JUSTINIANO AUGUSTO DE PIEDADA BARRETO

ANTONIO VICENTE DE FONSECA AND ORS.

March 6, 1979

[D. A. DESAI AND 0. CH!NNAPPA REDDY, JJ.]

Limitation-Provisions of the Portugue!Je Civil Code relating to limitation, whether stand repealed by Limtation Act 1963 (Act 36 of 1963) by necessa."Y implication, or whether they are saved by section 29(2) of that Act-Limitation Act, 1963 section 29(2), Portuguese. Civil Code Art. 535.

The Goa, Daman and Diu (Administration) Act, 1962 sub section (I) and (2) of sections Sand 6.

The Goa Daman and Diu (Laws) Regulations promulgc1tcd under Art. 240 of the Constitution, scope of-"Local Law" and "Special Law" difference in-- Whether the Portuguese Civil Code a local law~Whether there is any repugnancy .:111d therefore void under Art. 254(1) of the Co11.Jtitutio11.

On Goa, .Daman and Diu becoming a part of India as a: Union Territory, Parliament enacted the Goa, Daman and Diu (Administration) Act, 1962 to provide for its administration and for matters connected therewith. Section 5 (I) of the Act declared that all laws in force immediately before 20th December, 1961 in Goa, Daman and Diu or any part thereof shall continu~

to be in force therein until amended or repealed by a competent Legislature or other competent authority.

Pursuant to the powers conferred by Article 240 of the Constitution, the President promulgated certain Regulations styled as 'The Goa, Daman and Diu (Laws) Regulations' from time to time. These Regulations extended certain enactments to Goa, Daman and Diu with specified modifications. To the extent that any law in forco in Goa, Dam.an and Diu corresponded to any Act which was so extended to those Territories such law was declared to stand repealed.

Before Goa, Daman and Diu becamei part of India, Portuguese Civil Codo and the Portuguese Civil Procedure Code were in force in those territories.

The Portuguese Civil Code contained various provisions dealing with limitation for suits, applications and appeals. These provisions were never re.pealed either by express legislative enactment or by an order made by the Central Govemmi!nt in exercise of the powers conferred upon it under section 5 (2) of the 1962 Act by any Regulation made by the President. Neither any notification by the Central Government under section 6 of the 1962 Act was issued nor 'vas a regulation made by the President extending the Limitation Act, 1908 to Goa, Daman and Diu with or without modification. Nor did any Regulation repeal a.ny of the provision of the Portuguese Civil Code relating to Limitation. Even

the Goa, Daman and Diu (Extension of the Code of Civil Procedure and Arbitration Act), 1965, neither expressly nor by implication repealed the provi .. sions relating to limitation contained in the Portuguese Code.

The Goa, Daman and Diu (extension of the Code of Civil Procedure and Arbitration Act), 1965 also did not either expressly or by implication repeal the provisions relating to limitation in the Portuguese Civil Code.

In the circumstances, the question that arose for consideration in the appeals by the appellants-defendants was ' 1wbether the provisions of the Portuguese

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JUSTINIANO V. ANTONIO 495

Civil Code relating to Limitation stood repealed by the Limitation Act, 1963, i\ by necessary implication, or whether they were saved by Section 29(2) ibid?"

Dismissing the appeals by special leave the Court,

HELD : 1. The provisions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is "local law" within the meaning of Se<:tion 29(2) of the Limitation Act, 1963. These provisions have to be read into the 1963 Act, as if the schedule to the said Act is amended. muratis mutandfs. [503 B]

2. If section 32 and section 29(2) of the Limitation Act 1963 are read together it is clear that the -only law of Limitation that was repealed was the Limitation Act, 1908 and all other laws dealing with 1itation, special or local were saved and are to be read into the Limitation Act, 1963. Therefore{, no question of repugnancy or voidness of the provisions of the Portuguese Civil Code relating to limitation on that ground arises. They continue to be i~ force, in the Union Territory of Goa, Daman and Diu. [503 A-B, C]

Deep Chand v. The State of U.P., [1959] 2 SCR 843; Municipal Council, Pa/ai v. T. !. Joseph, [1964] 2 SCR 87; Stahe of Jammu and Kashmir v. H. S.

Farooqui. AIR 1972 S.C. 1738; referred to.

3. The word "special" has reference to subject and the \Vorel "local" has reference to a particular area or territory. A special law is a law relating to a particular subject while a local Jaw is a law confined to a particular area or territory. Used in an Act made by Parliament the word local may refer to a. part or the whole of the many States constituting the Union. Though a law deaHng with a particular subject may be a general law in the sense that it is

a law of general applicability, laying down general rules, yet, it may cotitain E special provisions relating to bar of time, in specified cases different from the general law of limitation. Such a law would be a special la\v for the purpose of section 29(2) of the Limitation Act, 1963.

Similarly, a law \Vhich may be a law of general applicability is yet a local law, if its applicability is confined to a particular area instead of 'generally' the whole country. [501 A-D]

Kaushalya Rani v. Gopal Singh, [1964] 4 SCR 982 @ 987 and 988; applied.

Queen v. Land County Council, [1863] 2 Q.B. 454 @ 462 quoted with approval.

CJVIL APPELLATE JURISDICTION: Civil Apal No. 1818 of 1969.

From the Judgment and Order dated 17-3-1969 of the Judicial G Commissioner's Court in Appeal No. 243/66.

AND

CIVIL APPEAL NO. 2038 of 1969

From the Judgment and Decree dated the 12th March 1969 of the Court of Judicial Commissioner Goa, Daman and Diu in Second H Appeal No. 5 of 1968.

12-253SCI/79

A V. M. Tarkunde, Naunit Lal and Dr. Bernardo Das Rais for the Appellant (In C.A. 1818/69).

Eduardo Falero, 0. C. Mathur, D. N. Misra aoJ I. B. D. & Co. for the Respondent (In C.A. 1818/69).

B Naunit Lal and Dr. Bernardo Das Rais for the Appellant (In C.A. 2038/69).

