Partly allowed

P.R. Nayak v. Union of India

Supreme Court7 Dec 19711971 INSC 339 · [1972] 2 S.C.R. 6951971 INSC 339

Case brief

AI extract

What is this about?

The appellant sought quashing of his suspension order and declaration of retirement, contending suspension was premature as proceedings were only contemplated and his retirement date was irrevocable. The majority held suspension requires actual initiation of proceedings. A minority held based on prior precedent that preliminary establishing of a prima facie case suffices to initiate proceedings.

What did the court decide?

Quashed the order of suspension. No order as to costs.

What the court decided

P.R. Nayak versus Union of India — Pension and Retirement Benefits | Supreme Court (1972)

69s;

P.R. NAYAK

UNION OF INDIA

December 7, 1971

[S. M. S!KRI, C.J., J. M. SHELAT, A. N. RAY, I. D. DUA D. G. PALEKAR AND G. K. MITTER, JJ.)

¶9

Civil Service-Member of Indian Civil Service-Suspension of.

¶10

All hldia iervices (Dis~ipline and Appeal) Rules, 1969 r. 3--Scope of -If civil servant can be sHspellded when disciplinary proceedings are i11 contemplation.

F11ndamental Rule5', rr. 56(!) and 56 (ff)-Scope of-If r. 56(/f) ultra .vires Art. 14 of the Constitution.

¶15

The appellant was a member of the Indian Ci\il Service, .and under F.R. 56(f) he was due to retire on November 25, 1970. The question whether a prima facie case against him was made out with respect to cer·· tain charges was referred to a Commission under the Commission of Enquiries Act, 1952, in October 1970. On November 3, 1970, he expressed his willingness to accept extension of service by 4 months and hi~ service was extended till March 25, 1971. The appellant submitted his explanation to the Commission and the Commission after considering it, made an interim report in January 1971, that a prima facie case had been made out against the appellant. On March 23, 1971, an order was madC' under r. 3(l)(a) of the All India Services (D & A) Rules, 1969 saying "whereas disciplinary proceedings against Shri P. R. Nayak, I.C.S. are contemplated. . . . . . the President. . . . . . hereby places the said Shri P. R. Nayak under suspension with immediate effect until further orders .. "

¶16

The appellant filed a petition for quashing the order of suspension but the High Court dismissed the petition.

¶17

In appeal to this Court, it was contended that : (I) the order was violative of r. 3 of the All India Services (D & A) Rules; (2) Under P.R. 56(f) the date of retirement was fixed as rigid and the appellant.having retired on November 25, 1970 no further action could be F taken against him as a member of the I.C.S.; (3) his retention in the post only amounted to b-employment; ( 4 f since he became Secrebry in the Ministry of Works, Housing and Urban Development in 1969 he should have been retained in that post for full 5 years till 1974 under the proviso to F. R. 56(f), and the extension for four months only was 11legal; (5) the order of suspension without specifically denying his request 10 retire on March 25, 1971, was defective; and (6) P.R. 56(ff)-by which an officer like the appellant under orders of suspension is not to be G permitted to retire till the enquiry against him is concluded-is ultra vires. HELD: (Per S. M. Sikri, C.J .. I. M. Sbelat, I. D. Dua anti D. G. Palekar, JJ.) : The appeal ·must ·su~ceed on the first contention. !709 D-E)

¶18

¶19

(a) There is no inherent power of suspension in Government, and the only rule on which reliance was placed for the appellant's suspension is r. 3 of the All India S-ervices (D & A) Rules. (714 B-C]

¶20

(b) An order of suspension which does not adversely affect the rights and privileges of a Government Servant, but merely restrains him from discharging his official duties may be within the general inherent compc-

[1972] 2 S.C.R.

696

SUPREME COURT JlEPORTS

¶25

lence of the Government, but the impugned order seriously affects some of the appellant's rights and privileaes under the conditions of his service. namely; (i) During the period of suspension .he is not entitled to his fuli salary but only to some allowances; (ii) he is not permitted to retire; (iii) in order to get subsistence allowance he is prohibited from engaging in any other employment, profession or vocation and (iv) he is prohibited from leaving headquarters without prior permission of Government. Since these prejudicial consequences automatically flow from the order of suspension, the clear and explicit language of the rule must not be strained to the appellant's prejudice so as to authorise his suspension on mero cJntemplation of disciplinary proceedings. 1714 D-HJ

¶26

Sub-rule (I) (a) of r. (3) empowers the Government which initiates any disciplinary proceeding to place under suspension a member of the service against who1n such proceedings are started. The language is plain and unambiguous and does not suggest that suspension can be ordered merely because discipilnary proceedings are contemplated. The language of sub-rr. (4) to (7) also does not authorise suspension merely because disciplinary pro.ceedin_gs are contemplated. The scheme underlying r. 3 is indicative of the intention of the rule-making authority to restrict its operation lo those cases in which Government has sufficient material. ""1ether after preliminary investigation or otherwise, and the disciplinary proceedings have in fact commenced, and not merely when they are contemplated. [709 E-H; 710 A-CJ

¶27

(d) The view taken in Tarak Nath Ghosh's case (A.I.R. 1971 S.C. 823). that under r. 7(1) of the All India Services (D & A) Rules, 1955- replac.ed by the present r. 3(1) of the 1969-rules--the Government is entitled to suspend an officer when preliminary investigation has been made, but even before definite charges have been communicated, cannot be accepted. Reliance for the view taken in that decision was placed on Govinda Menon's case [1967) 2 S.C.R. 566, but in Govinda Mtnon's case the order of suspension was held also to be the order initiating disciplinary proceedin~s. The legality of a composite order both initiating disciplinary proceedings and suspending Go,inda Menon was not questioned in the case. [710 C-E; 712 G; 714 A-Bl

¶28

(e) Rule 12 of the Central Civil Services (Classification, Control anti Appeal) Rules, 1957, provides for suspension of a Government servant oding disciolinarv proceedins or when a disciplinary oroceeding i11. con· r-molated. This phraseology has been retained in the corresponding 1965-rufe. iust as the phraseology in r .. 7 (dealing with suspension during disciplinary proceedings) in the All India Services (D & A) Rules, 1955. has been retained in the corresponding r. 3 of the 1969-rules. Courts n1av presume that the draftsman knew of the existence of the various rules. and if with that knowledge he used different phraseology in the respective rules. it can be assumed that the actual words used in the different rule."- were ourooselv selected to exoress precisely intention o.f the rule m'.lking authoritv. [715 A-H; 716 A-BJ

[)

(f) The existence of r. 40(1) of the Railwav Protection Force Rules. 1959. providing for suspension of a member of the Force when investiga- tion into charges a.eainst him is contemplated, further fortifies our inter· nretation of r. 3 of the All fndia Services (D & A) Rules, 1969. {:7'16 {'-El

¶36

nn this view, the majority did not consider the other contentions.] (Per A. N. Rav and G. K. Mitter. JJ.\ dissentin11 :

¶37

¶38

The appeal must be dismissed.

697

P. R. NAYAK V. UNION

(I) (a) The three features of r. 3 of the All India Services (D & A) Rules. 1969. are, (i) the authority which places a member of the service under suspension, namely, the Government which initials any disciplinary proceedings; (ii) the time when the order is made, namely, when the Government is satisfied that it is necessary or desirable to order suspension; and (iii) the person against whom the order is made, namely, the member of the service against whont such proceedings are started. The B words 'which initiates any disciplinary proceedings' and 'against whom >uch proceedings are started' are merely descriptive of the Governnr.nt nd the m.cmber of the servile, re:>pecllvely. There is no restriction on the power of suspension by making it dependent on .the· condition precedent of the commencement of inquiry into articles of charge against the Government seryant. The rule does not say that the Government which h"s jnifial,ed disciplinary proceedings may order suspension, or that a n1en1ber against who111 such proceeding. lu11·e b('en staried can be susc pended. [731 C·Fl

¶44

(b) The provision cannot be interpreted by the consideration that the powers may be abused by arbitrary exercise, because, the victim of any such arbitrary exercise bas a right to con:o to court and the court will protect him against any ma/a fide action. (731-G-H]

¶45

( c) The order of suspension indicates that President of India was D satisfied thot it was necessary and desirable to suspend th! appellant on an objective consideration of all the available material and that the order was not passed merely to humiliate the appellant. [732 A, E-F]

¶46

(d) The sub-rules to r. 3 establish that the power of suspension is exercisable in instances other than an enquiry under r. 8, {or example. when l:Thninal charges and investigation or trial arc pending. That is, there cnn h.' suspension earlier th:in th.:! trial during investigation. [.733 A·B]

¶47

(e) Rule 8 of the Rules provides that when it is proposed to hold an c1uluiry, the disciplinary authority sha11 draw up articles of charge, while r. 3 requires rcg~rd to the nature of charges. The meaning of the word ·charge' in the t\vo expressions is not tb! fame. Rule 3 is of Wider amplitude as it deals \Vith the stage of a prin1a facie case and the word charaes has the \'ider meaning of accusations and imputations. [733 G·HJ

¶48

Gorii;cla Menon v. Union of /ndie1, f,1967] 2 S.C.R. 566, followed.

¶49

¶50

(g) les 3, ·7, 8 and 9 indicate the different stages._ of disciplinary proceedings. Therefore, disciplinary proceedings can be saia· to have· been started when complaints about the misconduct of a Government servant arc entertained followed by a preliminary enquiry culminating in the satisfaction of the Government that a prima facie case had been made out for framing formal ch:irges. No formal order is necessary for initiationG of disciplinary proceedings and the order of suspension in the context of the preliminary investigation and a prima facie case ca itself be treated as n initiation of d!sciplinarv P!eedings. Such suspension is not a punishment. but IS tn aid of d1Sc1plmary proceedings and is ordered tof:icilitate free investiation and collection of evidence, When such an order of suspension itself shows that the Government was of the view th'1t a prima facie case had been made out. the fact that the order aJso. mentions that disciplinary proceedings are contemplated makes no diffeH rence. Also. the fact that in other rules of service an order of suspension may be made when disciplinarv proceedings are contemplated does not· require that a memher of an All India Ser.ice should be dealt 'with dit'ferntly [736 A-C; 737 G-H; 738 A·F)

¶51

[1972] 2 S.C.R.

¶52

SUPREME COURT REPORTS

¶53

698

¶54

S. Govinda Menon v, Union of India, Ll967] 2 S.C.R. 566 and Go»ernment of India v. Tarak Nath Ghosh, A.LR. 1971 S.C. 823, followed. '

¶55

¶56

Champak/al Chimaula/ Shah v. Union of India, Ll964] 5 S.C.R. 190 .:ind Kapur v. Union of India, L1964] 5 S.C.R. 431, referred to.

¶57

(g) The explanation to r. 6 of the All India Services (Death-cum· Retirement Benefit) Rules. 1958, states that a disciplinary proceeding shall be deeme~ to be institute.! when charges framed against the pen- sioner are issued to him, or, if he has been placed under suspension fron1 an earlier date, on such date, This rule applies to all Government servants who can be placed under suspension under r. 3 of the All India Services (D & A) Rules. 1969. It is illogical and incongruous to bold that in case of other Government servants disciplinary proceedings commenced when he is placed under suspension, but it will not be so in the case of a member of the Indian Civil Service. [733 H; 734 A-CJ

¶58

¶59

¶60

Thep~fore, on the facts and circumstances of the pfesent ~~e, the order of suspension was properly and validly made. P38 G]

¶61

(2) The contention that a member of the Indian Civil Service on completion of :J.5 years service retires compulsorily and that there cannot be any extension of service, is opposed to the language of F.R.. 56(f) and inconsistent with the practice in the service. The present rule, and the earlier rules and regulations, indicate that there may be an extension of service beyond the date of compulsory retirement. The date of retirement in such a case is the extended date. [723 F-H]

¶62

(3) Sanction of retention of post at the end of 35 years, which is mentioned in F.R. 56(f) contains intrinsic authority for extension of service, and therefore the appellant's extension of sef' ... ;ce was not a new employment after retirement. Nor is it a case of a fresh contract, be- cause, a valid contract of employment is to be in compliance with Art. 299 of the Constitution. There is no authority for saying that at the end of 35 years compulsory retirement has happened and is complete and there can be no extens.ion in service. It is incomprehensible how one can be per- mitted to retain a post he was holding at the end of 35 years service, if one bas already retired compulsorily at the end of 35 years. The facts that an officer, when he is retained in a post after 35 years service, could not have any promotion or that his leave lapses and that there is a change in his entitlement to leave, do not.-n1ake the extension of service a new appointment. The service is continuous with such adjustments as to leave or promotion or posting as are permissible or possible. [724 A-D; 725 C-El

