meals and to go on hunger strike. You are therefore charged for indisciplinary conduct. " After holding an enquiry, the Deputy Inspector General of Police, vide order dated 24-5-60 found that the above charge stood proved against the petitioner. The petitioner was therefore ordered to be compulsory retired on proportionate pension from service with effect from the date of service of the order. The petitioner went in appeal against the said order but the appeal was dismissed by the Inspector General of Police. On second appeal, the Government on the advice of the Public Service Commission allowed appeal vide order Ex. 1 dated 13-7-62 which runs as under - "the appeal filed by Shri Navratan Mal, Exhead Constable against the order of his compulsory retirement from service on proportionate pension passed by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur, and upheld by the Inspector General of Police, Rajasthan, has been carefully examined by the Government and it is observed that the charges framed against the appellant could not be fully proved. In view of the above observation, the Governor in consultation with the Rajasthan Public Service Commission has been pleased to accept the appeal and to quash the order of the Inspector General of Police and Deputy Inspector General of Police dated the 25th February, 1961 and 25th April, 1960 respectively and to order that the appellant be reinstated from the date of his compulsory retirement. The period between the date of the compulsory retirement and to the date on which he reports for duty will however be treated as extraordinary leave. By Order, Sd. Shivshanker, Secretary to the Government. " The direction in the aforesaid order that the period from the date of the compulsory retirement to the date on which he reports for duty will, however, be treated as extraordinary leave resulted in a substantial loss to the petitioner inasmuch as in case of extraordinary leave, he was not entitled to any pay and allowances. He therefore preferred a review of the order under R. 34 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The Governor rejected the review petition on 4-11-70 vide Ex. 2. The petitioner then filed this petition in this Court on 1-2-1971 challenging the legality of the order of the State Govt. dated 13-7-62 with the prayer that the period between the date of compulsory retirement, that is, 25-4-60 and the date on which the petitioner joined duty, that is, 13-7-62 be treated as a period spent on duty and the Government be directed to give all the benefits including full pay and allowances for the aforesaid period. The main ground pleaded by the petitioner in the writ petition is that the order treating the intervening period as extraordirary leave is wholly illegal, unjust and in utter disregard of sub-cls. (2) and (4) of R. 54 of the Rajasthan Service Rules, 1951. According to the petitioner, the Government having fully exonerated the petitioner from the charge levelled against him, it was bound to treat the intervening period as the period spent on duty and he was entitled to full pay and allowances for the said period. The petitioner categorised the order a penalty or punishment which, according to him, could not be made under the Service Rules or under the Constitution of India. The State of Rajasthan contested the writ petition. It has filed a detailed written statement. It denied that the petitioner was wholly exonerated of the charge levelled against him. According to the State of Rajasthan, the petitioner's case did not fall under sub-cls. (2) and (4) of R. 54 but it was governed by sub-cls. (5) of R. 54, and, therefore, the order granting extraordinary leave was in conformity with the provisions of R. 54. Several other pleas were raised before me but they need not detain me here being irrelevant. On the submissions of the learned counsel for both the parties, the points that arise for determination in this case are whether the impugned order comes under sub-cls. (2) and (4) of R. 54 or sub-cls. (3) and (5) of R. 54 of the Rajasthan Service Rules and, secondly, whether there is any violation of the principles of natural justice in passing the impugned order. Rule 54 of the Rajasthan Service Rules. 1951, under which apparently the Government has passed the impugned order may be quoted - "rule 54 - (1) When a Government Servantas who has been dismissed, removed, compulsory retired as a penalty or suspended is reinstated the authority competent to order reinstatement shall consider and make a Specific order - (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where such competent authority holds that the Government servant has been fully exonerated or, in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsory retired a penalty or suspended, as the case may be (3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowance as such competent authority may prescribe (4) In a case falling under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purposes (5) In a case falling under clause (3) the Period of - absence from duty shall not be treated as a period on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave any kind due and admissible to the Government servant. Sub-cl. (1) provides that the authority competent to order reinstatement shall consider and make a specific order regarding (a) pay and allowances to be paid to the Government servant for the period at his absence from duty and (b) whether or not the said period shall be treated as a period spent on duty. A close scrutiny of this sub-clause will show that an order has to be passed in each of the four cases where reinstatement is ordered if there is prior order or the Government servant being dismissed, removed, suspended or compulsory retired. This necessarily postulates a period during which the Government servant is absent from duty either because he is dismissed or removed or suspended or compulsory retired. It is not disputed that the period during which a person is absent from duty does not necessarily tantamount to a period spent on duty. There is power in the authority to treat the whole or part of such period of absence from duty a period spent on duty or not spent on duty. Then follows sub-cl. (2 ). Under this sub-clause the authority which is competent to order reinstatement is enjoined by its to come to a conclusion as to (1) whether the Government servant has been fully exonerated or not and (2) whether the suspension was wholly unjustified If the Government servant can be considered to be fully exonerated or the suspension can be considered wholly unjustified, there is a right in the Government servant concerned to be paid lull pay and