S. V. Tambwekar for the Respondent (In C.A. 2038/69).

The Judgment o! the Court was delivered by

CHINNAPPA REDDY, J.-It is 'now a matter of history that the er:; twhile Portuguese Colonial P05sessions of Goa, Daman and Din he came part o! the Territory o! India from 20th December, 1961. The territories of Goa, Daman and Din were incorporated as a Union Territory by the Constitution (Twelfth Amendment) Act, 1962, with effect from 20th December,

1961. The Goa, Daman and Diu (Administration) Act, 1962, repealing and re-enacting the provisions of the Goa, Daman and Din Administration Ordinance 1962, was enacted by Parliament to provide for the administration of the Union Territory of Goa, Daman and Din and for matters connected the1ewith.

Section 5 (1) of the Act declared that all laws in force immediately before the appointed day (20th December,

1961) in Goa, Daman and Din or any part thereof shall continue to bot in force therein until amended or repealed by a competent Legislature or other competent authority.

Section 5 (2) enabled the Central Governmeht, within two years from the appointed day, to make such adaptations and modifications, whether by way of repeal or amendment, ; is may be necessary or expedient for the purpose of facilitating application of any such law in relation to the administration of Goa, Daman and Din as a Union Territory and for the purpose of bringing tl:e provisions of any such law into accord with the provisions of the Constitution. Section 6 of the Act empowered the Central Gove; nmont, by notification in the official Gazette, to extend with such restrictions or modifications, as it thinks fit, to Goa, Daman and Din, any enactmmf which is in force in a State at the date of the notification.

Befcre Goa, Daman and Din became part of India, certain laws web as (ne Portuguese Civil Code, the Portuguese Civil Procedure Code etc. were in force in those Territories. Apart from dealing with multiple other matters, the Portu!Ilese Civil Code contained, various H pro, isions dealing with limitation !or suits, applications and ppeals.

It is undisputed that the provisions o! the Portuguese Civil Code relating to Limitation were never repealed either by express Legislative

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enactment or by any order made by the Central Governmrnt in exercise of the powers conferred upon it u'ader Section 5 (2) of the Goa, Daman and Diu (Administration) Act, 1962 It is also not in dispute that the Central Government did not ism~ any notification under Section G of the Goa, Daman and Diu (Administration) Act extending the Indian Limitation Act, 1908, to Goa, Daman and Diu with or

w)thout modification.

The Constitution (Twelfth Amendment) Act suitably amended Article 240 of the Constituiion to enable the President to make Regulations for the peace, progress and i:ood Government of the Union Territory of Goa, Daman and Diu until a body was created by Parliamentary enactment to function as a Legislature for the Union Territory.

Pursuant to the powers conferred by Article 240 of the Constitution, the President promulgated certain Regulations styled as 'The Goa, Daman and Diu (Laws) Re&11lations' from time to time. These Regulations extended certain enactments to Goa, Daman and Diu with specified modifications. To the extent that any law in force in Goa, Daman and Diu corresponded to any Act which was so xtended to those Territories, such law was declared to stand repealed. The Indian Limitation Act, 1908, was not one of the Acts extended to Goa, Daman and Diu under any of the Goa, Daman and Diu (Laws) Regulations.

Nor was any Regulation made by the President repealing any of the provisions of th•3 Portuguese Civil Code relating to Limitation.

While so, the Limitation Act 1963, was enacted by Parliament on 5th October, 1963, to take effect from the date to be appointed by the Central Government by notification in the official Gazette. 1st January, 1964, was later specified as the date from which the Limitation Act was to come into force. Section 1 (2) extends the Limitation Act 1963, to the whole of India exopt the State of Jammu and Kashmir. Section 32 of the Act containing hnt one sentence repeals the Indian Limitation Act, 1908.

No other enactment is expressly repealed.

Section 31 makes special provision for suits etc. for which the prescribed period of limitation is shorter than the period prescribed by the Indian Limitation Act, 1908. Section 29 contains 'savings' clauses and Section 29(2) which particularly savc5 ·pecial and local laws' is in these terms :

"29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of rection 3 shall !tpply as if such period were the period prescribed by the Schedule and for the purpose of

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A determining any period of limitation prescribed for any uit, appeal or application by any speeial or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply iu so far as, aud to the extent to which, they are not expressly excluded by such special or local law".

The question which has arisen for consideration in these two appeals is whether the provisions of the Portuguese Civil Code relating to Limitation stand repealed by the Limitation Act, 1963, by necessary implication, or whether th.3y are saved by Section 29(2) of that Act.

Civil Appeal No. 1818 of 1969 arises out of a suit filed by the respondent-plaintiff against the appellant-defendant on 25th November, 1965, claiming damages for malicious prosecution. The prosecution which was alleged to have been maliciously launched against the plaintiff ended in an acquittal by the decision of the Supreme Court, Lisbon, on 6th April, 1960. The plaintiff claimed that the suit was within time uuder Article 535 of the Portuguese Civil Code which provides a period of limitation of 20 years.

On the other hand the defendant claimed that the suit was governed by Article 74 of the Limitation Act, 1963, which provides a period of limitation of one year only. The Trial Court decided the point of limitation, as a preliminary issue, in favour of the plaintiff.

An 'Agravo' appeal to the District Judge and a further appeal to the Judicial Commissioner not having borne fruit the defendant has preferred this appeal aiter obtaining special leave from this Court.

Civil Appeal No. 2038 of 1969 arises out of a suit instituted by the plaintiff-respondent to recover a sum of Rs. 5,000 /- said to be due on a promissory note dated 24th November, 1962, executed by the defundant-appellant.

In this suit th;, plaintiff claimed that the period of !i, nitation was as provided by Article 535 of the Portuguese Civil Code while the defendant claimed that the period of limitation was as provided by Article 31 of the Schedule to the Limitation Act, 1963.

The question of Limitation was decided as a preliminary issue in favour of the plaintiff by the Subordinte Courts and by the Judicial Commissioner of Goa.

The defendant has preferred this appeal a{ter obtainmg special leave from this Court.

The principal submission of Shri V. M.