¶63

(4) (a) The contention of the appellant that he was entitled to an extension of 5 years is against the terms of !'. 56(f). The «ppellant is estoppel from challenging this extension till March 25, 1971. The appellant hims.elf asked for the extension, and has proceeded, in the petition. on the basis of the extension and asked for a declaration that he retired from service on March 25, 1971. The estoppel rightly raised against the appellant in regard to F.R. 56(f) and 56(ff) is that the order of suspen- sion was passed at a time when the appellant was in service as a result of being permitted by the President to be retained in service for a period oi 4 months pursu·:int to the appellant's agreement to an extension. [725 F-H; 726 A-E; 736 G-H]

(b) Though the order of extension did not state as to what post the appellant held, when his services were extended. for 4 months, he was permitted to retain the post he was holding. These words mean that he

¶70

699

¶71

P, R, NAYAK V. UNION

¶72

A remained a me!l'.ber of the Indian Civil Service and that he was kept in the place or position held by him. The word 'post' means in effect 'office'. [728 E-H]

¶73

(c) Retention of post with the sanction of the President under .~F.R. 56(f) is not a matter of right. The practice, shown by the various instances of extension of service establishes, ( 1) that the order ol"' extension does not indicate that the person concerne<! is mentioned with reference to B a particular post, and (ii) that the extension of s~rvic~ is in no case for _5_ years. Therefore. under F.R. 56(f) the extension m fact can be for any period, which together with the period for which he held the post doe> n(lt exceed 5 years. [720 H; 730 A.CJ

¶74

(5) The order of suspension is under r. 3 of the All India ServlCes (D & AJ Rule,, and F.R. 56(ff) is a rule laying down the consequences of tne order ot suspension. They are (i) F.R. 56(f) is deleted so as not c to come into operation during the period of suspension inasmuch as the words used are, 'notwithstanding anythinJ! contained in cl. (f) ', (ii) the member of the service shall not be requlfed or permitted to retire, and (iii) the member shall be retained in service until the enquiry into the charges is concluded. When the date of compulsory retirement is allowecl to pass by an extension of service under F.R. 56(f). the words 'reaching the date of compulsory retirement" in F.R. 56(ff) will apply to the postponed date of retirement, because the actual date of retirement is shifted. .It will D be illogical to hold that a member of the Indian Civil Service c~no.t retire because the order of suspension is before the date of compulsory retirement, but when he is on extension of service he can retire .even when an order of suspension has been passed. Therefore, the order of suspen· sion n1eans that he is in service, but his services are temporarily suspended and hence, no retirement can take place. The prohibition against retirement is embedded in P.R. 56(ff) and therefore no separate order is required or necessary to the effect that the appellant shall not be required E or permitted to retiro. !739 A-H; 740 A·BJ

¶75

(6) Fundamental Rule 56(ff) dos not violate Art. 14 on the ground that under the Civil Service Regulation 351A, a Government servant against whom disciplinary proceedings were pending could be permitted to retire. But F.R. 56(Jf) reintroduced in 1970 the old cl. (d) of the rule, which was deleted in 1962. Under F.R .. 56(d) also a Government scrvat under suspension shall not ~ required or permitted to retire on F reachmg the date of compulsory retirement. but shall be retained in service until t_he en!liry is _conluded. That rule governed by the members of the Indian CtVJI Service till 1962. Its restoration by insertins FR. 5?(ff) cannot be said to be an infraction of Art. 14. There are so1e differences between the members of the Indian Civil Service and members of te All India Servi_cs. but the differences also indicate. that there are special nghts and nnvtleg<:s for members of the Indian Civil Service. [740 B-H; 741 A-CJ

¶76

¶77

CIVIL APPELLATE JURISDICTION : Civil Appeal No 875 of 1971. .

¶78

Appeal ~om the Judgment and Order dated May 6 1!:171 of the Delhi High Court in Civil Writ No. 350 of 197 I. '

¶79

C. _K. Daph¹ ary, B. R. L. Iyengar,/. C. Ta/war, S. C. Patel H and B1shamber Lal, for the appellant.

¶80

Niren De, Attorney-General for India, 0. P. Malhotra, Ram Panjwani and S. P. Nayar, for the respondents.

¶81

[1972) 2 S.CR.

¶82

SUPREME COURT REPORTS

¶83

700

¶84

¶85

The Judgment oi the Court was delivered by

¶86

Dua, J. This appeal on certificate of fitness granted by a Division Bench of the High Coun of Delhi under Art. 133(1 )(c) ·of tlle Constitution is directed against its judgment and order dated M.!tY 6, 1971 dismissing the appellant's writ petition under Art. 226 of the Constitution.

¶87

The appellant joined the India.'l Civil Service after being selected pursuant to his success at the competitive examination held in London in 1934. He underwent the necessary period of probation and was thereafter duly admitted to the s;;id Service. He signed the necessary covenant with the then Secretary of State for India. He arrived in India on November 25, 1935. It is not disputed before us that according to Fundamental Rule 56(f) the appellant as a member of the Indian Civil Service had to retire after 35 years' of service counted from the date of his arrival in India subject to the proviso that if he had at the end 35 years' service held his post for less than five years, he might, with the sanction of the President of India be permitted !v 1"-etain his post until he had held it for live years. The appellant's date of retirement in the normal course would thus be November 25, 1970 and this is not controverted in this Court.

¶88

The appellant was appointed as Managing Director of the Indian Refineries Ltd., a Public Sector undertaking,-in October. 1963. He was appointed as Chairman and Managing Direct.or of the said undertaking and he continued to hold that office till August, 1964 when he was appointed as Chairman of the Oil and Natural Gas Commission. In January, 1965 he was appointed a~ Secretary to the Government of India in the Ministry of Petroleum and Chemicals and in February, 1969 he was appointed as Secretary in the Ministry of Works, Housing and Urban Development. In the meantime. in June, 1967 reference was made to Shri S. N. Rao, the Central Vigilance Commissioner, to inquire into the circumstances necessitating cliange iri the alignment of the pipeline of the Indian Oil Corporation in the coalfield areas of Bihar and West Bengal. The report submitted by Shri S. N. Rao in April, 1970 did not contain any finding adverse to the appellant. It appears that the Parliamentary Committee on Public Undertakings had also examined the Pipeline Division of the Indian Oil Corporation and submitted its report to Parliament on April 30, 1970. As in this report there were some findings adverse to the appellant the Government framed 9 charges against him and referred them for advice to Shri S. Dutt, the Central Vigilance Commissfoner, who, for certain personal reasons, dee lined to give any advice. In the meanwhile the Government had in August, 1970 appointed a one man Com-

P, R. NAYAK V. UNION (Dua, J.)

701

m1ss10n consisting of Shri J. N. Takru, a retired Judge of the Allahabad High Court under the Commissions of Enquiries Act, 1952, for enquiring into several matters arising out of the report of the Parliamentary Committee on Public Undertakings. Wh~ Shri S. Dutt declined to give his advice the Government in the Ministry of Petroleum and Chemicals in October, 1970 relerred to the Takru Commission for advice, the question whether prima facie charges had been made out against the appellant. The charge-sheet containing nine charges against the appellant were also forwarded to that Commission. On November 7, 1970 the Government of India intimated Shri J. N. Takru that he was·· further required to suggest if any other charge or charges appeared to him to have been prima facie made out against the appellant. The Takru Commission examined 14 charges against the appellant and before starling the enquiry required him on November 16, 1970 to submit his written statement in defence. The appellant submitted his explanation in more communications than one. They were dated 7th and 19th December, 1970 and 5th January, 1971. Shri Takru submitted to the Government an interim report on January 13, 1971 in which prima facie case against the appellant in respect of majority of the charges was stated to have been established. It was in these circumstances that it was decided to hold disciplinary proceedings against the appellant and with that end in view an order suspending him was passed on March 23. 1971.

¶102

In the meantime, on November 3, 1970 the appellant had written to Shri B. Sivaraman, Cabinet Secretary t':!e following letter :

"Shri J. N. Takru is enquiring into certain matters connected with the Pipeline projects of the Indian Oil Corporation, on which the Public Undertakings Committee of Parliament had made a report in April, 1970. These matters cover certain allegations against me, in respect of which I have not so far had an opportunity of having my say. I understand that Shri. Takru has been requested to advise Government within the next few months on whether there is any prima facie basis for these allegations. In doing so, he will give me an opportunity to explain my point of view, where necessary. On the basis of Shri Takru's report, Government will take a decision on what further action, if any, is needed. To facilitate such a course, I am willii;ig to accept an extension of service by about 4 rr.onths from the 25th November, 1970, the date of my retirement otherwise, should government decide to grant mch exterrtion."

¶107

14-L643SupCI/72

¶108

(1972) 2 S.C.R.

¶109

SUPREME COURT REPORTS

¶110

702

¶111

¶112

On November 23, 1970 the President of India passed the following order extending the appellant's sef'.ice upto March 25, 1971 :

¶113

"The President is pleased to order under the proYiso to F. R. 56(f) that the services of Shri P. R. Nayak, a member of the Indian Civil Service, who completed 35 years' of service on the 25th November, 1970, shall be extended upto the 25th March, 1971."

¶114

The order of suspension dated March 23, 1971 reads as under :

¶115

"Whereas disciplinary proceedings against Shri P. R. Nayak, JCS are contemplated;

¶116

"AND WHEREAS the President, after carefully considering the available material, and having regard to the nature of the charges against him and the circumstances of the case, is satisfied that it is necessary 1 ·and desirable to place the said Shri P. R. Nayak under -tt-" - suspension;

NOW THEREFORE the President, in exercise of the powers conferred by clause (a) of sub-rule ( 1) of rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 and all other powers enabling him in that behalf hereby places the said Shri P. R. Nayak under suspension with immediate effect until further orders.

¶121

It is further ordered that during the period that this order shall remain in force, the said• Shri P. R. Nayak shall be paid such subsistence allowance as is admissible under the rules and his headquarters shall be New Delhi which he shall not leave without obtaining the previous permission of the Central Government."

¶122

It was under these circumstances that the appellant approached the High Court of Delhi with a petition under Art. 226 of the Constitution praying for quashing the order of suspension and for a declaration that the appellant had retired from service on March 25, 1971 rnd was entitled to full benefits of retirement permissible under the covenant and the rules as guaranteed by the Constitution. It was further prayed that F. R. 56(ff) be declared as ultra vires the Constitution.

¶123

The High Court dismissed the writ petition. It held th.rt when the appellant was permitted by the President under the proviso to F.R. 56(f) to continue ito hold the post held by him at the end of

P. R. NAYAK "· UNION (Dua,/.)

703

35 years' of his service, he continued to hold that post as a member of the Indian Civil Service and not in any other capacity. He could be permitted to hold that post for a period not exceedin1g five years as contemplated by the said proviso. According to tlfe High Court even the appel!ant had understood this to ~ •the correct meaning ·and scope of cl. (f) of P.R. 56 as he had himself prayed in the writ petition for a declaration that J:i.~ had re.tired from service on March 25, 1971. The argument that an order of suspension under r. 3 (1 )(a) of All India Services (Discipline and Appeal) Rules, 191'19 could only be made against the appellant..._ after the initiation of disciplina~y· proceedings was also not accepted by the High Court. According to that Court it was enough if there were accusations or imputations against the appellant which ca1Jed for an enquiry and the Government felt satisfied that • it was necessary in the circumstances to suspend him. The -contention that P.R. 56(ff) was violative of the rule of equality guarall'teed by Art. 14 of the Constitution was also repelled and it was observed by the High Court that members of the -Indian Administrative Service who were earlier members of. the Intliim. Civil Service constituted a class distinct from the other members of the Indian Administrative Service and further that P.R. 56(ff) merely re-introduced in October, 1970 the old cl. ( d) of P.R. 56 which had beem deleted in August, 1962. By restoring the old position, according to the High Court, no new liability was imposed on the former members of the Indian Civil Service.

¶139

In this Court a number of points were raised on behalf of the appel1ant and elaborate arguments were addressed on both sides. We, however, do not consider it necessary to deal with them at Jen)!th and express our considered opinion on all of them because in our view 1his appeal can be disposed of on the short· point th!it the order suspending the appellant is bad, being violative of the relevant statutory rule.

¶140

Fundamental Rules, to regulate the conditions of se:vice of civil servants in India, were made by ·the Secretary of State in Council in exercise of the powers conferred upon him bv s. 96-B of the Government of India Act as amended in 1919. Thev came into force with effect from January, 1922 replacing the substantive rules in C:ivil Service Regulations exceot in respect of pensions. Article 565 of the Civil Services Re~ulations (replaced by the Fundamen•tal Rules in 1922) dealing with "compulsory retirement" so far as relevant provided :

¶141

"565 (a) After thirty-five years' service, counting from the date of his arrival in India. an officer shal! not, except for special reasons, and with the sanction of the Secretary of Sta•te retain his office or be appointed to- any new office:

¶142

[ 1972] 2 S.C.R.

