Khem Chand vs The Union Of India And Others on 13 December, 1957
12. The decision of the Constitution Bench in Khem Chand v. Union of India [1963] Supp. 1 S.CR. 229, was referred to on behalf of both sides. This Court was, in that case, dealing with a matter governed by the earlier Rules of 1957, but the learned Counsel relied upon the decision on the ground that the 1957 Rules and the present 1965 Rules are in pan materia. This is not quite accurate. The main portion of the present Sub-rule (4) is in identical terms as Rule 12(4) of 1957 Rules, but the proviso in the present Sub-rule (4) (quoted above) is an addition which was not there in 1957 Rules at all. This addition is significant inasmuch as it cuts down the scope of the application of automatic suspension, confining it only where the court interferes purely on technical grounds without going into the merits of the case. The decision of this Court upholding the constitutional validity of the earlier Sub-rule (4) (without proviso) thus goes a long way to support the case of the respondent, but is of no help at all to the appellant. The learned Counsel for the appellant, has, however, placed great reliance on the observation in the judgment to the effect that it was "entirely unlikely however that ordinarily a Government servant will not be placed under suspension prior to the date of his dismissal". A close examination of the judgment clearly shows that on the basis of this observation, present Sub-rule (4) cannot either be struck down as illegal or be limited in its application only to such cases where the Government servant has been earlier under suspension. The Court, in the cited case, had, before rejecting the plea of discrimination, considered the two Sub-rules (3) and (4) in the light of the other relevant circumstances and the rules, at pages 239 and 240 of the report and had rejected the appellant's argument. Proceeding further, the observation mentioned above was made in relation to Sub-rule (3) and not Sub-rule (4). Besides, we cannot ignore the fact that the observation was made in respect to Rule 12(4) of the 1957 Rules which did not contain the proviso as in the present Sub-rule (4). The learned Counsel for the appellant, next, drew our attention to the fact that Khem Chand, the appellant in that case, was under suspension earlier, and, on that basis urged that the case is distinguishable. We do not find any merit in this suggestion. The decision upholding the validity of Sub-rule (4) was not based on this fact and was arrived at unconditionally and covers the present case against the applicant. Finally, the learned Counsel for the appellant contended that Khem Chand's judgment was, in any event, erroneous and, therefore, fit to be re-examined by a larger Bench.