Tarkunde and Shri Naunit Lal, learnd Counsel for the appellants in the two appeals was

that the provisions of the Portuguese Civil Code relating to Limit.'ltion JI for the filing of suits etc. must be considered to have been pro-tantorepea\ed by the Limitation Act, 1963, ilb view of Article 254(1) of the Constitution of India. It was their submission that too provisions

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JUSTINIANO v. ANTONIO (Chinnappa ReJdy, !.) 4 99

relating to limitation contained in the Portuguese Civil Code, a law made by the Legislature of a State, were repugnant to the provisions of the Limitation Act, a law made by Parliament and, therefore, the former provisions were void to the extent of the repugnancy. It was submitted that the question of a local or special law being saved by

the provisions of Section 29 would arise only if the provisions of the local or special Jaw were not repugnant to the Jaw made by Parliament namely the Limitation Act. It was further argued that the Portuguese Civil Code was a general law and not a local law and, therefore, the provisions contained in it relating to limitation were not saved

undr Section 29 (2) of the Limitation Act. It was also contended that the words "where any special or local law prescribes for any suit, appeal or application" occurring in Section 29(2) indicated that Section 29(2) was confined in its application to odd Legislation dealing with particnlar types of suits and did not extend to a general law of Limitation like the Portuguese Civil Code.

Shri Eduardo Falero and Shri Tambwekar, learned Counsel for the resrondents urged that the Portuguese Civil Code which was applicable lo the Union Territory of Goa, Daman and Diu only and not the whole of rndia was a local law, and, therefore, the provisions contained in it relating to limitation were saved by Section 29(2) of the Limitalion Act, 1963. The relevant provisions of the Portuguese Civil Code having been expressly sawd, no questi.on of any repug

nancy between those provisions and those of the Limitation Act arose.

It was also urged that Parliament which made express provision in Section 30 for suits for which the Limitation Act 1963, pl', scribed shorter periods of limitation than the Indian Limitation Act, 1908, would surely not have allowed the drastic inroads into the law of Limitation of suits prevailing in Goa, Daman and Din without introducing a provision similar to Section 30. It was further urged that the Limitation Act, 1963, was not retrospective so as to curtail periods of limitation in respect of causes of action which had already arisen.

Before considering the rival contentions of the parties, we may, at

this jnncture, mention that the Code of Civil Procedure, 1908 and the G Arbitration Act, 1940, were extended to the Union Territory of Goa, Daman and Diu by Section 3 of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration Act) Act,

1965. Section 4 of the Act repeals so much of the law in force in the Union Territory of Goa, Daman and Diu as corresponds to the Code of Civil Procedure, 1908 or the Arbitration Act, 1940.

This H Act also neither expressly nor by implication repeals the provisions relating to limitation contained in the Portuguese Civil Code .

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Article 254 ( 1) of the Constitution prescribes that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law, made by Parliament which Parliament is competent to enact, or to any provision of an existing law with resp;:ct to one of the matters enumerated in the Concurrent Llst, then subject to the provisions of clause 2, the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the cae may be, the existing law shall prevail and the law madt> by the Legislature of the State shall, to the extent of repugnancy be void.

We are not here concerned with the provisions of clanse 2. For the

purpoe of the present appeals, we will assume that the Portuguese Civil Code which was continued by Parliament to be in force in the Union Territory of Goa, Daman and Diu was a law made by the Legislature of a State, though there may be several objections to so doing. The principles applicable to ascertain whether there is repugnancy or not have been ennnciated by this Court in Deep Chand v.

The State of Uttftr Pradesh('), Municipal Council, Palai

v. T .. I.

Joseph('), State of !ammu and Kashmir v. H. S. Farooqi( 8), :and other cases.

We do not consider it necessary to restate the well known principles. Wrthout doubt the provisions of the Portuguese Civil Code, unless they are saved by Section 29(2) of the limitation Act, are repugnant to the provisions of the Limitation Act, 1963. If, however, the provisions of the Portuguese Civil Code are saved by Section 29 (2) the'n there can be no question of any repugnancy, Sic tion 29 (2) declares that the period of limitation prescribed by any special or local law shall apply as if such period was prescribed by the Schdule to the Limitation Act. In other words it is as if the special or local law is incorporated into the Limitation Act and the Schedule to the Limitation Act is amended, mutatis mutandis, by the special or local law. Therefore, to say that the provisions of a special or local law which by the Il'cessary implication of Section 29(2) are read into the Limitation Act are co'ntrary to the provisions of the Limitation Act, is merely to argue in a vicious circle, to end where one begins. So the question whether the provisions of the Portuguese- Civil Code are void on the gronnd that they are repugnant to the provisions of the Limitation Act depends on the question whether the Portuguese Civil Code is saved by Section 29(2) of the Limitation Act, 1963. That depends on whether the Portuguese Civil Code is a special or local law within the meaning of Section 29(2) of the Limitation Act.

(l) [1959] 2 S.C.R. 843.

(2) (1964! 2 S.C.R. 87.

(3) A.I.R. 1972 S.C. 1738.

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A We do not see how we can escape from the conclusion that . the Portugu"'"e Civil Code is a local law within the meaning of Section 29(2). Obvionsly the word 'special' has reference to subject and the word 'local' has reference to area or territory. A special law is a Jaw relati'ng to a particular subject while a local law is a law confined to a particular area or territory. Used in an Act made by Parliament the word local may refer to a part or the whole of one of the many States B constituting the Union. Though a law dealing with a particular subject may be a general law in the sense that it is a law of gmral applicability, laying down general rules, yet, it may contain special provisio'os relating to bar of time, in specified cases, different from too general law of limitation. Such a Jaw would be a special law for the purpose of Section 29(2). The rule of limitation contained in Section 417(4) of the Code of Criminal Procedure of 1898 was accordingly held to be a 'special Jaw' in Kaushalya Rani v. Gopal Singh(').

Similarly, a Jaw which may be a law of general applicability is yet a local law if, its applicability is confined to a particular area instead of generally the whole country. In The Queen v.

London County Council(') Bowen L.J. observed :

"Now, a general Act, prima fade, is that which applies lo the whole community. In the natural meaning of the term it means an Act of Parliament which is unlimited both in its area and, as reEards the individual, in its effects; a'nd as opposed to that you get statute~ which may well be public becaui; c of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area a limitation which makes them local-or limited in respect of individuals or persons-a limitation which makes them personal.