¶143

7 04

¶144

SUPREME COURT REPORTS

¶145

• I

¶146

¶147

Provided that, if such an officer has held his office for less than five years, he may, for special reasons, with the sanction of the Government of India, be permiNed - to retain his office until he has held it for five years. The 'term "office" in this article includes an officiating appointment.

¶148

Note.-[This rul·~ does not apply to an officer holding the appointment of a Judge of a Chief Court. Such an officer is required to vacate his appointment on attaininl! the age. of 60 years.l

¶149

(b) The period of five years begins to run from the date on which the officer firnt takes up the office, whether substantively or temporarily, provided that, if temporary, he is confirmed without reverting to his substantiw appointment; but the currency of the period is not interrupted by any subsequent temporary promotion to a higher appointment.

¶150

Note.-[The term "office" as used in this Article does not include any office held under direct appointment by His Majesty the King-Emperor of India. but the retention of such an office should be subject 'to the condition prescribed in Article 563.]

¶151

F.R. 56(f) and (ff) which provide for the retirement, and retention in service, when under suspension, of a member of the Indian Civil Service, occur in Chapter IX of the Fundamental Rules, headed "Retirement". The heading of this chapter before June 26, 1970 used to be "compulsory retirement." According to the learned Attorney General the word "compulsory" was removed from the heading b.!cause of the substitution of the new clause (k) in F.R. 56 which enables certain ca't.egories of Government Servants, subject to ce~tain conditions to voluntarily retire by giving three months' notice in writing.

F.R. 56(f) and (ff) read :

¶158

"56(f) A member of the Indian Civil Service shall r<ltire after thirty-five years' service counted from ~he date of his arrival in India.

¶159

¶160

Provided that if he has at the end of thirty-five years' service held his post for less than five years he may, with the sanction of the President, be permitted to retain his post until he has held it for five years.

¶161

Note : For the purpose of this clause, officiating tenure of a post shall be included in calculating the period of five years.

¶162

¶163

P. R. NAYAK V. UNION (Dua,/.)

705

(fi) Notwithstanding anything contained in clauses (a), (d) and (f) where an officer who is member of the Indian Administrative Service or the Indian Police Ser~ vice and who before becoming such member was a member of the Indian Civil Service or the Indian Police, is under suspension on a charge of misconduct, he shall not be required or permiHed to retire on reaching the date of compulsory retirement, but shall be retained in service until the inquiry into the charge is concluded and a final order is passed thereon by the competent .- authority."

¶168

Clause (ff) was inserted on October 6, 1970. Clause (d) of c F.R. 56 as it existed between November 1946 when it was added and August 1962 when it was deleted reads :

" ( d) Notwithstanding anything contained in clauses (a), (b) and (c), a Government servant under suspension on a charge of misconduct shall not be required or permirted, to retire on reaching the date of compu1s0;:y retirement, but shall be retained in service until the ~ enquiry into the charge is concluded and a final order is passed thereon by competent authority."

¶174

This clause as is obvious was not confined to members of the Indian Civil Service but was applicable to all Government servants. With the deletion of this clause in August, 1962 and upto October, 1970, when cl. (ff) was introduced, there was no provision similar to cl. (d) of 1946 or to cl. (ff) of 1970 applicable to those officers who formerly belonged to the Indian Civil Service. In August, 1962 a new· Civil Service Regulation 351-A was substituted for the old one, which so far as relevant, reads :

¶175

"351-A.-The President further reserves to himself 'the right of withholding or withdrawing a pension or anv part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of anv pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during 'the period of his service, including service rendered upon re-employment after retirement : ·

¶176

Provided that-

¶177

¶178

1 a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or dnrin!r his re··~mployment. shall. after the final retirement of the officer. be deemed to be a proceeding

¶179

[1972] 2 S.C.R.

¶180

706

¶181

St:PREME COURT REPOR'fS

¶182

¶183

¶184

under this article and shall be continued and concluded by the authority by which iot was comm~nced in the same ~manner as if the officer had continued in service; Rule 3 ~ All India Services (Discipline and Appeal) Rules, 1969 which provides for suspension during disciplinary proceedings reads : "3. Suspension during disciplinary proceedings• ( 1) If, having r.ega·:d to the nature of the charges and the circumstances in any case, the Government which ini1iates any disciplinary proceedings is satisfied ihat it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started, that Government may( a) if the member of the Service is serving under it, pass an order placing him under suspension, or er · •' ( b) if the member of the Service is serving under another Government, request that Government to place him under suspension, pending the conclusion oi the inquiry and the passing of the final ord.r in the case : Provided •that, in case whem there is a difference of opinion between two State Governments, the matter shall be referred 1o the Central Government for its decision ( 3) A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until !he termintion of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him tn the discharge of his duties or involves moral turpitude.

¶185

( 4) A member of the Service shall be deemed to have been placed under suspension with effec<t from the daM of conviction if, in the event of conviction for a criminal offence, he is not forthwith dismissed or removed or compulsorily retired consequent on such conviction, provided that the conviction carries a sen'tence of imprisonment exceeding forty-eighi hours.

¶186

( 5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the service und.~r suspension is set aside in appeal

P.R. NAYAK v. UNION (Dua, J.)

¶194

707

¶195

or on review under these rules and the case is remitted for furlher inquiry or action or with any ather directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or _compulsory retirement and shall remain in force until further orders.

( 6) Where a penalty of dismissal, removal or compulsory retiremen1 from service impose upon a member of the service is set aside or declared or rend·red void in consequence of or by a decision of a court of law, and the disciplinary authority, on a consideration of the cii'cumsdmces of the case, decides to hold further inquiry against him on the allegations on which 1he penalty of dismissal, removal or compulsory retirement was originally imposed, th· member of the Service shall be deemed to have been placed under suspension by the Central Government frcm¹ the date of the original order of dismissal, removal or compulsory retirement and shall con1inue to remain under suspension until further orders.

¶200

7 (a) An order of stisp~nsion made or deemed to have been made under this rule 5hall continue to remain in force until it is modified or revoked by the authority competent to do so;

¶201

¶202

¶203

( b) Where a member of the Service is suspended or is deemed to have been suspended, whether in connection with any disciplinary proceeding or otherwise, and any other disciplinary proceedin2 is commenced against him during the continuance of that suspension. the authority competent to place -him under suspension may, for reasons to be recorded by him in writin~. direct 1hat the member of the Service shall continu.e to be under suspension till the termination of all or any of such proceedings;

¶204

( c) An order of suspension made or deemed to have been made under this rule may at any time be modiG fied or revoked by the authority which made or is deemed to have made the order."

¶205

Sub-rule ( 1) of this rule is a reproduction of sub-r. ( 1) of r. 7 of 1he A.LS (D & A) Rules. 1955.

¶206

It may be P~called that the appellant was appointed as SecreH tary in the Ministry of Petroleum and Chemicals in January, 1965 and he was appointed as Secretary, Works, Housidg and Urban Development in February, 1969. The first argument urged on

¶207

(1972] 2 S.C,R.

¶208

708

¶209

SUPREME COURT REPORtS

¶210

¶211

behalf of the appellant was that under F.R. 56(f) the appellant had to retire after 35 years' service counted from the date of his arrival in India. This date of retirement, according to the appellant's counsel, is fixed and rigid and is in no circumstances capable of being postponed. In other words, the period of service of the appellant could on no account be extended beyond the period of 35 years counted from the date of his arrival in India. His. retention in the post held by. him after that date could only mean his re-employment and not extension or continuation of his original service as a member of the Indian Civil Service. It was further contended 'that the appellant could be permitted to retain his post under the proviso to F.R. 56(f) only if he had held the same for less than five years on the date of his compulsory retirement. As he had held the post of a Secretary to ·the Government of India since January, 1965 it c0uld not be said that he had held the post of such Secretary for a period of less than five years on November 23, 1970. · He could, therefore, not be rctained in Indian Civil Service after the date of compulsory retirement, namely, November 25, 1970. In this connection reference was also made to 'the definition of the expression "permanent post"' contained in F.R. 9(22). This expression is deftned there to mean a post carrying a definite rate of pay sanctioned without limit of time. According to Mr. Daftry's argument the appellant held the post of a Secretary to the Government of India and the office of the Secretary, Works, Housing and Urban De.velopment on November 23, 1970 thereby emphasising the difference between "post" and "office". In the alternative it was submitted that if the proviso to F.R. 56(f) were to be construed as referring to the post of 1the Secretazy, Works, Housing & Urban Development held by the appellant since February, 1969 arid not that of a Secretary to the Gov>rnment of India, then, his retention to that post should have been for the full period of five years beginning from Februaty. 1969 and his service could not be extended for a period le&s than five years : in other words, it could not be extended only upto March 25, 1971, as was ordered by the President on November 23, 1970. According to the appellant's contention if a member of the servic exercises his choice under the proviso then he must be permitted to hold that p..>st to complete five years in that post.

¶212

Tile next argumell't pressed before us on. behalf of the appellant was that under r. 3 of the All India Services (D & A) Rules, 1969 the appellant could be placed under suspension only after disciplinary proceedings wi1h respect to a definite charge or charges ~gainst him were actually initiated or started and not merely when they were in contemplatiQn as the impugned order of the President dated March 23, 1971 expressly purports to do. Reference to Takru Commission, according to this argument, could·

P. 11.. NAYAK v. UNION (Dua, J,)

¶221

709

¶222

A by no means be considered to be the initiation or commencement of disciplinary proceedings. The language of r. 3, aceording to the learned counsel, is clear and unaml:liguous and it is .not permissible on plain reading of sub-r. ( 1) to order the appellant's suspension merely because there are some accusations or imputations against him which call for an enquiry : in the guise of: B iDJerpretation Courts cannot re-write a rule to accord with their view of what it should be. The order of suspension dated March 23, 1971, argued the counsel, must, therefore, be held to be illegal and liable to be quashed.

¶223

The third contention raised on behalf of the appellant em-· phasised a lega(defect in the order of suspension and it was argu.oo c that the order of suspension must also have denied the appellant's request to retire oil March 25, 1971. Without expressly prohibiting the appellant from retiring on March 25, 1971, the order of suspension could not so operate as to deprive him of hh right to retire on March 25, 1971 in accordance with the rules of his service read with the order extending his service upto March 25, D 1971.

¶224

In our view, the second contention possesses merit and deserves to be upheld. In case we uphold this contention it would be unnecessary for us to express any considered opinion either way on the other contentions. Rule 3 of the All India Services (D & A) Rules, 1969, which has already been set out in extenso, provides E for suspension during disciplinary proceedings. Sub-rule ( l) of this rule on its plain reading empowers the G0vernment, which initiates any disciplinary proceedings, on being satisfied, having regard to the nature of the charges and the circumstances, of the necessity or desirability of placing under suspension, the member of the Service against whom such proceedings are started, to pass F an order placing him under suspension or if he is serving under another Government to request that Government to suspend him. (emphasis supplied). It does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. The language used in sub-rr. ( 4) to (7) also suggests that these rules do not authorise order of suspension of the de· linquei'lt member o.f the Service merely because disciplinary pro- G ceedings against him are contemplated. Suspension under those sub-rules may be ordered only either after conviction (deeming provision under sub-r. 4) or when criminal proceedings are actually in progress ( sub-r. 5) or when after the penalty imposed on him havinz been set aside, the disciplinary authority decides to hold further enquiry (deeming provision under sub-r. 6). Clause (b) H of sub-r. (7) similarly provides for continuation of order of suspension. if anv other disciplinary pr~ceeding is commenced against the delinquent member of the service. durin11: the continuance 0f the earlier suspension-actual or deemed. The legis-·

¶225

[1972] 2 S.C.R.

