Harjinder Kaur Sandhu (Smt.) Vs. Union of India (Uoi) and anr. - Court Judgment

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- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - an employer has the power to suspend if the employer is satisfied that it is necessary or desirable to place the workman under suspension. (a) where a disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to place the workman under suspension, he may by order in writing suspend him with effect from such date as may be specified in the order. clause 21-a of the orders, clearly postulates passing of a conscious order by a competent authority even where a workman is facing criminal investigation or trial. 7. a perusal of the above provisions would clearly show that an employee who is detained in custody for a period exceeding 48 hours, shall be deemed to have been suspended with effect from the date of detention. the aforesaid facts clearly show that the circumstances in the aforesaid case were converse to the facts in the present case.s.s. nijjar, j.1. we have heard the learned counsel for the parties at length and perused the record of the case.2. under clause 21-a(a) of the certified standing orders (hereinafter referred to as 'the orders'), an employer has the power to suspend the workman against whom disciplinary proceedings are either contemplated or pending or where criminal proceedings in respect of any offence are under investigation or trial. an employer has the power to suspend if the employer is satisfied that it is necessary or desirable to place the workman under suspension. clause 21-a(b)(ii) of the orders provides for subsistence allowance during the period of suspension. the petitioner is facing the criminal trial for offences under sections 302/304/498-a/120-b of the indian penal code and she has been confined in jail since 28.12.2003. earlier by an order dated 31.12.2003, the petitioner was placed under suspension under clause 21-a of the orders with effect from 28.12.2003. the petitioner was informed that she would be entitled for all the financial benefits as provided under clause 21-a of the orders. the petitioner was never paid any subsistence allowance. ultimately, the respondents passed an order dated 16.7.2004 by which the order of suspension dated 31.12.2003 has been withdrawn. it has also been ordered that period of absence of the petitioner will be decided on the conclusion of the enquiry proceedings pending against her. the petitioner challenges the aforesaid order on the ground that she having been suspended, is entitled to receive the subsistence allowance.3. the respondents have filed a written statement. it has been stated that the order of suspension dated 31.12.2003 had been issued on an erroneous understanding of clause 21-a(a) of the orders. under this clause, the employer has the discretion to suspend or not to suspend a workman against whom disciplinary proceedings are contemplated or pending. an employer, in every case, is not bound to pass an order suspending an employee against whom disciplinary proceedings ate pending in respect of an offence in which he/she is facing trial. the workman cannot demand as a matter of right that he/she must be suspended when he/she is arrested or facing trial, there is no provision in the certified standing orders of deemed suspension of a workman. since the order dated 31.12.2003 had been erroneously issued, it was withdrawn by the answering respondent by order dated 16.7.2004. since the initial order was against the rules, no legal right of the petitioner has been infringed in passing the cancellation of suspension order dated 16.7.2004. we have considered submissions made by the learned counsel for the parties.4. clause 21-a (a) of the certified standing orders reads as follows:-21-a suspension and suspension allowance during disciplinary proceedings.(a) where a disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to place the workman under suspension, he may by order in writing suspend him with effect from such date as may be specified in the order. a statement setting out in detail the reasons for such suspension, shall be supplied to the workman within a week from the date of suspension.5. clause 21-a(b) of the orders provides that where a workman is placed under suspension under clause 21-a of the orders, he/she shall be entitled to subsistence allowance equal to one-half of the basic wages for the first 90 days and three-fourth of such basic wages in case the suspension period exceeds 90 days:clause 21-a(b)(ii) is as under:-where the enquiry is by an outside agency or as the case may be, where criminal proceedings engaged the workman are under investigation or trial the subsistence allowance shall, for the first one hundred and eighty days from the date of suspension, be equal to one-half of his basic wages, dearness allowance and other compensatory allowance to which workman would have been entitled to if he were on leave. if such enquiry or criminal proceedings gets prolonged and the workman continues to be under suspension for a period exceeding one hundred and eighty days the subsistence allowance shall for such period be equal to three-fourth of such wages.provided that where such enquiry or criminal proceedings is prolonged beyond a period of one hundred and eighty days for reasons directly attributable to the workman, the subsistence allowance shall, for the period exceeding one hundred 'and eighty days, be reduced to one-fourth of such wages.6. in our opinion, the provisions of clause 21-a(a) and 21-a(b)(ii) of the orders would be applicable only, in case, where a workman employee is suspended by an order passed by a competent authority. there is no provision under the certified standing orders where a workman can be deemed to be suspended where criminal proceedings are pending against him/her. clause 21-a of the orders, clearly postulates passing of a conscious order by a competent authority even where a workman is facing criminal investigation or trial. the provisions contained in clause 21-a of the orders, is in contrast to the provisions that has been made in 'scl conduct, discipline and appeal rules' which are applicable to various employees other than the workman under the industrial disputes act. in case of the other employees, rule 26 deals with suspension, which is as under:-rule 26 suspension:(i) the appointing authority or the authority which is empowered through delegation by the appointing authority or any authority to which it is subordinate or the disciplinary authority or any authority empowered in that behalf by the management by general or special order may place an employee under suspension:(a) where disciplinary proceedings against him is contemplated for is pending; or(b) where case against him in respect of any criminal offence is under investigation or trial; or(c) where, in opinion of the aforesaid authority, he had engaged himself in activities prejudicial to the interest of the company.(ii) an employee who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hrs., shall be deemed to have been suspended with effect from the, date of detention by the order of the appointing authority; and shall remain under suspension until further orders.7. a perusal of the above provisions would clearly show that an employee who is detained in custody for a period exceeding 48 hours, shall be deemed to have been suspended with effect from the date of detention. the respondents, in our opinion, have correctly decided to treat the petitioner to be absent from duty by withdrawing the order of suspension dated 31.12.2003. the order had been issued on the erroneous assumption that clause 21-a of the orders provides for deemed suspension. a plain reading of clause 21 -a of the orders makes it abundantly clear that the respondents have to pass a conscious order suspending an employee, even in cases where he/she is facing a criminal investigation or trial.8. mr. j.s.bhatti, learned counsel for the petitioner has relied on a division bench judgment of this court in the case of harinder singh v. state of punjab 1998(1) s.c.t. 7089, in support of his submission that the petitioner has to be treated under suspension. the aforesaid judgment, in our opinion, is not applicable to the facts of the present case. the division bench in the aforesaid case had the occasion to consider rule 4.1(b) and 7.5 of the punjab civil services rules (punishment and appeal) rules, 1970. in that case, a criminal case had been registered against the petitioner. he was arrested on 12.12.1997 and released on bail on 18.12.1997. it was not disputed that for the period during which he remained in custody, he will be deemed to be under suspension by the operation of the provisions of the punjab civil services rules. the only challenge to the o rder w as o n t he g round that t he petitioner could not h ave been r etrospectively placed under suspension. the aforesaid facts clearly show that the circumstances in the aforesaid case were converse to the facts in the present case. in the present case, the petitioner,is praying for a direction that she be placed under suspension and be granted subsistence allowance.9. in our opinion, no such mandate can be issued. whether a workman is to be suspended or not, is for the respondents to decide. clause 21-a of the orders does not provide for any deemed suspension.10. in view of the above, we find that no legal right of the petitioner has been infringed. dismissed. no costs.