Here, we may also extract the following useful observations from Kaushalya Rani v. Gopal Singh (supra) to which we have already referred :

"It has been observed in some of the cases decided by the High Courts that the Code is not a special or a local law within the meaning of s. 29 (2) of the Limitation Act, that is to say, so far as the entire Code is concerned, because it is a general Jaw laying down procedure, generally, for the trial of criminal cases. But the specific question with which we are here concerned is whether the provisio'n contained in s. 417 ( '4) of the Code is a special Jaw. The whole Code is

(2) [t 893] 2. Q .. B. 454 462.

indeed a general law regulating the procedure in crintinal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. For example, a Land. Revenue Code may be a general law regulating the relationship between the revennepayer ahd the revenue-receiver or the rent-payer and the rentreceiver. It is a general law in the sense that it lays down the general rule governing such relationship, but it may contain special provision relating to bar of time, in specified cases, different from the general law of limitation.

Such a law will be a 'special law' with reference to the law generally governihg the subject-matter of that kind of relationship.

A 'special law', therefore, means a law enac_ted for special cases, in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays dow'n any bar of time in respect of special cases in special circumstances like those contemplated bys. 417(3) & (4), read together, it will be a special law contained within the general law.

As the Limitation Act bas not defined 'special law', it is neither necessary nor expedient to attempt a definition.

Thus, the Limitatioh Act is a general law laying down the general rules of limitation applicable to all cases dealt with by th~ Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation.

For example, rules framed under Defence of India Act, vide S. M. Thakur v.

The State of Bihar (I.L.R. 30 Pat. 126); Canara Bank Ltd.

v. The Warden Insurance Co. (I.I.R (1952) Bom. 1083) dealihg with the special rule of limitation laid down in the Bombay Land Requisition Act (Bom.

XXXIII of 1948).

Theso are mere instances of special laws within the meaning of s. 29 (2) of the Limitation Act".

If in the above extracted passage dealing with the scope of Section 29 (2) of the Limitation Act one reads the words "local Jaw" for tl1c

words "special Jaw" and the word "area" for the words "Bpecial • cases", the meaning of the expression "local law" becomes clear.

H Now, there is only one ge'neral law of Limitation for the entire country and it is the Limitation Act, 1963. All other laws prescrib ing periods of limitation are either special or local laws.

They are

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:sp<cial luws if they prescribe periods of limitation for specified cases.

They are local laws if their applicability is confined to specified areas.

If Section 32 and Section 29(2) of the Limitation Act 1963 are read

together, it becomes clear that the only law of Limitation that is re- Jl"'aled is the Limitation Act, 1908, and all other laws dealing with limitatio'n, special or local are saved and are to be read into the Limi- .tation Act, 1963.

We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of Limitation .of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is "local law" within the meaning of Section 29(2) of the Limitation Act, 1963.

As stated earlier these provisions have to be read into the Limitatio11 Act, 1963, as if the Schedule to the Limitation Act is amended mutatis mutandis. No question of repugnancy arises.

We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman a'nd Diu.

We do not think that it is nee1.>ssary to consider the other submis- . sions of the learned Counsel for the respondents. In the result both the appeals are dismissed with costs.

:~.R.

Appeals dismissed .

JUSTINIANO AUGUSTO DE PIEDADA BARRETO

ANTONIO VICENTE DE FONSECA AND ORS

March 6, 1979

D. A. DESAI

0. CH!NNAPPA REDDY, JJ.

Je Civil Code

Limtation Act 1963

section 29(2)

Act-Limitation Act, 1963

section 29(2)

Art. 535

Art. 240

Whether the Portuguese Civil Code

Art. 254(1)

Parliament

Section 5

20th December, 1961

Goa

Daman

Article 240

Dam.an

Diu

Daman

Diu

India

Central Govemmi!nt

section 5

Central Government

section 6

the Code of Civil Procedure

Section 29(2)

Limitation Act, 1963

section 32

section 29(2)

Limitation Act 1963

Limitation Act, 1963

[1959] 2 SCR 843

[1964] 2 SCR 87

section 29(2)

Limitation Act, 1963

[1964] 4 SCR 982

A V. M. Tarkunde

Naunit Lal

Bernardo Das Rais

Eduardo Falero

C. Mathur

D. N. Misra

B Naunit Lal

S. V. Tambwekar

CHINNAPPA REDDY

Din

Section 5

Section 5

Central Governmeht

Din

Section 6

Portuguese Civil Code

Ilese Civil Code

Central Governmrnt

Section 5

Article 240

Article 240

Daman and Diu corresponded to any Act

Indian Limitation Act, 1908

Portuguese Civil Code

Limitation Act 1963

5th October, 1963

Limitation Act

Section 1

Limitation Act 1963

State of Jammu and Kashmir

Section 32

Section 31

Indian Limitation Act, 1908

Section 29

Section 29(2)

sections 4 to 24

Limitation Act, 1963

Section 29(2)

25th November, 1965

Supreme Court, Lisbon

Article 535

Article 74

Limitation Act, 1963

24th November, 1962

Article 535

Article 31

Schedule to the Limitation Act, 1963

V. M.

Tarkunde

Limitation Act, 1963

Article 254(1)

Constitution of India

Limitation Act

Section 29

Section 29

Limitation Act

Section 29(2)

Section 29(2)

Eduardo Falero

Tambwekar

Section 29(2)

Limitalion Act, 1963

Limitation Act

Section 30

Limitation Act 1963

Indian Limitation Act, 1908

Section 30

Code of Civil Procedure, 1908

Arbitration Act, 1940

Section 3

Section 4

Arbitration Act, 1940

Article 254

clause 2

Section 29(2)

limitation Act

Limitation Act, 1963

Section 29

Limitation Act

Limitation Act

Limitation Act

Section 29(2)

Limitation Act

Limitation Act

Limitation Act

Section 29(2)

Limitation Act, 1963

Section 29(2)

Limitation Act

[1959] 2 S.C.R. 843

Section 29(2)

Section 29(2)

Section 417(4)

Code of Criminal Procedure of 1898

s. 29

Limitation Act

s. 417

Limitation Act

Defence of India Act

Canara Bank Ltd.

s. 29

Limitation Act

Section 29

Limitation Act

Section 32

Section 29(2)

Limitation Act 1963

Limitation Act, 1908

Section 29(2)

Limitation Act, 1963

Limitation Act


UNION OF INDIA & ORS.