¶226

SUPREME COURT REPORTS

¶227

710

¶228

¶229

lative scheme underlying r. 3 is thus clearly indicative of the intention of the rule making authority to restrict its operation only fo those cases in which the Government concerned is possessed _of sufficient material whether after preliminary investigation or otherwise and 'the disciplinary proceedings have in fact commenced and not merely when they are contemplated An order of suspension before the actual initiation or commencement of disciplinary proceedings .appears to us, therefore, to be clearly outside the ambit of r. 3 and we find no cogent ground for straining the plain language of r. 3 (1) so as to exv~nd it to cases in which discipli_l)ary proceedings are merely contemplated and not actually initiated or commenced. It is no doubt 1rue 'that this Court (G. K. Mitter and A. N. Ray JJ) has in Govemmem of India, Ministry of Home Affairs & Ors. v. Tarak Nath Ghu5/1(¹ ) expressed the view that under r. 7 (1 ) of the All India Services (D & AJ Rules, 1955 (replaced in 1969 by r. 3 (I) with which we are concerned) the Government is entitled to place an officer under suspension even bdore definite charges are communicated to him when preliminary investigation has be.en made into his conduct following allegations of corrupt or malpractice levelled against him. In support of this view, reliance in that decision was placed on S. Govinda Menon v. Union of India('), an ~arlier decision by a bench of two Judges. AHer referring 'to the facts and the decision in S. Govinda Menon's case (supra) it was observed in the case of Tarak Nath Ghosh's case (supra) as follows:

¶230

"It was urged before us that th.e order of suspension there was different from the one before us. While there is no doubt •that the order against th·~ appellant in the above cas.e was far more detailed both wi'tli regard to the nature of the charges and to the necessity of placing him under suspension, in substance there is little difference for the purpose of r. 7 of the Service Rules. The ord.er in this case dated 3 ls1 July, 1964 shows that serious allegations of corruption and malpractices had been made against the respondent and he was also· reported to have contravened 'the provisions of the All India Service Conduct Rules and enquiries made by the Government of Bihar into 1he alle.2atiorn had rev>~aled that there was a prima facie case made out against him Merely because the order mentioned that disciplinary proceedings were contemplated against the respondent, as compared to Rule 7 which con1ains phrases lik•3 'the initiation of disciplinary proceedings' and the 'starting of such proceedings' we cannot hold 'that the situation in the present case had not reached a stag(! which called

(2) [1967] 2 S.C.R. 566.

¶240

P. R. NAYAK v. UNION (Dua, J.)

¶241

711

¶242

A for an order of suspemion. In substance disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of 1ho~ Government that a prima facie case has been made out against him B for the framing of charges. When the order of suspension itself shows that Government was of the view tha't such a prima facie ca»~ for departmental proceedings has been made out the fact that the order ·also me1i"tions that such proceedings \Wre contempJaied makes no difference. Again 'the fact that in other rules of service an order of suspension may be made when 'disciplic nary proceedings were contemplated' should not ~~d us to take the view that a member of an All India Service should be dealt with differently. The reputation of an officer is equally valuable no matter whether he belongs to 'the All India Services or to one of tbe humble cadre. It is th.e exigency of the conditions of service· which D requires or calls for an order of suspension and there can be no difference in regard to this matter as between a member of an All India Service and a member of a State Service or a Railway Service."

¶243

The Court in Tarak Nath Ghosh's case (supra) considered E the dictionary meaning of the word ··suspension' and what is said in art. 389, vol. 25 of Halsbury's Laws of England at p. 589, namely, that in the absence of an express or implied term to the contrary the master cannot punish a servant for alleged misconduct by suspending him from employment and stopping his wages for the period of suspension. But this meaning was F considered to be applicable only when suspension is resorted to by way of punishment. Rule 7 in ihat case, on the other h:and, merely provided for suspension of a Government servant for the purpose of disciplinary proceedings and could, therefore, in the opinion of 1he Com't, be invoked when serious allegations of misconduct are imputed. In the case of S. Govinda Menon (supra) the argument raised both in the High Court . ·and in G this Court was that till charges are framed under r. 5(2) of All India Services (D & A) Rules, 1955 r. 7 could not be utilised for suspension b~cause the word 'charges' as used in r. 7 (1) must be unders(ood to mean definite charge or charges framed ·under r. 5 (2). This contention was repelled by this Court with the following observations : ·

¶244

¶245

"It was pointed out that definite charges were framed on Jun£ 6. 1963 and the Government had no authority

¶246

[l972] 2_ S.C.R.

¶247

SUPREME COURT REPORTS

¶248

712

¶249

¶250

to suspend the appellant bdore the date of framing charges. Reference was made to Rule 5 (2) which states :

¶251

'5(2) The grounds on which it'is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of th~ Service charged together wrth a statement of the allegations on which each charge is based and of an}' other circumstances which it is proposed to take into consideration in passing-orders on the case.'

¶252

It was argued by the appellant that the word 'charges' which occurs in Rule 5 ( 2) and Rule 7 should be given the same meaning and no order of suspension could be passed under Rule 7 before the charges are framed under Rule 5 (2) against the appellant. We do not think there is any .substance in this argumen1. Rule 5 ( 2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or char.ges. Under rule 5 (3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under Rule 5 (2) is necessary 10 enable the member of Service t9. meet the case against him. The language of rule 7 (I) is however different and that rule provides that the Government may place a member of the Service under suspension 'having regard to the nature of the charge/ charges and the circumstances in any case' if the Government is satisfied tha1 it is necessary to place him under susne.nsion. In view of the difference of language in Rule 5(2) and Rule 7 we are of the opinion that the word 'charges' in ru1·~ 7 (1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject 1he argument of th.e appellant on this aspect of ~he case.''

¶253

It is, however, noteworthy that in that case this Court had a l~ttle earlier come ·to a positive finding that disciplinary proceedings had been ac1uallv initia•ed against the appellant. This is what the Court said :

¶254

"A perusal of the order of the Government. Ex. P~I. would iiself indicate that disciplinary proceedings had ~_en initiated ag,ainst the appellant .. Exhibit P-1 reads as follows :

'The Government have received severa 1 peiitions containing serious alleg8tions of official misconduct

¶263

P. R. NAYAK v. UNION (Duu, J.)

¶264

713

¶265

¶266

A a)(ainst Shri S. Govinda Menon, l.A.S. First .Member, Board of Revenue, and form~rly Commissioner, Hindu Religious and Charitable Endowments lAdministration). Preliminary enquiries caused to be conducted into the allegartions have shown prima facie, that 1he officer is guilty of corruption, nepotism and other irregularities of B a grave nature; The Kerala tligh Court had also occasion to comment on the conduct of the officer .in their judgment in O.P. 2306/ 62 delivered on 12'th February, 1963. The judgment begius with 'the observation that 'thi§ case, if it has served little else, has served to expose a disquieting state of affairs regardin11, the disposal of valuable forest lands belonging 1o a religious c institution known as the Sree Pulapally Devaswom of which I trust due notice will be taken by the competent authority in the interests of fae public administration and 'the preservation of our forest wealth no less than in the interests of this particular institutfon.'

¶267

¶268

The judgment in the above case and the preliminary report of the X-Branch police have disclosed the following grave charges of serious irregularity and official misconduct on th>~ part of ·the accused officer.

¶269

The detailed enquiry into the charges by the X- Branch is in progress. The evidence in the case has to E be collected from a large numl:l'~r of officers who are subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the in1erest of the proper conduct of the enquirv it is ne<''«ary that the officer should not be allowed to continue in that past. Having regard to 'the na·ture of the charges against the F officer and the circumstances the proper course would be to place hir.1 under suspension. Shri S. Govinda Menon, l.A.S. First Member. Board of Revenue, is therefore filaced under suspension under Rule 7 of the All India Service (Discipline and Appeal) Rules. 1955 till the disciplinary proceedings initiated against him are completed.' G

¶270

¶271

A perusal of this document shows that the Government had accepted the prQceedings ·taken in the matter up till that date and had decided to go forward with the disciplinarv proceedings. In our opinion, 'there is no formal order necessary to initiate disciplinary proceedll ings under Rule 4 (1) of the Rules and the order of the State Government under Ex. P-1 must be deemed to be an order under Rule 4 (1) of the Rules initiating disciplinary proceedinl!;s."

¶272

[1972] 2 S.C.R.

¶273

SUPREME COURT REPORTS

¶274

714

¶275

In S. Govinda Menon's case (supra), therefore, the order of suspension wa~ held also to be the order initiating the disciplinary proceedings.,,_ No question was raised in that case about the legality of the composite order both initiating disciplinary proceedings and suspending Govinda Menon. But be that as it may, we find ourselves with all respect unable to agree with the view taken in Tarak·Nuth Ghosh's case (supra).

¶276

There is no gainsaying that there is no inherent power of suspension p05tulated by the Fundamental Rules or any other rule governing ~ appellaD't's conditions of service. Except for r. 3 of the A.I.S. (D & A) Rules, 1969 no other rule nor any inherent power authorising the impugned order of suspension was relied Upon in this Court in its support. Therefore, if r. 3, which is the only rule on which the appellant's suspension pending disciplinary proceedin,.gs can be founded, does not ,postulate an order of suspensiQn before th,e in~tiation of disciplinary proceedings and the Government initiating such proceedings can only place under suspension the member of the Service against who such proceedings are started, then, the impugned order of suspension which in clearest words merely states that disciplinary proceedings agains't the appellant are contemplated, without suggesting actual initiation or starting of disciplinary proceedings, must be held to be outside this rule. The impugn•!d order of suspension, it may be pointed out, is not like an order of suspension which, without adversely affecting the rights and privileges of the suspended Government servant merely prohibits or restrains him from discharging his official duties or obligations. An order of that nature may perhaps be within the general inherent competence of an appointing authority when dealing with the Governmeni servant. The impugned order made under r. 3 of A.l.S. (D & A) Rules, 1959 on the other hand s,eriously affects some of the appellant's rights and privileges vesting in him under his conditions of service. To mentiQn some of the disabilities resulting from his suspension, he is illOt entitled to get his full salary during suspension, but is only to be paid subsistence allowance and in certain circumstances some other allowances : in order to be' entitled 110 the· subsistence allowance he is prohibited from engaging in anv other employment, business, profession or vocation ( vide r. 4) : the appellant is not permitted to retire during the period of suspension : indeed, the impugned order specifically prohibits the appellant ewn from leaving New Delhi during the period of suspension, without obtaining the, oryvious permission of the Central Government. The fact that these prejudicial consequences automatically flow from the impugned .order under the rules also lends support to our view that the clear and explicit language of r. 3 must not be so strained to the appellant's prejudice as to authorise an order of suspension on the mere ground that disciplinary proceedings

P.R. NAYAK v. UNION (Dua, J.)

¶286

715

¶287

A against him are contemplated. The precise words of r. 3 are UU· ambiguous and must be construed in their ordinary sense. The draftsman must be presumed to have used the clearest language to express the legislative intention. The meaning being plain, courts cannot scan its wisdom or policy.

¶288

In Tarak Nath Glwsh's case (supra) this Court's attention was also drawn to r. 12 of othe Central Civil Services (Classification, Control and Appeal) Rules, 1957 made by the Pre&ident under the Proviso to Art. 309 of the Constitution which in express terms provided for suspension of the Government servant cORc.:rned when, inter a/ia, "a disciplinary proceeding against .hiru is contemplated or is pending." This Court did not consider that rule to be of much assistance in construinir r. 7 of the A.I.S. (D & c A) Rules, 1955 which rules were held to constitute a complete code. In our view the difference in the language used in the rele• vant rules dealing with suspension in the two sets of ruloes, namely, C.C.S. (C.C. & A.) and A.I.S. (D & A) Rules may not be con· sidered to be wh9lly irrelevant and unhelpful for discovering the intention of the draftsman in adopting difforent phraseology while D dealing With othe same subject of suspension of Government servants of different categories, Rule 12(1) (a) and (b} of C.C.S. (C. C & A) Rules, 1957 is now replaced by r. 10(1 )(a) and (b) of C.C.S. (C. C & A) Rules, 1965 without any change in the languaire. Rule 12(l)(a) and (b) reads :

¶289

"12. Suspension.-( 1) The Appointing Authority or

¶290

.I any authority to wpich it is subordinate or any other authority empowered by the President in that behalf may place a Government servant under suspension-

¶291

( a) where a disciplinary proceeding against him is contemplated or is pending, or

¶292

¶293

(b) where a c:ase airainst him in respect of any criminal ofl'P,nce is under investigation or trial.

¶294

Just as the phraseology of r. 12 dealing with suspension in C.C.S. (C. C & A) Rules, 1957 has been retained in the corresponding rule bf 1965, the phraseology of r. 7(1)(a) and (b) dealing with G suspension during discip!ii:ary proceedings in A.1.S. (D & A) Rules, 1955 has similarly been retained in the corresponding r. 3(1)(a) and (b) of' 1969. This retention of different phraseoloJtV in bi:>th 'these sets of rules does not appear to us to be wholly unintentional : on the other hand it suggests consistency of pur· P,OSe and continuity of n:gulation, tending to reflect the different legislative intentions on the question of scope and effect of the ff rules dealine; with suspension in the two sets of rules. Coutl8 may legitimately-preSUll!e that the draftsman ftlll'l'ilit~ r. 3 0 )(a} and (b) of the 1969 tttl- ~fl ~tt illl, ws aware of. the exiS'!ence

¶295

;,J/..., ... .;), ......... l^{'L"''''J?O''R}

¶296

716

¶297

SUPREME COURT REPORTS

¶298

¶299

of different ph;-aseology used in the rules dealing wi'th suspension in C.C.S. (C. C. & A.) Rules, 1957 and i965. Similarly the draftsman framing the C.C.S. (C.C. & A) Rules can legitimately be fixed with the knowledge of the different language used in the relevant rule contained in A.LS. (D & A) Rules, 1955. If with this knowledge the dratsman stuck to the different phraseology in these respective rules, then, can the Court not fairly assume that 1he actual words used in the different sets of rules were purposely selected with the object of expressing the legislative intention in the clearest and most precise manner ? But independently of this consideration we think that the plain language of r. 3 (1) (a) and (b) which c9ncerns us does not authorise suspension when disciplinary proceedings have not been initia!ted but are only contemplated. Inci.Qentally, it may be pointed out that the Patna High Court, when dealing with Tarak Nath Ghosh's case(') also noticed r. 1706 (1 )(a) and (b) dealing with suspension of railway servants. A Guide 'tO Discipline and Appeal Rules) whch is in identical terms as r. 12(1) (a) and (b) of the <;.C.S. (C.C. & A) Rules, 1957. Needless •to add that we are also aware of another statutory rule [r. 40 (1 )(a) and (b) l of Railway Protection Force Rules, 1959 made by the Central Government under s. 21 of the Railway Protection Force Act, 1957 (23 of 1957) which provides for suspension of a member of the force "(a) wlNre an investigation into charges against him is contemplated or pendinj! or (b) where fl case against him in respect of any criminal offence is under investigation or trial." The existence of such rules only serves to further fortify our opinion alrady expressed on the plain language ued in r. 3(l)(a) and (b) which is by no means obscure Qr ambiguous. The different phraseology, in our view. is -Oesignedly used to express different legislative intention.

