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962
STATE OF ORISSA AND ORS.
_v._
SHIVA PARASHAD DAS AND ORS.
_F'ebruary_ _22, 1985_
[D.A. DESAI, AP. SEN AND V. BALAKRISHNA ERADI, JJ.]
_Constitution_ _of_ _India,_ _1950, Article_ _311_ _([)-Scope_ _of-Suspension_
_order passed against a government servant_ _is_ _not violative_ _of Art. 311(1)._
_Civil_ _Senices-_
_Orissa Civil Services_ _(CCA)_ _Rules, 1962, Rule 12-GoJt. servant-Suspen·_
_slon_ _of-Whether can be suspended by an_ _authority_ _subordinate_ _to_ _the_ _appointing_
_authority._
The respondent in C.A. No. 201 of 1977, was appointed as a Forester
by the Conservator of Forests. He was placed under suspension pending
enquiry into charges of negligence of duties on 26.2.1969 by the District
Forest Officer under whom he was working. He challenged berore the High
Court under Art. 226 the validity of the order of suspension on the ground
(i) that the order was made in contravention of Art. 311 of the Constitution; and (ii) that it was also violative of Rule 12 of the Orissa Civil
Services (Classification, Control and Appeal) Rules, 1962. The High Court
while rejecting the second contention held that the order was violative of
clause (1) of Art, 311 inasmuch as the respondent could not have been
validly suspended from service by the District Forest Officer, who is an
authority subordinate to the authority which originally appointed him
namely the Conservator of Forests. The question of Jaw raised in C.A.
No. 200 (N)/71 is also identical •
Allowing the appeals,
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HELD : (1) An order or suspension passed against a Government
servant pending disciplinary enquiry is neither one ·of dismissal nor of
removal from service within Art. 311 of the Constitution. Clause (I) of Art.
311 will get attracted only when a person who is a member of Civil Service
of the Union or an All India Service or a Civil Service of a State or one
who bolds a civil post under the Union or a State is 'dismissed' or 'removed
from service. The provisions of the said clause have no application whatever
to a situation where a Goveromeat servant has been merely placed under
_ _...., ...
ORISSA _v._ SHIVA PRASAD _(V._ _Balakrishna_ _Eradi,_ **J.)** 963
**suspension** **pending** **departmental** **enquiry** **since** **such** **action** **does not constitute**
either dismissal or removal from service. [964E·G]
**(2)** **The High Court was right** **in** **rejecting the second contention** **or**
the respondent. Rule 12 of the Rules lays down that any authority
**empowered** **by** **the** **Governor** **or** **the** **appointing** **authority** **in** **that** **behalf** **may**
**place** **a government** **servant** **under** **suspeosion1** **where** **a** **disciplinary** **proceed-**
**ing against him is either contemplated** **or** **is pending.** **In** **the instant case,** **it**
**is not** **in** **dispute that under a Notification issued** **by** **the State Government**
**in exercise** **of** **the powers conferred by Rule** **11** **of the Rules, the District**
**Forest Officer was constituted** **"the** **appointing authority'' in respect** **of**
Foresters with effect from 7.5.1962. It is therefore clear that on the date
on which the impugned order of suspension was passed-26.2.1969, the
**District Forest Officer under whom the respondent was working** **in** **the**
**Ohumsur North Division was fully competent to pass the impugned order**
of suspension. [964H; 965A-C]
_Mohammad_ _Ghouse_ v. _State af Andhra_ _Pradesh_ [1957] S.C.R, 414 followed.
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CIVIL APPELL.ATE JURISDICTION : Civil Appeal No. 200 (N)
of 1971. **D**
From the Judgment and Order dated 1. _5._ 1970 of the Orissa
High Court iu 0. J.C. No. !01/70.
AND
Civil Appeal No. 201 of 1971
From the Judgment and Order dated 28.4.70 of the Orissa High
Court in O.J.C. No. 10/70.
_G._ _S._ _Chatterjee_ for the appellants in both the appeals.
_Ex-Parte_ for the respondents in both the appeals.