J. AHMED

March 7, 1979

(D. A. DESAI AND 0. OIINNAPPA REDDY, JJ.]

All lndia S.rvices (Death-cum-Retirement) Rules 1958-r. 16-Scope 0/1

Words and Phrase'S: Misconduct-What conStitutes to attract punishment in disciplinary proccedings-Mene acts of om1Ssion and commission or negligence in perforn1ance of duty-If nzisconduct.

The respondent, an officer belon&in: to the Indian Administrative Service, was due to retire on February 1, 1962.

Since a departmental enquiry in respect of some charges levelled aiainst him wa! pending, he was retained in service, in the first in!tance, for a period of three months beyond the date of his retirement or till tho termination of departmenta-1 proceedings whichever

v.as earlier, This date was, however, extended from time to time and evcn 4 tually on August 28, 1963 an order under r. 16(2) of the All India Services (Death-cum-Retirement) Rules, 1958 was pas1oed.

That Rule provides that "a member ef the service under suspension on a chare of misconduct shrill not be required or pef'mitted to retire from service but sha.U be retained in service until the enquiry into th11 charges against him is concluded and a final order is passed," ..

The charges levelled against the respondent were (1) that he completely failed to take any effective preventive measures aainst widespread disturbances which broke out in the district, (2) th•t he •bowed complete lack of leadership and failed to give proper directions to his subordinate officers, (3) that he did not personally visit the scene of disturbances; ( 4) that he did not keep the Government informed of the extent of disturbances; and (5) that he showed complete inaptitude, lack of foresight, capacity to take firm and quick decision and, that therefore, he proved himself completely unlit to bold any responsible position.

On the report of the enquiry officer that all the charges {except one) were substantially proved, he was removed from 1ervice.

Striking down the order of his removal from service, the Jligh Court held that (i) nog1igence and efficiency in the performance of one's duty would not constitute misconduct so as to attract punishment of removal from service and

(ii) under r. 16(2) an officer could be retained in service only for the purpose of holding or completing disciplinary proceedings for misconduct and since in this cftSe there was no enquiry into what could be cad.led misconduct, his retention in service beyond his date of retirement was void.

Dismissing the appeal,

HELD: l(a) No case, stricto srnsu, for a dis.ciplinary proceeding for misconduct had been made out agaimt the respondont. Any ~.eficiency in the discharge of one's duties would not [Constitute misconduct.

The enquiry held

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UNION v. J, AHMBD sos

was to establish that the respondent Wa6 not fit to hold a rcaponsible post; A it did not establish any misconduct on his part to deserve the punishment. [516 HJ

(b) Conduct which is blameworthy on the prt of a government servan' in the context of the Conduct Rules would be misconduct, that is if a government servant conducts himself in a way which is not consistent 'vith due and faithful discharge. of his duties it is misconduct. Similarly, disrOp.ird of an essential condition of the contract of service may constitute mh; conduct. So B too an error or omission resulting in serious or atrocious consequences may amount to misconduct.

But competence for the post, capability to hold and dischllrge the functions attached to it with requisite efficiency are different from some act or omission on the part of its holder so as to be1 called misconduct.

A single act or omission: or error of judgment while holding a post of responsibility unoccompanied by serious or atrocious conduct would not constitute misconduct. [511 G-Hl C

Pierce v. Fosttr, 17 QB 536 at 542; Laws v. London Chronicle (Indicator Newspapers), [1959] 1 WLR 698; S. Govinda Menon v. Union of India, [1967] 2 SCR 566; P. H. Kalyani v. Air France, Calcutta, [1964] 2 SCR 104; referred -

(c) The All India Services (Conduct) Rules, 1954 prescribe a codo of conduct for members of the service, such for example1 as, that e"Very member shall at all times maintain absolute integrity and devotion to duty and th&t an act or omission contrary to or in breach of the prescribed norms of conduct would constitute misconduct for disciplinary proceedings. But the Rules are not exhaustive. In the absence of an exhaustive or self-contained code, thereforo

it would not be correct to sa.y that only that act or omission would constitute E misconduct for the purposes of Discipline and Appeal Rules which is contrary to the provisions of the Conduct Rules. [511 C-E]

In the instant case all that the charges framed against the respondent show is 1'hat he was not a very efficient officer. They did not specify any act or. omission in derogation of or contrary to, Conduct Rules, except the general rule (r. 3) prescribing devotion to duty. La-ck of leadership, inaptitude, lack of foresight, lack of firmness and indecisiveness which are dediciencies in the personal character or ability of a Government servant would not by themselves constitute misconduct for the purpose of disciplinary proceedings.

They may be relevant while considering an officer's promoti9n to higher post or for his retention in a higher post but they cannot be elevated to the level of acts of omission or con1mission contemplated by Discipline find Appeal Rules for imposing punishment. When the respondent was sought to be removed from service as a disciplinary measure by \vay of penalty, a clear case of misconduct should ha.ve been established.

(d) In the context of disciplinary proceedings, misconduct doet not mean misbehaviour involving some form of guilty mind or 1nr11s rea.

Gross or habituad. negligence in the performance Of one's duty may not involve 1nens rea but yet it may constitute misconduct for disciplinary proceedings. [513 DJ

2(a) The respondent was no longer in service on the date on which the order removing him from service was made and to retain him in service

beyond the period of his normal retirement with a view to punishing him was wholly unjustified. [517 C-D]

(b) Since the State Government had no power to retain him in service under r. 16(1)(a) of the Retirement Rules beyond August I, 1962 it could not continue the enquiry thereafter. Although under r. 16 (I )(b) the Central Government had power to retain him in service beyond six months of the date of his retirement, no ord, er had been p2ssed by it. [515 H]

(c) Before r. 16(2) (which provides that a member of the service under suspensioa on a charge of misconduct shall not be required or permitl'ed to retire from service until the enquiry into the charges. against him is concluded and a final order passed) would be at.tracted it must .be sho\vn that a member of the service was under suspension on a charge of migconduct and an enquiry was being conducted against him. No misconduct having l'een tlleged against the respondent, it cannot be said that r. 16(2) was attracted and that he was deemed to have been retained in service until the enquiry was concluded.