¶300

We have a,lready said that on the view that we take it is unnecessary to consider the other points raised on behalf of the appellant. We may only add •that 1he contention of the learned Attorney General that the appellant should be held to be estopped from urging that the date of his retirement could nO't be postponed beyond November 25, 1970 as h.e had expressly agreed •to the extension of that date upto March 25, 1971 also need not be considered py us.

In the final result this appeal must succeed and allowing the same we. allow the writ petition and quash the suspension order In tne circums'!ances of this case there would be no order as to costs.

¶308

Ray, J. This appeal is by certificate from the judgment dated 6 May, 1971 of the High Court of Delhi dismissing the appellant's application ooder Article 226 of the Constitution.

¶309

¶310

(I) r.L.R. (1966) 45 Patna 749 at 755.

¶311

P. I. N~YAK v. UNION (Ray,./.)

¶312

717

¶313

¶314

A The appellant asked for a writ, .order, direction in the nature of. mandamus quashing the order of suspensiQll dated 23 March, 1971 and a tleclaration that the appellant retired from service Oin 25, Man:h, 1971 and further declaring the appelhjnt as immune against any action by the Governmell't and for fu.rther writs, orders, directions directing the respondent not to act in any miinner under B or in furtherance of the order of suspension dated 23 March, 1971 and for a further declaration that Funda1nemal Rule 56(ff) is void and ultra vires.

¶315

The appellant joined the Indain Civil Service on 24 November, 1935. In 1960 the appellant became the Managing Director of c Indian Refineries Ltd. In the month of October, 1963 the appellant was the Chairman and Managing Director of the Indian Refineries Ltd. In the month of January, 1965 the appellaint bl)came Secretary in the Ministry of Petroleum and Chemicals. On 22 February, 1969 the appellant became Secretary, Ministry of Works, Housing and Urba\11 Development.

¶316

¶317

The appellant after joining the Indian Civil Service arrived in India on 25 November, l CJ35 alld was to complete 35 years of service on 24 November, 1970. The completiQn of 35 years of se-rvice was under the r,ules the date of retirement of members of E Indian Civil Service. On 23 November, 1970 the Central Government made an order extending the service of the appellamt up to 25 March, 1971. On 23 March, 1971 there was an order of the Central Government suspeilding the appellant. This order was cWlkinged in the application in the High Court.

¶318

¶319

F 'Fhe facts preceding the order of. suspetiion are as follows. In 'the month of August, 1968 an enquiry into certain matter!I c0nneeted with the laying down of the Haldi<i-Barauni pipeline through the coal fields of West Bcnal was entrusted to Shri N. S. Rao, central Yigilance Commissioner. The appellant on 20 An gust. 1968 wrote to Shri Rao that though the latter would lay G down his ollice on 23 August, 1968 he had oft'ered to contillliue and complete the report of the enquiry in an honorary capacity and that the Government accept,d the offer of Shrl Rao with thanks. The letter was sent by the appellaint after obtaining the prior approval of the Minister of Petroleum. On 21 August, 1968 Shri N. S. Rao wrote a letter to the appellant that he would complete the work in H his individual capacity even after he had laid down his office as Central Vigilance Commissioner if the Government wanted him to do .so. Shri Rao. therefore, suggested that it would be better for l5-L643Su;CT/72

¶320

[1972] 2 S.C.R.

¶321

71S

¶322

SUPREME COUllT REPORTS

¶323

¶324

the Government to say that he agreed to the Govemment request to complete the work. On 23 August, 1968 the appellant wIQte to Shri Rao confirming that the appeli3411 was in agreement with the position as explained by Shri Rao. It may be stated here that with the exceptiOlll of the first letter the entire correspondence between the appellant and Shri Rao did not bear any stamp of approval of the Minister. On 16 April, 1970 Shri N. S. Rao made a report and he did not give any finding adverse to the appellant.

¶325

Meanwhile the Parliamentary Committee on Public Undertakings had examined the Pipeline Division of the Indian Oil Corporation and submitted its report to Parliament on 30 April, 1970. The Committee found first that the appellant who was at the material time the Mainaging Director of the Indian Refineries Ltd. showed more concern for the contractor Bechtel's interest than for the Haldia-Barauni-Kanpur pipeline project. Bechtel Corporation was an American firm of Consulta.nts who were supervising the project. 1he second finding; was that the appellant was acting, on his own in his dealing with the co,nstruction contractors as well as the American consultants supervising the project in vital matters concerning the capacity of the pipelines, thus by-passing the authority of the Board oi Directors and Government. The third finding was that in several instances the appellaint had exceeded his auth'Jrity available to him.

¶326

Consequent on the report of the Parliamentary Committee on l'ublic Undertakings the Government of tndia decided to set up a one-man commission under the Commission of Inquiry Act, 1952 headed by Shri J. N. Takru, a retired Judge of the Allahabad High Court. The terms of reference were set out in the rcsolutio,n dated 22 August, 1970 setting up the commission. Broadly stated, the terms of reference included whether any payment to Bechtel was made in excess of the amount sanctioned by the Gover1nment; whether the induction of Bechtel into the project was ma/afide; whether Bechtel was shown undue favour, whether the appellant acted on his own by-passing the Board oi Directors in his dealings with Snam and Bechtel in vital matters concerning the capacity of the Haldia-Barauni-Kanpur pipeline; whether the General Manager aind the Managing Director of the Indian Refineries Ltd. were perfunctory and casual in dealing with an important communication dated 26 September. 1963 from Bechtels to Indian Refineries Ltd. mentioning the' design capacity of Haldia-Barauni pipeline; and also to determine whether there was loss to the public interest; whether there was any carelessness and negligence in discharge of responsibilities by Government a;nd the officials. The resolution of the Government app0inting the Commission stated that the Commission was to submit its report within a period of six months.

•

P.R •. !llAYAK v. UNION (Ray, J.)

¶335

719

¶336

¶337

A hi the month of October, 1970 the Government of India in the Ministry of Petrokum and Chemicals referred the matter to the Takru Commission for advice on ( 1) whether, and if so what, prima facie dtarges might be made against the appellant in connection with the report of the Parliamentary Committee on Public Undertakings; and ( 2) whether any other officer appeared to be • involved in any of the charges which might be found as prima facie estabilished. Prior- to the communication by the Governme:nt of India on 17 October, 1970 to Shri J. N. Takru the Government had on 26 September, 1970 given a copy of the charge-sheet comprising 9 charges drawn up against the appellant by the Ministry of Petroleum and Chemicals. On 7 November, 1970 the Government of India intimated to Shri Takru that his task. was not limited c to an examinati<J\11 of the charges handed over to him by the Government on 26 September, 1970 but he was also to suggest to Government whether as a result of the examination of the report any other charge or charges appeared to be prima facie made out for departmental action against the appellant. The original time fixed for tendering the report was the middle of the month of B February, 1971 but sulbsequntly the time was advanced to the middle of the month of J anuairy, 1971. Thereafter the Takru Commission embarked upon an enquiry into the charges against the appellimt. The charges were sent to the appellant on 16 November, 1970 and he was given time till 30. November, 1970 to submit his defence. The time was extended till 7 December, 1970. · The appellant su1:'111tted ·a written statement in defence to those charges. By a Jetter dated 7 December. 1970 the appellant submitted a detailed explanation and .replies to the Memorandum of charges served on him by the Takru Commission. By another letter -Oated 19/21 December, 1970 the appellant gave· his supplementary replies to some of the allegations and again on 5 January, 1971 submitted to Shri Takru anotlir representation. The appellant was heard in persQn on 4 Januaiy. 1971.

¶338

On 13 January, 1971 Shri Takru submitted an interim report lo the Government recon:ling his fiudim:gs on the question as to G whether there was any prima facie case agamst t,he appellant for a departmental enquiry into 14 charges framed against him. In the report Shri Takru came to the conclusion that barring Part ( d) of Charge III and Charge XIII, all the remaining charges against the appe11ant were prima facie established.

¶339

On 23 Mar-ch, 1971 the Government of India passed an order H of guspension. The ord1~r is set out hereunder :

¶340

"Whereas disciplinary proceedings against Shri P. R. Nayak, JCS are contemplated;

¶341

[1972} 2 S.C.R.

¶342

SUPREME COUllT llErotlTS

¶343

720

¶344

AND· WHEREAS the President, aftc;r carefully considering the available material, and hailing regard to the nature of the charges against him and the circumstances of the case, is satisfied that it is necessary and desirable to place the said Shri P. R. Nayak under suspension;

¶345

NOW THEREFORE, the President in exercise of the powers conferred bY clause (a) ol sub-rule ( 1) of rule 3 of the All India Services (Di$cipline and Appeal) Rules, 1969 and all other powers enabling him iJll that behalf hereby place the said Shri P.· R. Nayak under suspension with immediate effect until further orders;

¶346

It is further ordered that during the period that this Ordc;1r shall remain in force, the said Shri P. R. Nayak shal! be paid such subsistence allowance as is admissible. under the rules and his headquarters shall be New Delhi which he shall not leave w_ithout obtai;xiing the previous permission of the Central Govemment.

•

By order and in the name of the President

¶351

Sd/- B. B. Lal

¶352

¶353

Secretary (o the Government of India".

¶354

The appellant filed an application under Article 226 of e Constitution in the Delhi High Court on 24 March, 1971. The appellant filed an amended petition on 30 March, 1971. The appellant prayed for a writ quashing the order of suspension and a declarat'iOn that the -appellant retired from servicp on 25 March, 1971 and a further declaration that the appellant is immune thereafter against any actiQn taken by the Government as there is no authority therefor under the applicable rules. The further reliefs that the appellant prayed for were to ,give the appellant full benefits of retirement from service available under the covenants and the Rules as guaranteed by Art\cle 314. The appellnt also prayed for a declaration that Fundamental Rule 56(ff) is void and ultra vires the Constitution.

¶355

In the petition the appellant made these allegations. The appellant is a;ll officer of the Indian Civil Service and is 'at present working as Secretary to the Government of India, Ministry ol Works, Housing and Urban Development'. According to Fundamental Rule 56(ff) the date of compulsory retirement of.the appellant from the Indian Civil Service was 24 November, 1970. The appellant agreed to accept an extension of service by four months from 25 November, 1970. According to the order dated 23 November, 1970 the appellant is to retire from. service on 25 March, 1971. The appellant offered to the Qove!lnment of India to continue him in service for a further period ·till after the receipt of the ·report of the Commission of Inquiry set up by the Government of

P. R, NAYAK V. UNION (Ray,].)

¶361

721

¶362

A Indra. The offer of the appeHant was not accepted. On the contrary, the order of suspension dated 23 Mareh, 1971 was served on the appellant.

¶363

On these allegations the appellant raised these contentions in the petition. First, the Government acted under Fundamental Rule 56(ff) and there was no order of suspension in existence on B the date of compulsory retirement of the appellant. A member of the Indian Civil Service cannot be proceeded against in any disciplinary proceeding after the date of his compulsory retirement from service. Second, the order of suspension passed after the expiry of the date of compulsory retirement cannot prevent the appellant from retiring on 25 March, 1971. The order of suspension is c repugnant to law, Third no disciplinary proceedings namely, inquiry had been initiated against the appellant. The order of suspension from service can be passed only in terms of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969. The provisions of Rule 3 ( 1) (a) contemplate suspension of an officer against whom Government initiates any disciplinary proceedings. The D order oJ' suspension merely stated that proceedings are contemplated. Therefore, the order is bad. Fourth, Fundamental Rule 56(ff) is discriminatory in character and violative of Article 14 of the Constitution.