allowances to which he would have been entitled if he had not been dismissed or removed or suspended or compulsory retired as the case may be. The competent authority, in my opinion, is thus required to apply his mind to the facts of each case and all the material on record and to come to a definite conclusion as to whether or not the Government servant is fully exonerated or whether the period of his suspension was not wholly justified Sub-cl. (3) refers to residuary cases which are not governed by sub-cl, (2 ). It says that in other cases, the Government servant shall be given such proportion of such pay and dearness allowance as such competent authority may prescribe. Here again certain amount of discretion is vested in the competent authority to decide what proportion of pay and allowances shall be given to the Government servants whose cases do not fall within the purview of sub-cl. (2) of R. 54. Again, sub. cl. (5) provides that in a case falling under sub cl. (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose. Sub-cl. (4) provides that in a case falling under sub-cl (2), the period of absence from duty shall be treated as a period spent on duty for all purposes. It is thus clear that different consequences in the matter of pay and allowances would follow if the period of absence of a Government servant is treated as a period spent on duty or as a period not spent on duty. If the period of absence is treated as a period not spent on duty, then the Government servant concerned necessarily suffers by not getting the pay and allowances which are admissible to him if the period is treated as a period spent on duty. However, it is clear from R. 54 that it does not expressly provide whether the Government were bound to give an opportunity to the Government servant concerned to show cause why the period of absence from duty should not be treated as a period not spent on duty. The question therefore arises whether such an order passed without giving an opportunity to the Government servant is illegal. Their lordships of the Supreme Court in M. Gopalkrishna Naidu vs. The State of Madhya Pradesh (1) had the occasion to interpret Fundamental R. 54 which is substantially the same as R. 54 of the Rajasthan Service Rules. In that case, an overseer of the Public Works Department of the Central Provinces and Berar Government was suspended from service and prosecuted under secs. 161 IPI. The trial resulted in conviction but it was set aside in appeal for want of proper sanction for prosecution. He was again prosecuted on the same charge but it was quashed by the Special Judge trying him on the ground that investigation had not been carried out by proper authorities. The case then went before the High Court of Nagpur in revision. It held that the Special Judge was in error in holding that the investigation was not carried out by proper authorities but recommended that the prosecution should not be proceeded with as nearly 10 years had elapsed since it was launched. Accordingly, the prosecution was dropped but a departmental enquiry was held on the same charges. The enquiry officer found the overseer not guilty. But the Government disagreed with that finding and served a notice of show cause why he should not be dismissed. The Government then held that the charges against the overseer were not proved beyond reasonable doubt and it also held that the suspension and the departmental inquiry were not wholly unjustified. The order then directed that the Government servant should be reinstated in service with effect from the date of the order and retired from that date, he having already attained superannuation age and that the entire period of absence from duty should be treated as period spent on duty under Fundamental R. 54 (5) for purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him by way of subsistence allowance during the period of his suspension. His representation against the said order having been rejected, he filed a petition under Art. 226 of the Constitution in the High Court of Madhya Pradesh for quashing the said order and for an order directing the Government to treat the period of his absence from duty as a period spent on duty under cl. 2 of the said Fundamental Rule and to revise the pension payable to him under that clause. The High Court dismissed the petition but granted certificate to file an appeal before the Supreme Court. The matter came up before the Supreme Court which observed as follows - "it is true as Mr. Sen pointed out that F. R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so the question is whether the rule casts such a duty on the authority by implication. The Order as to whether a given case falls under cl. 12 or cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings, whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified Besides, an order passed under this rule would obviously affect the government servant adversely if it is on made under Cls. 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice. (Para 7) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx In our view, F. R. 54 contemplates a duty to act in accordance with the basic concept of justice and fair play. The authority therefore had to afford a reasonable opportunity to the appellant to show clause why Cls. 3 and 5 should not be applied and that having not been done the order must be held to be invalid. " (Para 10)
(3.) IN the present case, the order dated 13-7-62 admittedly resulted in pecuniary loss to the petitioner. The consideration of the authority whether a particular case comes under sub-cls. (2) and (4) or sub-cls. (3) and (5) must be held to be an objective rather than a subjective function as held by the Supreme Court in the above case. Such a determination implies a duty to act judicially and in that view, an opportunity to show cause against the proposed action must be afforded to the affected party. But in the instant case, it is admitted that no such opportunity was afforded to the petitioner. IN the circumstances, it must be held that the impugned order is liable to be struck down as invalid on the ground that it violates the principles of natural justice as has been done in Gopalkrishna Naidu's case (supra ). The writ petition is therefore allowed with costs to the extent that the impugned order to the effect that period between the date of compulsory retirement and the date on which the petitioner joined the duty will be treated as extraordinary leave, is quashed. The competent authority is, however, directed to consider the question de novo after giving to the petitioner a reasonable opportunity to show cause for the action proposed against him. .;