[516 F-GJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2152 of 1969.

 D Appeal by Special Leave from the Judgment and Order dated

1-8-1967 of the Assam and Nagaland High Court in Civil Rule No. 256 of 1966.

Naunit Lal for the Appellant.

S. K. Dutta, S. K. Nandy and A. Sen for the Respondent.

The Judgment of the Court was delivered by

DESAI, J.-Respondent J. Ahmed joined service in Assam State in 1945 and some time in 1959 came to be promoted to the Indian Administrative Service Cadre. In that very year he was posted as Deputy Commissioner and District Magistrate, Nowgollg District.

While he was holding the aforementioned post, some time in the beginning of June 1960 there were large scale disturbances in Nowgong city and District area described in official parlance as 'language disturbances'.

There was considerable damage to property.

One Shri A N. Kidwai, the then Additional Chief Secretary to the Government of Assam, undertook an inquiry into the causes of disturbances at Nowgong with a view to ascertaining the responsibility of District o:fflcials.

After Shri Kidwai submitted his Report, the Government took the first step of suspending the respolldent from service by an order dated 14th September. 1960. The Chief Secretary to the Government of Assam by his commnnication dated 13'th Seprember 1960 conveyed to the. respondent various charges framed against him and called upon him to submit his explanation.

A statement of allegations was annexed to the communicatioll.

Respondent submitted his explanation and thereafter the Government appointed respondent

l •

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J •

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.. '-('

No. 4, K. Balachandran as the Enquiry Officer. After the rnquiry was concluded, the Enquiry Officer submitted his report. It may be noticed that respondent was born on 1st February 1907 and according to Rule 16 of the All India Services (Death-cum-Retirelll".Jlt Benefits) Rules, 1958 ('Retirement Rules' for short), then in force, the age of retirement being 55 years, the respondent would have retired from servio~ on 1st February 1962. First, the Governor of Assam by his order dated 31st January 1962 purporting to exercise power under Rule 16(1) of the Retirement Rules, directed that the respondent then under suspension be retained in service for a period of three months beyond the date of his retirement which fell on Ist February 1962 or till the termination of departmental proceedings drawn up against him whichever is earlier.

By subsequent orders dated 21st June 1962, Ist September 1962, 23rd February 1963 and 28th August 1963 respondent was retained in service, till the inquiry pending against him concluded and final orders were passed in the proceedings. [t may be mentioned that the order dated 28th August 1963 was made by the Governor in exercise of the powers conferred by subrule (2) of rule 16 of the Retirement Rules.

The Enquiry Officer submitted his report holding charges 1, 2, 3, 5 and 6 proved and in respect of charge No. 4 the finding recorded was that though the charge. was proved, the Enquiry Officer took note of certain extenuating circumstances mentioned in the report.

A Memorandum dated 22nd February 1963 was served by the Government of India on the respondent forwarding the report of the Enquiry Officer and the respondent was called upon to show cause why the provisional penalty determined by the Government of removal from service be not imposed upon him.

Ultimately, by order dated 11th October 1963 the President, after consultation with the Union Public Seryice Commission, imposed the penalty of removal from service on the respondent.

A memorial submitted by the respondent to the President under Rule 20 of the All India Services (Discipline & Appeal) Rules, 1955, ('Discipline and Appeal Rules' for short), 'against the imposition of the penalty was rejected.

The respondent filed a petition under Article 226 of the Constitution in the High Court of Assam and Nagaland.

Two contentions were raised before the High Court: (1) Whether rule 16(2) of the Retirement Rules is attracted so as to retain the respondent in service beyond the period of his normal retirement for the purpose of completing disciplinary proceedings against the respondent; and (2) if rule 16(2) was not attracted, whether the retention of respondent beyond the normal period of his retirement was valid and if it was not valid, whether he

could be removed from service after he had actually and effectively retired from service 7 While examining these two contentions, the High Court was of the opinion that disciplinary proceedings can be held and punishment can be imposed for misconduct and the charges ex facie did not disclose any misconduct because negligence in performance of duty or inefficiency in discharge of duty would not constitute misconduct.

On the second point it was held that if the Enquiry was not for any misconduct, sub-rule (2) of rule 16 would not be attracted and the Government had no power to retain the respondent in service for the purpose of holding or completing disciplinary proceeding which can only be tor misconduct, and as there was no inquiry into what can be styled as misconduct, the retention in service of the respondent beyond the period of retirement was not legal and valid, and, therefore, the respondent could not be removed from service from which he had retired. In accordance with these findings, the writ petition filed by the respondent was allowed declaring that the respondent was deemed to have retired from service from 1st February 1962 and that the punitive or disciplinary action taken against him after that date is completely without jurisdiction and wholly unjustified, and the same was quashed.

The Union of India and the State of Assam have preferred this appeal by special leave.

Rule 3 of the Discipline and Appeal Rules provides that the penalties therein set out may, for good and sufficient reasons, be imposed on a member of service.

One such penalty prescribed therein is 'removal from service which shall not disqualify for future employment'. Rule 4 prescribes the authority competent to institute disciplinary proceedings.

Where a member of a service has committed any act or omission which renders him liable to any penalty specified in rule 3, an inquiry shall be held according to procedure prescribed in rule 5.

Therefore penalty prescribed in rule 3 can be imposed upon a member of the service for any act or omission committed by him which, according to rule 3, must provide good and sufficient reason to impose one or the other of the penalties mentioned therein.

Rule 7 of the Discipline and Appeal Rules enables the Government to put under suspension a member of the Service during disciplinary proceeding if having regard to the nature of charges and circumstances the Government thinks it proper to do so.

Sub-rule (2) of Rule 16 of the Retirement Rules as it stood at the relevant time reads as under :

"16(2). A member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service but shall be retained in service until the

• •

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inquiry into the charges against him is concluded and a final A order is passed".

A survey of these rules would show that disciplinary proceedings can be held against a member of the service for any act or omission which renders him liable to a penalty and such penalty can be imposed for good and sufficient reasons.