¶364

The High Court held that an officer of the Indian Civil Services could with· the sanction of the President be allowed to contnue to E retain the post he was holding at the date of compulsory retirement for the maximum period of 5 years. As to the order of suspension the High Court relying on the decisions of this Court whih will be dealt with hereafter held that an order of suspension could be passed even before definite charges were communicated. The appellant's contention that Fundamental Rule 56(ff) which permitted an officer under suspensio1n from retiring violated Atticle 14 F was not accepted by the High Court.

¶365

The appeUant in this Court repeated the submissions advanced in the High Court and raised additional contentions which were neither founded in the petition nor argued in the High Court. These additional contentions were first, that the date of compulsory G retirement of the appellant was fixed under Fundamental Rule 56(f) and therefore there could not be an extension of service beyond the date of compulsory retirement. Second, assuming there was an extension there was in fact no order of extension of service for 5 years in accordance with the provisions of Fundamental Rule 56(f). Third, the Government placed the appellant under suspension by an order dated 23 March, 1971. The order H o.f suspension is bad inasmuch as there was no order under Fundamental Rule 56 (ff) retaining the appeJlant in service while making the order of suspension.

(1972J 2 S.C.R.

722

SUPREME C:OU&T ltEPORTS.

¶370

These new contentions do not appear ill the pleadings. Those contentiQlls were JlOt raised in the High Court. Ordinarily, this Court does not allow a party to canvass points. which are not mentioned in the pleadings or in the judgment. The reasons behhnd <this practice are two•fold. First, the opposite party is deprived of meeting such a case in the pleadings. Secondly, this Court is deprived of the benefit of a considered judgment of the High Court. ;In view of the fact that the appellant was allowed eo make his submissions these will have to be considered.

¶371

Broadly stated, four questions fall for consideration.. First, .can the.re be an extension of service of an officer of the· Indian Civil :Sen'ice beyond the date of compulsory retirement ? Second, if there is an extension of service does such an extension of service under Fundamental Rule 56(f) have to be for a period of five years. Third, could there be an order of suspension in the facts and circumstances of the case unoer Rule 3 of the All India Services (Discipline . 8illd A~) Rules, 1969 when disciplinary proceedings had not been initiated and did not commence. Fourth, is any order of retention in service necessary within the meaning of Fundamental Rule 56(ff) at the time of passing of the order of suspension ?

¶372

The appellaait's contention on the first question a& ta whether there could be an extension of service beyond the date of compulsory retirement were these. First the date of compulsory retirement is a fixed and irrevocable date which cannot be changed. The compulsory retirement of the appe.llant was fixed under Fundamental Rule 56(f) to be 35 years from the date of his arrival in India. He arrived in India on 25 November, 1935. Therefore, <there could not be an exteµsion of service beyqn:d the date of .®mpulsory retirement_µnder Fundamental Rule 56(f). Secondly, MSuming there could ~ an order of extension under the proviso 1o Fundamental Rule 56(f) there was in fact no order under the proviso. It was said that Fundamental Rule 56(0 consists of two SOJ>lll'ate parts. 1be first pan speaks of the date of compulsory ·retJrement. The proviso· which is the secQlld and · indepertdent part · · speaks of extension of servicll sanctioning retention of post for five years.

¶373

The order dated 23 November, 1970 was as follows:"The President is pleased to order under the proviso to F.R. 56(f) that the services of Shri P. R. Nayak, a member of .the Indian Civil Service, who completed 35 years of service on the 25th November, 1970 shall be extended upto the 25th March, 1971 ".

¶374

In order to appreciate the appellant's contentions it is necessary t.o refer to Fundamental llule 56(f). Fundamental Rule 56(f) in the·pro.9Cntfonn.came into.force with effect from 21 July.

•

I::

P. R. NAYAK V. UNION (Rliy, J.)

¶382

A 1965. The previous corresponding Rule was Fundamental Rule 56(c) which came inlo force QD. 1 Jao,uary, 1922. ;prior to 19.2 Article 565 of lhe Civil Service Regulations .was the ielevant i:egu• Jation. Article 565 (a) stated that 'after 35 )'.c;im;' sc;ryi.ce,coun.g from the date of his arrival in India, an officer shall qot, except for special ,reasons, and wi'th tf\e siJl.Cti<m of the Secretary of State ii retain his office or be appointed to any new office; provided th11t, ii such .an officer has .held his office for less than Jive ye;trs,. ·.i\e may, for special .reasons, with .the sainctioned of the po.vernment of :India, .be permitted to .rc;tain his office until he has ·held it for five ;years. Article 565 of the Civil Service Regqlations ;was red by Fimdamental Rules on l fal\U!lfY, 1922. F:um,1a .:;1~~ Rules 56(c) (i) ~hich came in place of Article 565 was

¶383

¶384

¶385

"A member of the Indian Civil Service, J1Vho is not a judge of a Chief Court, must retire after 35 years' service counted from the .date of his arrival in India provided that if he ·has held his post for less than .five years, he may, with the sanction of the Gq\l,efl!OfGeneral in Council be. pennitted to retain it 4ntil :he has held it for that period".

¶386

The present Fundamental Rule 56(f) was ii;itrodqced in 1965 in plaoe of ·the .previous Fundamental Rule 56.(c)(i), Fundamental Rnle 56 (f) is as follows :-

¶387

",ff). A ,m.em~r of the Indian Civil Servi.c;e ,,qa!I .retire after thirty-five yc;ars' service <:Ol!IDtcd from the date.of his arrival in India;

¶388

provided .!hat .if ·he has at tl)e e~d .Qi. ·~YiiXC .years' held his po&t for less tiµln ·fixe YC<jlrS, :J\e '.pill.)', ,with the sanction of .the President, Qe ·penl!,i~ :I!> i;etain his ·pDSt iJntil ,he has held ·it fQr five .)'.C;l!S".

¶389

iFbe contentiop on behalf of the appe\l;mt 11µ\t Jl .mCIJlber .of. '.f.lie ;Indian Civil Service on. COJillpletioti of -35 y<:ars' sei;vi~ -fr:om the.date.of his arrixal in India retires compulsorily !jlld ·thel;e ,Cll!l- _9_ P.Qt>be any extension of service is opposed to .Ille langµage of. tf'UJ1dilmcntal Rule 56(f) itself. and is utterly inconsistqnt ·with ·the .jlfactice .and procedure of ,exil!llncies of service on -whictll ;F:undamcmtal ,Ruje .S6(f) .is ba&ed. Uistorically Civil .sc;i:vii;e l\lt;gi>};ltiqn -565 (.a), ·F~~l ,R.qje ·( c)( i) ~ :the :Pllt 'Iiundl!mel .Rule S6(f) all iIJdjcate thl\t a.member .of _!hjil l\t:1.d.i;u1 ;H .Civil.Servi'<.C·m.ay !ifl'YC !Ul·CXtemsion of service:Qe):oqd theJ{ate.qf .c<pqlsqry ,rtiiement. tUndr ,I::~~l;ll JV,µ!e 56(£) ;i t,of ttbi 1lndiqn ,Cixil.ice ma.y·wi1!1 the sll.\iop.Qf·\lle1P .Jteirt b.e 1NtmiU¢ ,to retain. his ,post.

¶390

[1972] 2 S.C.R.

¶391

SUPREME COURT REPORTS

¶392

724

¶393

¶394

Sanction of retention of post at the end of thirty-five years which is mentioned in Fandamental Rule 56(f) contains intrinsic authority for extension of service. The extension of service at the end of thirty-five years' service is inherent in Fundamental Rule 56(f). The appellant could 1110t show any rule or authority other than Fundamental Rule 56(f) for extension of service after thirty-five years' service. The order of the appeilant's extension of service is not a case of new employment after retirement. Nor is it a case of fresh contract of service. Any valid contract of employment after the date of compulsory retirement is to be in compliance with Article 299 of the Constitution. That is neither the case nor the rule. It is a simple case of extension of service under Fundamental Rule 56(f). There is no authority for saying that at the end of 35 years' service compulsory retiremont has happened and is complete and there can be no extension of service. It is incomprehensible as to how one can be permitted t.o retain the post one was holding at the end of 35 years' service if one has already retired 'compulsorily' at the end of 35 years' service.

¶395

It was said on !:¢half of the appellant that Fundamental Rule 56(f) consists of two separate and independent part~ with the result that under the first part a member of the Lr.dian Civil Service retired after 35 years of service and the proviso according to fhe appellant was the second and independent part which dealt with sanction of the President pennitt~ng the officer to retain his post for five years. The proviso cannot be truncated as a separate part of Fundamental Rule 56(f). The proviso and the preceding part hang together. Fundamontal Rule 56(f) is to be read in its entirety as an integrated whole. The proviso to Fundamental Rule 56(f) speaks of end of thirty-five years. Thirty-five years' service is the subject matter of the entire Fundamental Rule 56(f).

¶396

Fundamental Rule 56(f) means this. The Government has the right to retire a member of the Indian Civil Service at the end of 35 years' service. A member of the Indian Civil Service has also the right to retire after 35 years' service. The Government however has the right to retain an officer after 35 years' service. The date of retirement is then extended. There is in fact no retirement of the officer from service. He still remains a member of the Indian Civil Service. The appellant's contentioo that the date of retirement is irrevocably fixed is reading new content to Fundamental Rule 56(f). It is correct that the date of retirement is 35 years from the date of arrival in India of a member of .the Indian Civil Service. The Government in certain cases may permit an officer to retain his post beyond that date. In those cases in spite of the stated date of retirement it does not

P. R. NAYAK V. UNION (Ray, J.)

¶405

725

¶406

A take place. It was said on behalf of the appellant that there is no provision for postponing the date of retirement. What is postponed is retirement and not the date. That is because after the date of retirement an officer is permitted to retain his post. The two parts of Fundamental Rule 56(f) namely the first part and the proviso draw sustenance from each other. The two are B indissolubly connected. If the two are separated as independent provisions their meaning is lost and their applicability becomes impossibile.

¶407

It was said on behalf of the appellant that the service of an officer after the date of retirement is not on a par with service before that date. This was ·illustrated first with reference to c entitlement to leave under Fundamental Rule g6 not being the same, secondly, lapse of leave on the date of retirement, and, thirdly, that an officer after the date of retirement could not .have any promotion and therefore it would not be a continuous employment because the conditions of service would not be the same. There cannot be any question of promotion of an officer who is D retained in a post after 35 years' service. Nor can it be said that lapse of leave or entitlement to leave will rob the officer of an extension of service. The extension of service or sanction permitting an officer to retain his post at the end of 35 years is a special feature in the rule. It is not that an officer at that stage will have to look forward to promotion. As for leave whatever E the leave rules will permit he will' be entitled to. Fundamental Rule- 86 speaks of leave in relation to the period before the date ol retirement and the period of being retained in service after the date of retirement.

¶408

It cannot be said that the extension of service of the appellant was a new appointment or. a special contract apart from Funiiamental Rule 56(f). The appellant remained a member of the service. That is the allegation of the appellant in the petition. The appellant enjoyed the benefits of service. The appellant himself asked for extension. The Government is right in the contention that the appellant is estopped from challenging the extension. Qn behalf of the appellant it was said thal the appelG lant's agreement to extension would not estop him from questioning the order ijecaus~: the Government did not indicate in what regard it acted to its disadvantage and further that the Government could not have suspended the appellant in the month of November, 1970 because the Government had no evidence at that time. The appellant agreed to and took advantage of the extension. The Government acted upon that. The affidavit evidence H on behalf of the-Government is that the appellant wrote a letter on 3 November, 1970 fo the then Cabinet Secretary stating that the appellant was wllling to accept an extension of servtce for

¶409

(1972] 2 S.C.R.

¶410

SUPREME COURT REPORTS

¶411

72~

¶412

about fow months from 25 November, 1970. The Government decided to grant such an extension. The order of the Government dated 23 November, 1970 is alleged in the affidavit to be made pursuant to the letter datea 3 'November, 1970. The appellant cannot be allowed to approbate and reprobate.

¶413

The extension. was asked for by the appellant to facilitate the enquiry by Shri Takru. The appellant in his letter stated there were allegations against him in respect of which he had not an opportunity of having a say. The appellant wanted an opportunity to explain his point of view and wanted an extension to facilitate such cause. The appellant having invited the Government to grant an extension cannot be permitted to turn around and say that the extension is bad. The appellant has furthermore not questioned the extension in the petition. On the contrary, the appellant has proceeded on the basis of extension and asked for a declaration that the appellant retires from service on 25 March, 1971. The Attorney General made it quite clear that the estoppel which the Government wanted to raise against the appellant was only with regard to Fundamental Rules 56(f) and 56(ff). The estoppel rightly raised against the appeUant in regard to Fundamental Rules 56(f) and 56(11') is that the order of suspension was passed at a time when the appellant was in service as a result of. being permitted by the Presidont to be retained in service for a period of four months pursuant to the appellant's agreement to an extension.