The Judgment of the Court was delivered by
BALAKRISHNA ERA.DI J. In these two appeals filed by Special
leave against two judgments of the Orissa High Court, the question
raised is identical namely, whethe1 an order of suspension from
service passed against a Government servant falls within the scope
and purview of Art. 311 of the Constitution. The judgment appe
aled against in Civil Appeal No. 201 of 1971 is prior in point of
time and in the judgment under challenge in C. A. No. 200 of 1971
the High Court has merely followed the former judgment. We shall,
therefore, refer only to the facts relating to C. A. No. 201 of 1971.
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964 SUPREME COURT REPORTS (1985) 2 S.C.R.
The respondent-Shri Ram Parshad-was appointed as a
Forester by the Conservator of Forests, Berhampur, District
Ganjam, on 17.7.1952. Subsequently, while working as a Forester under the District Forest Officer, Ghumsur North Division, the
respondent was pieced under suspension by an order dated 26 2.1969
passed by the said District Officer, pending enquiry into
charges of negligence of duties. The respondent thereupon filed a
Writ Petition in the High Court of Orissa under Art. 226 of the
Constit11tion challenging the order of suspension passed against him
on the ground that it was made in contravention of Art. 31I of the
Constitution as well as rule 12 of the Orissa Civil Services (Classification Control and Appeal) Rules, 1962 (hereinafter called the
'Rules'). The High Court by its impugned judgment allowed the
Writ Petition and quashed the order of suspension holding the same
to be in contravention of Art. 311 (!)of the Constitution. The
High Court took the view that inasmuch as the respondent had
been appointed as Forester by the Conservator of Forests, he could
not have been validly suspended from service by the District Forest
Officer, who is an authority subordinate to the Conservator of
Forests. The correctness of this view taken by the High Court
is called in question by the appellant-the State of Orissa in these
two appeals.
An order of suspension passed against a Government servant
pending disciplinary enquiry is neithe:· one of dismissal nor of
removal from service within Art. 311 of the Constitution. This
position was clearly laid down by a Con~titution Bench of this
Court in _Mohammad Ghouse_ v. _State of Andhra(_ _[1]_ _)._ It is unfortunate
that this decision was not brought to the notice of the learned
Judges of the High Court. Clause (I) of Art. 311 will get attracted
only when a person who is a member of Civil Service of the Union
or an All India Service or a Civil Service of a State or one who
holds a civil post under the Union or a State is 'dismissed or
'removed' from service. The provisions of the said clause have no
application whatever to a situation where a Government servant has
been merely placed under suspension pending departmental enquiry
since such action does not constitute either dismissal or removal
from service. The High Court was, therefore, manifestly in error in
quashing the order of suspension passed against the respondent on
the ground that it was violative of clause (1) of Art. 31 l of the
Constitution.
Rule 12 of the Rules lays down that the appointing authority
l;l (1) [19S7] S.C.R. 414.
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ORISSA _v._ SHIVA PRASAD (V. _Balakrlshna_ _Eradt,_ J.) _96S_
or any authority to which it is subordinate or any authority empo.
wcred by the Governor or the appointing authority iu that behalf
may pla~c a Government servant under suspension, where a disci·
plinary proceeding against him is either contemplated or is pending.
It is not in dispute that under a Notification issued by the State
Government in exercise of the powers conferred by Rule· 11 _of_ the
Rules, the District Forest Officer was constituted "the appointing
authority" in respect of Foresters with effect from 7.5.1962. It is
therefore clear that ou the date on which the impugned order of
suspension was passed-26.2.1969, the District Forest Officer under
whom the respondent was working in the Ghumsur North Division
was fully competent to pass the impugned order of suspension.
Hence the High Court was perfectly right in rejecting the further
contention advanced before it by the respondent herein that the
impugned action had been taken in violation of the provisions of
Rule 12.
We accordingly allow this appea!-C. A. No. 201 of 1971, set
aside the judgment of the High Court and dismiss the Writ Petition
in 0. J.C. No. 10 of 1970. The parties will bear their respective
costs for this Court.
Jn the light of the legal position enunciated above, it follows
that C. A. No. 200 of 1971 has also to be allowed. The judgment
of the High Court is accordingly set aside and the Writ Petition
filed by the respondent therein-0. J. C. No. IOI of 1970 will also
stand dismissed. The parties will bear their respective costs in
this appeal also.
M.L.A. _Appeal_ _allowed._
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