All India Services (Conduct) Rules, i954, prescribe a code of conduct for members of service. Discipline and Appeal Rules provide for disciplinary action and imposition of penalties.

Sub-rule (2) of rule 16 of the Retirement Rules contemplates a situation where a member of service against whom disciplinary proceeding is pending is likely to retire and the proceedingl! may be thwarted and provides for his retention in service beyond the date of his

retirement till the completion of the inquiry, provided the delinquent officer is under suspension on a charge of misconduct.

The respondent contended and the contention has found favour with the High Court that the charges framed against the respondent, even if they are held proved, would not constitute misconduct, and, therefore, it could not be said that he was under suspension on a charge of misconduct and accordingly &ub-rule (2) of rule 16 would not be attracted and he could not be retained in service beyond the date of his

retirement. It was said that retention in service being invalid, imposition of penalty after his retirement is illegal.

Therefore, what constitutes misconduct for a member of a service liable to be removed from service on proof ofsuch misconduct in a disciplinary proceeding, looms large in this case.

To appreciate the contention it is better to have a look at the charges framed against the respondent.

They are as under :

"(i) Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being conveyed.

(ii) Showed complete lacl: of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and co-ordinate co-operations with the police to restore Law and Order;

(iii) Did not personally visit the scenes of disturbances within the town or in the Rural areas, in time to take personal control of the situation and to exercise necessary supervision;

(iv) Did not keep Government informed of the actual picture and extent of the disturbances;

(v) Showed complete inaptitude, lack of foresight, Jack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete break down of B Law and Order in Nowgong town as well as the rural areas of N owgong District.

Thus you proved yourself completely unfit to hold any responsible position".

C The Inquiry Officer has treated the statement in the Jetter conveying

the charges that the respondent proved himself completely unfit to hold a responsible position as a separate and independent charge which on the face of it is merely a surmise or a conclusion drawn from the five charges set out above.

This surmise or conclusion has to be ignored and cannot be treated as a specific charge.

The five charges listed above at a glance would convey the impression that the respondent was not a very efficient officer.

Some negligence is being attributed to him and some Jack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges. to wit, charge No. 2 refers to the quality of Jack of leadership and charge No. 5 enumerates inaptitude, lack of foresight, lack of firmness and indecisiveness.

These are qualities undoubtedly expected of a superior officer and they may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not, or they may be relevant for deciding the competence of the person to hold the post, but they cannot be elevated to the level of acts of omission or commission as contemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under rule 3.

Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules.

The words 'acts and omission' contemplated by rule 4 of the Discipline and Appeal Rules have to be understood in the context of the All India Services (Conduct) Rules, 1954 ('Conduct Rules' for short). The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services.

Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly en-

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tail penalty.

Failure to come u_p to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty.

The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If rule 3 were the only rule iu the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation.

But rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be safely

stated that an act or omission contrary to or in breach of prcscr:bcd rules of conduct would constitute misconduct for disciplinary proceedings.

This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules.

The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct.

Some other act or omission may as well const:tute misconduct.

Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general rule 3 prescribing devotion to duty.

It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of admin.istrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct.

Charges in this case as stated earJ:cr clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent.

These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.

F \ It would be appropriate at this stage to ascertain what generally • constitutes misconduct, especially in the context of disciplinary proceedings entailing penalty.

Code of conduct as set out in the Conduct Rules clearly ind'catcs the conduct expected of a member of the service.

It would follow that G that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce v. Foster(')]. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle ·(lndicator Newspapers)(')].

Th; s H

(1) 17 QB 536 at 542.

(2) [1959] I WLR 698.

13-253SCI/79

A view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur('), and Satubha K. Vaghela v. Moosa Raza(2 ). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under :

B "Misconduct means, misconduct arising from ill motive;

acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct".

In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v.

Workmen, Miss Shanti Patnaik (') , in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive, In S. Govinda Menon v. Unio nof India(•), the mamnner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings.

A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P. H. Kalyani v.

Air France, Calcutta("), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct.

There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating '.he developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.

An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence.

Carelessness can often be productive of more harm than deliberate wickedness or malevolence.

Leaving aside the classic example of the sentry who sleeps at his post

(1) 61 Born. L.R. 1596.

(2) 10 Guj. L.R. 23.

(3) [1966] 2 SCR 434.

(4) [1967] 2 SCR 566,

(5) [1964] 2 SCR 104.

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and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument

howing snag in engine and the aircraft crashes causing heavy loss of life.

Misplaced sympathy can be a great evil [see Navincl1'mdra Shakerchand Shah v. Manager, Ahmedabad Co-op. Departme/1/ Stores Ltd.(')]. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.

The High Court was of the opinion that misconduct in the context

Df disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea.

We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary D proceedings.

Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter

alic alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation.

Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges Nos. 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent.

It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. T)lese are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess.

They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, charges 2, 5 and 6 are clear surmises on account of the failure Df the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances.

We do not take any notice of charge No. 4 because even the Enquiry Officer has noted that there are number of extenuating circumstances which may exonerate the resp()lldent in respect of that charge.

What was styled as charge No. 6 is the conclu-

(1) (1978) 19 G.L.R. 108 at 120.

sion, viz., because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any respomible position.

Somehow or other, the Enquiry Officer completely failed to take note of what was alleged in charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against the respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not: by way of punishment.

But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct, viz., such acts and omissions -which would render him liable for any of the punishments set out in rule 3 of the Discipline & Appeal Rules, 1955.

No such case has been made out.

Mr. Naunit Lal for the appellant contended that the word 'misconduct' is nowhere used either in the Conduct Rules or in the Discipline and Appeal Rules and the Court should not import any concept of misconduct in this inquiry.

The word 'misconduct' has relevance here because the respondent in due course would have retired from sen-ice on 1st February 1962 on attaining the age of 55 years.

The inquiry could not be completed before the relevant date and it became necessary for the Government to retain the respondent in service beyond the normal period of retirement on superannuation for continuing the inquiry.

Rule 16(1) of the Retirement Rules 1955 as it stood at the relevant time provided for retirement on superannuation on attaining . the age of 55 years.