¶414

The contention on behalf of the appellant is that under Fundamental Rule 56(11') an officer who is lli!lder suspension on a charge of misconduct shall not be required or permitted to retire oa reaching the date of compulsory retirement and inasmuch as ·the date of retirement of the appellant expired on 25 November, 1970 the order of suspension dated 23 March, 1971 could not be passed under Fundamental Rule 56(11'). Fundamental Rule 56(ff) is as follows :-

¶415

"Notwithstanding anything contained in clauses (a), (d} and (f) where an officer who is a member of the Indian Administrative Service or the Indian Police Service and who before becoming such member was a member of the Indian Civil Service or the Indian Police, is under suspension on a charge of misconduct, he shall not be requin,:d or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service until the inquiry into the charge is concluded and a final order is passed thereon by the competent authority".

The submission on behalf of the appellant is that .Fundamental Rule 36(ff) can only be applicable before the date of compulsory

¶425

P.R. NAYAK V. UNION (Ray,/.)

¶426

121

¶427

A retirement. The words 'date of compulsory retirement' occurring, in Fu.ndamental Rule 56(11) are not used in any of the sub-rules in Fundamental Rule 56. The date of compulsory retirement relates to the end of 35 years of service from the date of arrival in India of an officer of the Indian Civil Service as mentioned in Fundamental Rule 56(f), It is only because in Fundamental

¶428

B Rule 56(f) it is said that a mem~r of the Indian Civil Service shall retire after 35 years of service counted from the date of his arrival in India that the words 'date of compulsory retirement' are used in Fundamental Rule 56 (II).

¶429

The question which therefore arises is whether the case of a member of the Indian Civil Service being permitted with the c sanction of the President to retain the post after 35 years of service can be brought within the scope of Fundamental Rule 56(11). When there is an extension of service as a. result of the sanction. by the President under Fundamental Rule 56(f) there is no retirement. The service is continuous with such adjustments as to leave or promotion or posting as are permissible· or possible. D To accede to the contention on behalf cf the appellant is to hold . that a member of the Indian Civil Service cannot be placed under sussion during the period of extension of service. The fa!lacy of the appellant's contention lies in not appreciating that the suspension is not unde:r Fundamental Rule 56(11). Fundamental Rule 56(11) is the consequence of an order of suspension. It will be illogical to hold that a member of the Indian Civil Service E will before not be permitted the date of compulsory retirement whereas a member to retire because the order of suspension of is . the Indian Civil Service who is on exteosion of service can be permitted to retire even when an order of SUSR!lllsion has beerr passed. This is on the assumption that the or<ler of suspension is otherwise valid. The authority and power of the Government F to suspend the appellant in the present case will be dealt with hereinafter. The date of compulsory retirement mentioned irr Fundamental Rule 56(ff} is· to receive a mea.ning in harmony "ith the various sub-rules of Fundamental Rule 56. On a reading of the entire rule it is apparent that when the date of compulsory retirement is allowed to pass b&' an extension of service the G words 'reaching the date of compulsory retirement' in Fundamental Rule 56(ff) will apply IP the postpon date of retirement because the actual date of retirement is shifted. A member of the Indian Civil Service receiving an extension has not in fact retired inasmuch as the Rules indicate that a member of the Indian CiviT Service has to resi811 and apply for annuity at retirement. A member of the Indian Civil Service does not cease to be a member H of the service during the peftod of extension of service. ThetC"" fore, Fundamental Rule 56(tf) will apply to a member of ~ Indian Civil Service during the period of extensioe of his semcfh

¶430

. ;.

¶431

(1972) 2 S.C.R.

¶432

SUPREME COURT REPORTS

¶433

728

¶434

The contention of the· Government is correct that the appellant is estopped from questioning the extension ot service asked for by him and sanctioned by the President. It, therefore, follows that if the order of suspension is validly passed during the period of .extension in service Fundamental Rule 56(ff) will apply. As to whether an order of retention of the appellant in service is required under Fundamental Rule 56(ff) during the period of suspension will be dealt with later on.

¶435

The second question is if there is an extension of service under Fundamental Rule 56(f) what will be the period for such extension. Fundamental Rule 56.(f) states in the proviso that if a member of ·the India.n Civil Service has. at the end of thirty-five years' held his post for less than five years, he may, with the ·sanctiOn of the President; be permitted to retain his post until he has ·held it for five years. The appellant became Secretary in the Ministry o{ Petroleum and Chemicals in the month of January, 1965. On 22 February, 1969 the appe!lant became Secretary, Ministry of Works, Housing and Urban Development. Therefore ·the contention of the appellant was that his extension should have been for a period of five years up to 21 February, 197 4 to enable bim · 'to retain that post'. With regard to the order passed on 23 November, 1970 whereby the services of the appellant were extended upto 25 March, 1971 it was said first that the order did not state as to what post the appellant held and secondly the order did :n'ot say that he was permitted to retain the post until be had held it for five years. It was thus contended that the ord~r was bad .

¶436

. Fundamental Rule 56(f) which speaks of retention of post with the sanction of the President is not a matter of right. As far as a member of the Indian Civil Service is concerned it is a matter of discretion with the Government as to who will be aJ!owed to retain his post and for what period. The immanent ·idea in Fundamental Rule. 56(f) is that in cases where a member of the Indian Civil' Service at the end of 35 years' service has held his post for less than five ~ars the Government may permit him to retain his post until he has held it for five years. The word 'post' means in effect office. Fundamental Rule 56(c)(i) which corresponded to Fundamentai Rule 56(f) .used the expression 'post' and Article 565 of the Civil Service Regulations which was in -existence prjor to the coming into force of Fundamental Rules in 1922 spoke of 'office'. Fundamental Rule 56(f) does not refer to a tenure post There are no cadres in the Centre. Each State bas cadre posts and for each State there are senior posts under the Central Government. The appe!Jant did not hold a tenure post. The services of the appellant were extended for four months with 1he result· that he was permitted to retain the post he was huldffi!!-

P. R, NAYAK v. UNION (Ray, J.)

¶446

¶447

In view of the fact that the<_ appellaii,\ was permitted by the President to retain his post the only question is as to the period for which he could be asked to retain his post. The Attorney General gave instances where members of the Indian Civil Service who on completion of 35 years' servia, were given extension.. All these instances illustrate that the period for which extension oi B service was granted ranged from 1 month. and 22 days to 1 year and six months. Thest~ instances further indicate that the total period for which these officers held the post inclusive of the perio4 for which extension was given ranged from 1 year and 11 months. to 4 years 10 months and 27 days. Shri G. S. Bajpai was appointed Secretary-General of Ministry of External Affairs, c Governinent of India on 27 January, 1947. He completed. 35 years' service on 24 November, 1950. He was.given an extension for one year and six months and held that post for 4 years 1 (} months and 27 days. Shri Vishnu Sahay who was appointed Cabinet Secretary, Government of India on 25 August, 1958 completed 35 year~' service on 6 ~ember, 1960. He was given, an extension for one year 4 monthS and 10 days with the result 0 that he retained the post oi Cabinj:t Secretary for 3 years 7 months. and 22 days. Shri G. R. Karnath who was appointed Secretary., Planning Commission, Government of India on 22 April, 1965 completed 35 years' service on 20 November, 1966. He was. given an extensioo. of serviceJor 7 montlis and 11 days with the. result that he retained the post for 2 years 2 months and 9 days .. £ Shri N. N. Wanchoo, who was al.>£?inted Secretary to the. Govern ment of India, Ministry of lndnstrial Development on 13 March. 1967 completed 35 years' service on 23 Noyember, 1969. He was given an extension of service for 1 month and 22 days with the result that he retainr-d that post for 2 years ,10 months. an!I 2 days. Shri B. Sivaraman who was appointed Cabinet Secreta\iy F on 1 January, 1969 completed 35 years' scrvi~ on 30 November; 1969. He was given an extension of service for 1 year wilh the result that he retained the. post for 1 year ·and 11 months. Shri B. B. Paymaster who was appointed Chief Secretary to the Gov' ernment of Maharashtra on 5 September, 1967 completed 35 years' service on 24 November, 1970. He was given an extensfotr G of service for 6 months with the result that he retained the post for 3 years 8 months and 20 days. The appellant who was appointed Secretary, Ministry of Works, l!9using and Urban Development on 22 February, 1969 completed 35 years' service on 25 November, 1970. He was given an extensioo of service for four mon,ths with the result that hei was permitted to retain - the post for 2 years I month and 4 d-ays.

¶448

¶449

The various instances of extension of service of the members. oi the lndian Civil Service on. which the Government relied indicate these features. First, 1!he order of extension is of the same·

¶450

[1972) 2 S.C.R.

¶451

730

¶452

llUPKEllE COURT REPORTS

¶453

¶454

iJatteni.. A typical example of the order of extension of service is to the effect that "the President is pleased to order under the proviso to Fundamental Rule 56(f) that the services of a member of the Indian Civil Service who completes 35 years' service on . . . . . . . . . . shall be exteinded for a period upto . . . . . . . .. . :· Therefore, the order does not indiCate that the person concerncJ .is mentioned with reference to a particutar post. Secondly, these instances further establish that the exteinsion of s~rvice is in no .case for. five years. On the contrary, the total period of service inclusive of the period of extension in no case exceeds fiv.: years. Therefore, it follows that under Fundamental Rule 56(f) the -extension C8111 in fact be for any period with the result that the total period inclusive of the extension does not exceed five years.

¶455

Article 56S(a) of ihe Civil Service Regulations spoke of 'office' and thereafter Fundamental Rule 56(c)(i) and Fundamental Rule 56(f) spoke of 'post'. The word 'post' and its previous counterpart the word· 'office' mean position in service. fa the Indian Adiniriistrative Service (Cadre) Rules, 1954 cadre post means any of the posts specified under ite~ 1 of each cadr~ in the Schedule to the Indian Administrative Service (Fixation of 'Cadre Strength) llegitlatiQDs, 1955. In the 1955 Regulations posts are mentmned for each' State. In the Centre there is n~l <eadre. There are senior. posts. The members of the Indian Civil Service come and occupy senior posts under the Govenunent of 1ndia. Such offi_cers of th.e. Indian Civil Service who come and -occupy posts in the Centrai Government move from one Ministry to another. Therefore, at the end of 35 years' service when the services of a member of the Indian Civil Service are extended normally he assumes ·or retains that post. Post here will therefore mean the place and position in service held by him. The words "retains his ,posr mean first that he remains a member of the Indian 'Civil Service, and secondly, he is kept i•n that place or position and is allowed to remain there in service.

¶456

The contention of the appellant that the appellant was entitled to an extension for five years. is against the terms of the rule<. ·ne extension can be for any time but it should not in any event allow a member of the Indian Civil Service to hold a post more than the period of 5 years inclusive of the period of extension. 'The appellant's contention will mean that every extension will be foi 5 years. That is against the term and spirit of the rule and against the practice and precedents in the service. Therefore. 1he second contention of the appellant fails.

The third contention of the appellant is that the order of sus:pension is :bad 'because ;no disciplinary proceedings by way of

¶464

P, R, NAYAK V. UNION (Ray, J.)

¶465

731

¶466

A inquiry were commenced prior to the order of suspension. Rule 3(I)(a) of the AIIJndia Services (Discipline and Appeal) Rules, 1969 is as follows :-

¶467

"3. SUSPENSION DURING DISCIPLINARY PROCEEDINGS :--(1) If, having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension lhe member of the Service against whom such proceedings are started, that Government may-

¶468

¶469

( a) if the member of the Service is serving under it, pass an order pj;lcing him under suspension".

¶470

¶471

The three features of the rule are these. The first is the auchority which places a member of the service under suspension. The second is the time when such order is made. The third is the person against whom the order is made. The authority under rule 3(l)(a) for placing a member under suspension is the GovD ernment which initiates any disciplinary proceedings. The words which initiates any disciplinary proceedings' are descriptive of the word 'Government'. The time when such an order is passed is when the Government is satisfied that it is necessary or desirable to .place under suspensk\Il the member of the servke. It is not that the ,Government can pass an order of suspension against anyE one. The person against whom an order can be made is a member of the service against whom such proceedings are started. Here again, the words 'against whom such proceedin~ are started' are descriptive of the words 'member of the service • There i.; no restriction on the power to suspend by making it dependent on the condition precedent of the commencement of inquiry into F articles of charge against the Government servant.