There is a proviso to rule 11}(1) which enables the Stile Government to postpone the period of retirement and retain the Government servant in service for an aggregate period not exceeding six months and if the retention in service beyond that period is required, the same will have to be with the sanctioll" of the Central Government.

Respondent would have retired from service on attaining the age of 55 years on 1st February 1962. He was served with a charge-sheet dated 13th September 1960. The inquiry could not be completed before the date of retirement of the respondent.

The Government of Assam by order dated 31st January 1962 retained the respondent in service for a period of three months beyond the date of his retirement which fell on 1st February 1962 or till the termination of the departmental proceedings drawn up against him whichever is earlier. In view of the language of rule 16(1), the Assam Government had no power to extend the period of service of a member of the service beyond a period of six months in the aggregate.

Therefore, retention for a period of three months would be legal and valid with the result that the

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date of retirement of the respondent would be postponed to 1st May

1962. Admittedly no order was made by the Assam Government before 1st May 1962.

The order postponing the date of retirement and retention of the respondent in service beyond 1st May 1962 was

made on 21st June 1962. No order was made by the Assam Govern- B ment for postponing the period of retirement of the respondent and his retention in service before 1st May 1962.

The State Government had power under rule 16(1) (a) of the Retirement Rules to retain the respondent in service for a period of six months in aggregate and therefore, even though specific period was mentioned in the order, simultaneously providing for retention in service till the date of termination C of the proceedings, the extension would be valid for a periocl of six months in the aggregate if the inquiry was continuing till the expiration of six months but not exceeding six months.

In that event the respondent would retire from service by 1st August 1962.

Putting the construction on rule 16(1) (a) and the order of extension, most favourable to the State Government, it may be stated at once that retention in D service upto 1st August. 1962 would be valid but unfortunately the inquiry was not over by 1st August 1962. No order was made before 1st August 1962 for retention of the respondent in service beyond 1st August 1962.

The order next in succession is of 1st September 1962.

This order is again made by the State of Assam.

The State Government had no power to retain a member of tl1e service for. a period E exceeding six months in the aggregate after the date of his normal retirement. The maximum period for which retention could be ordered by the State Government being thus six months, the respondent would !iave retired from service on 1st August 1962. Even if aii.-.. order had been made by the State Government to retain the respondent F in service it would he without jurisdiction and the order in fact was made on 1st September 1962.

Now, undoubtedly under rule 16(1) (b) the Central Government has power to retain a member of the service in service after the date of retirement for any period beyond six months.

But in this connection it may be pointed out that no such order appears to have been made by the Central Government.

All the subsequent G orders were made by the Government of Assam.

Such orders made by the Government of Assam would not have th~ effect of retaining the respondent in service beyond a period of six months from the date of his normal retirement.

That being the maximum period, the State Government had no power to retain the respondent in service. If the State Government could not retain him in service beyond 1st August, H 1962, it could not continue the inquiry thereafter. This position seems to he clearly established by the decision of this Court in State of Assam

v. Padma Ram Borah('). In that case the State Government had made an order to retain the Government servant in service up to the end of March 31, 1961. Subsequent order extending the period was made on 9th May 1961. This Court held that according to the earlier order of the State Government itself the service of the Government >ervant had come to an end on March 31, 1961 and the State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961.

It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on !st August 1962 and the State Government not having the power to retain the res-· pendent, a member of the Indian Administrative Service, beyond a period of six months, the respondent could not be said to have continued in service so that an inquiry could be continued against him.

Mr. Naunit Lal, however, contended that sub-rule ,(2) of rule 16 D clearly provides that a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service until the enquiry into the charges against him is concluded and a final order is passed. It is in the context of snb-rule (2) of rule 16 that the question of the nature of the proceedings held against the E respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made.

But before sub-rule (2) of rule 16 would be attracted it must be shown

#111' lllat the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him.

As F pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent.

There was an inquiry but before sub-rule (2) of rule 16 is attracted, it had to be an inquiry on a charge of misconduct.

What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings.

Therefore, it G could not be said that an inquiry on a charge of misconduct was being held against the respondent and sub-rule (2) of rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded.

It thus appears crystal clear that there was no case stricto sensu for H a disciplinary proceeding against the respondent.

In fact the inquiry was held to establish that the respondent was not fit to hold a respon-

(1) AIR 1965 S.C. 473.

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sible post.

The respondent was actually retiring from service and there A was no question of his any more holding a responsible position.

Yet not only the inquiry was initiated but he was retained in service beyond the date of his normal retirement till the final order was made on 11th

October, 1963 when he was removed from the Indian Administrative Service. It appears that there were large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy.

Some charges were framed none of which could constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty o[ decision making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was io continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in s, rvice beyond the period of his norm~! retirement with a view to p_unishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclnsion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void.

Accordingly, this appeal fails and is dismissed with costs.

P.B.R.

Appeal dismissed.

UNION OF INDIA & ORS

J. AHMED

March 7, 1979

D. A. DESAI

0. OIINNAPPA REDDY, JJ.

August 28, 1963

[1967] 2 SCR 566

[1964] 2 SCR 104

Discipline find Appeal Rules

Central Government

Naunit Lal

S. K. Dutta

S. K. Nandy

A. Sen

DESAI

Nowgong city

A N. Kidwai

Government of Assam

Nowgong

Kidwai

K. Balachandran

Assam

21st June 1962

Ist September 1962

23rd February 1963

28th August 1963

22nd February 1963

Government of India

Union Public Seryice Commission

Discipline and Appeal Rules

Article 226

High Court of Assam and Nagaland

1st February 1962

Union of India

State of Assam

Discipline and Appeal Rules

Nowgong District

Nowgong town

N owgong District

Stroud

[1966] 2 SCR 434

[1967] 2 SCR 566

[1964] 2 SCR 104

Appeal Rules, 1955

Naunit Lal

Retirement Rules 1955

13th September 1960

Government of Assam

31st January 1962

Assam Government

Assam Govern- B

1st August 1962

1st August. 1962

1st September 1962

1st August, H 1962

March 31, 1961

9th May 1961

April 1, 1961

st August 1962

11th

October, 1963