¶472

¶473

Counsel on behalf 0£ the appellant .contended that 1[ the Government would have power to place a mel)ber of the ervic under suspension in the absence of conunencement or initiation of disciplinary proceedings by inquiry the power would be a~bi trarily used by the Government against an officer who was for some reason or other not in the good books of the Government or liked by the Government. This contantion cannot lie a consideration to interpret a provision by aBQroaching the content of the power with 'the fear that power m1glfr be l\l;!used. There are remedies for abuse of powers by any authority. The person against whom power is used arbitrarily or malafide will_~ways ha'<e the right to come to a court of law for redress of ~rie H vances. The courts of law will in the administration of :jUstice protect a person against any arbitrary action of the ·authorities. It was also submitted on behalf of the appellant that

¶474

[1972) 2 S.C.R.

¶475

SUPREME COURT REPOR.TS

¶476

732

¶477

¶478

the order of suspension was made to humiliate the appellant. It was not alleged that the order was made mala{ide. The fact that the appellant happens to be a member of the Indian Civil ~oervice will have no relevance in considering the extent of the power or exercise oi the power of suspension. As a matter of fact in the present case there are serious charges and allegations against the appellant. The Takru Commission has given a report that a prima fade case is established against the ~ppellant. The report was made early in the year 1971. It was submitted on behalf of the appellant that the order of suspension against the appellant was made lJ!y the Government without taking into consideration the affidavit filed by the Government before the Takru Commission. In the affidavit filed by the appellant in the High Court .it was alleged in paragraph 27 that in the affidavit filed before the Commission the Government U{Jheld the deci.sion taken by the authorities and therefore the order of suspension against the appellant did not have any basis. There wa; no allegation that the Government had not considered the affidavit. No opinion need be expressed on the nl.erits and demerits of the rival cases contained in the affidavit evidence before the Takru Comm1ss1on. Those allegations and defences are within the province of the inquiry. The affidavit evidence in the petition filed by the appellant is that the Government considered the matter. The order dated 23 March, 1971 indicates that the President after carefully considering the available material and having regard to the nature of the charges against the appellant and the circumstances of the case is satisfied that it is necessary and de.;irable to place the appellant 1\114er suspension. Therefore, the satisfaction of tbe President is established by objective consideration of •he materails.

¶479

Counsel on behalf of the appellant contended th1'! the power o.f suspension was in aid of disciplinary proceedings and therefore suspension could be only after initiation and during the pendency of disciplinary proceedings. It was said that disciplinary proceedin11s were i11itiated and commenced only ~ giving the Government servant 'articles of charge' for submission of defeuce before the inquiring ·authority as mentioned in Rule 8 of the All Indb Services (biscipline and Appeal) Rules, 1969. Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 is under the general heading of s-uspension during disciplinary proc.,aedings. There are seven sub-rules in Rule 3. Under the first sub-rule which forms the subject matter of the present appeal the Government which initiates any disciplinary may pass an order placing ~ member under suspension when the Government is satisfied that it is necessary to place under suspension the member agaimt wh<im such proceedings are started. There are two other sub-rules in Rule 3 to show that when criminal charges and investigations or

P.R. NAYAK V. UNION (Ray, J.)

¶488

733

¶489

A trial are pending against a Governmeni servant or when he is detained in official custody for more than 4~ hours he wi)l be deemed to be under suspension. These sub-rules establish that the power of suspension is exercisable in instances othe; than inquiry under Rule 8. A criminal trial comes later on. But suspension takes place earlier than the trial during the investiga-

¶490

B tion. It is really the gravity of the charge which will weigh in ordering suspension. Rule 3(l)(a) does not say that the Govcr,unent which has initiated disciplinary proceedings may pass an order of suspension. Rule 3(1) (a) doe~ not say that a member againsi whom such proceedings have been started cau be placed under suspension. On the contrary the words 'which i!litiates any

¶491

c disciplinary proceedings' in relation to the Government and the words 'against whom such proceedings are started' in. relation to a member of the Service indicate that the .initiation of disdplinary proceedings in the form of inquiry into charges is not the pre· requisite of an order of suspension.

¶492

Under Rule 3 (I)( a) the power of the Government is to place

¶493

D a member under suspension when it is satisfied that it is necessary or desirable to place a member under suspension. A prima fac1e case has been estab[ished as a result of the report of the Takru Commission. The Government has cQilSidere_d that. Disciplinary proceedings are c0ntemplated. That is the bash of the order of suspension. In Rule 3 it is said that 'having regard to

¶494

E the naftirc of the charges and the circumstances in any case' the Government may pass an order. The words 'nature of the charges' 1nd the circumstances in any case in Rule 3 are different from the prccedure laid down in Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969 for imposing major penalties. · Under Rule 8 when it is proposed to hold .an inquiry the disciplinary

¶495

F authority shall draw up the substance of the imputation of misconduct or misbehaviour into defulite and distinct articles .of charge and a statement of the imputation of misconduct or misbehaviour in support of each article of charge is also 10 be drawn up. A copy of the article of the charge is to be delivered to the member. It was said by counsel for the appellant that the words 'n.lture of the charges' in Rule 3 and 'articles of charge' in Rule 8

¶496

G rnca,1 the same thing. Rule 3 is of much wider amplitude inasmuch as the words used in Rule 3 'nature of- the charge and the circumstances in any case' show that the area is more ample. The two qualifying words 'nature' and 'circumstances' accentuate the difference between Rules 3 and 8 in regard to the time and the manner of their operation. The case that is contemplated in

¶497

H Rule 3 is the prima facie case and the nature of charges in that case. The explanation to Rule 6 of the AH India Services O?eath'c11m-Retirement Benefit) Rules, 1958 states that a disciplinary proceedi,ng shall be deemed to be instituted when the

¶498

1~1643SupCT/72

¶499

734

¶500

[1972] 2 s.c.R.

¶501

SUP}lBME COURT REPORT~

¶502

charges framed against the pensianer are issued to him, or, if he has been piaced under suspension from an earlier date, on such date.. It was said that Rule 6 which speaks oi recovry from pension on any pecll:Iliary loss caused to the Central or the State Government from a pensioner was not applicable to members of tne Indian Civil Service, But Rule 6 applies to Government servants who can be placed under suspension under Rule, 3. It will be illogical and incongruous to hold that in case of other Government servant disciplinaiy proceedings commenced when he is placed under suspension but it will be not so in the case of a l'jl.ember of the Indian Civil Service. Disciplinary proceedings are wider in import than inquiry ba Board for finding facts aad ascertaining. the truth. That is why· suspension is an interim measure in aid of disciplinary proceedings and is in itself a disciplinary matter so that the officer concerned does not gain custody or control of papers or take any advantage of position er power in service.

¶503

In S. Govinda Menon v. The Union of India & Anr. (') allegations were made against a member of the Board of Revenue. The State Government placed him under _suspension under Rule 7 of the All 1ndia Services (Discipline and Appeal) Rules, 1955. The present Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 came into existence in place of Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955. Rule 3 is in identical language. In Govinda Menon's(1) case it was contended' that the order of suspension was bad because 'there was no fonnal order of the Government for instituting disciplinary proc.:edings. The order of suspension stated that preliminary inquiries had shown prima facie that the officer is guilty of corruption, nepotism and other irregularities of grave mture. The order further indicated these features. The detailed enquiry into the charges was in progress. The evidence was to b~ collected. In the interest of the proper conduct of the enquiry it was necessary that the officer should not be allowed to continue in that post. "'The officer is suspended till the disciplinary proceedings initiated against him are completed··. This Court 1.lll reading the order of suspension held that it showed that the Government had accepted the proceedings and had decided to ,go forwai:d with the disciplinary proceedings and there was no formal order necessary to initiate disciplinary proceedings. This Court also held in Govinda Menon's(¹ ) case that the word 'charges' occurring in Rules 5(2) and 7 of the 1955 Rules corresponding to Rules 8 and 3 of tile Ali India Serv_ices (Discipline and Appeal) Rules, 1969 did not have the same meaning. The word 'charges' in Rule 5 ( 2) of me 1955 Rules corresponding to Rule 8 of the 1969 Rules

(I) [\9671 2 S.C.R. 566.

¶513

P. R. NAYAK v. UNION (Ray, J.)

¶514

735

¶515

A rertrs to definite charge or charges which are reduced into writing whereas the words 'having regard to the nature of the charges and the drcumsta~es in any case' occurring in the present Rule 3 and the correspondmg. Rule 7 of the 1 ?55 Rules have. a wider meaning denoung accusat10n -or 1mputat10ns. The ruling in Govinda Menon's(') case is that there is power of the Government to sus· B pend. a member when disciplinary proceedings in the shape of mqmry are contemplated and the order of suspension in the back· ground of charges a.iJ.d circumstances amounts to initiation of disciplinary proceedings.

¶516

In the case of Government of India, Ministry of Home Affairs c and Ors. v. Tarak Nath Ghosh(') this Court had to consider .whether suspension of a member of the Service would only be ordered after definite charges had been communicated in terms of the old Rule 5 (2) which corresponds to the presnt Rule 8 or whether the Government was entitled to place an officer under suspension even before that stage had been reached after the preliminary investigation had been made into the conduct of the officer concerned followD ing allegations of corrupt practice levelled against him. The earlier decisions of this Court were referred to and thereafter it was said 'Merely because the order mentioned that disciplinary proceedings were contemplated against the respondent, as compared to Rule 7 which contains phrases like 'the initiation of disciplinary proceedings' and the 'starting of such proceedings' we cannot hold E that the situation in the present case had not reached a stage which called for an order 0 J suspension. In substance disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and fol)owed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him F for the framing of charges. When the order of suspension itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out tbe fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rule of service an order of suspension may be made when 'disciplinary proceedings were contemplated' should not lead us to take the G view that a mel)lber of an All India Service should be dealt with, differently. The reputation of an officer is equally valuable no matter whether he belongs to All India Service or to one of a humbler cadre. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be difference in regard to this matter as between a member of an H Al! India Service and a member of :a State Service or a Railway Service".

¶517

(I) [1967] 2 S.C.R. 566.

¶518

(2) AIR. 1971 S.C. 823.

¶519

(1972] 2 s,c:R.

¶520

736

¶521

SUPREME COURT REPORTS

¶522

These decisions indicate the reasons for suspension of a member of the Service against whom disciplinary proceedings are cont~mplated. The iJllstitution on inquiry procee,dings and the imposition of penalty are dealt with in separate Rules in the All India Services (Discipline and Appeal)Rules, 1969. Rule 7 thereof speaks of authority to institute proceedings and to impose penalty. Rule 8 speaks of procedure of inquiry for imposing major penalties. Rule 9 speaks of action on the enquiry report. Then there are Rules with regard to orders in the light of the enquiry and appeals from such orders. These provisions and in particular Rule 3 indicate the different stages of disciplinary proceedings. There is no formal order necessary for initiation of disciplinary proceedings. The order of suspension in the context of preliminary investigation and a prima facie case against the Government servant is appropriately an initiation of disciplinary proceedings and is a step in aid of formal inquiry which will be held for imposition of penalty.

¶523

In Champak/al Chimanlal Shah v. The Union of lndia(1) this Court made certain observations on the meaning of disciplinary proceedings 'and said that where it is intended to take action by way of punishment what usually happens is that a preliminary enquiry is first held in connection with the alleged misconduct. In the preliminary enquiry the explanation of the Government servant is . taken and documentary and even oral evidence is considered. When such a preliminary enquiry makes out a prima facie case against the servant concerned, charges are then framed against him and he is asked to show cause why disciplinary action should not be taken against him. The Enquiry Officer is appointed. This is known as the formal departmental enquiry into the conduct of. a public servant. When the enquiry is uver the Enquiry Officer makes a report. The Government makes up its mind on the enquiry report. The Government then commumcates a copy of the enquiry officer's report and its own conc]J.ision. It therefore follows that after there is a prima facie case against the servant coneemed as a result of a prelimina,ry enquiry he is asked to show cause. In the present case the Takru Commission made the preliminary enquiry. The Takru Commission gave the report. The Government considered the report. TIJ.e appellant appeared before the Takru Commission. The appellant made submissions. The Government considered the nature of the charges and the circumstances of the case and placed the appellant lllilder suspension. Therefore there is a preliminary enquiry. Disciplinary proceedings are under Rule 6 of the All India ~ervices (Death-cum-Retirement Benefit) Rules, 1958 also deemed to be initiated by placing a Government servant under suspension. Rule 6 apart, the order of suspension set in motion disciplinary proceedings which have different stages.

P. R. NAYAK V. UNION (Ray, J.)

¶532

737

¶533

¶534

A Again, in the case of R. P. Kapur v. Union of India & Anr. (² ) this Court considered the suspension of a Government servaint on the ground that a criminal case was pending against him. It was contended in that case that suspension pending a crimi:nal proceeding could not be said to be a disciplinary matter. That argument was not accepted. It was said that suspension is of two kinds. It I is either a punishment or an interim measure pending a departmental enquiry or pending a criminal proceeding. Suspension as a punishment is a disciplinary matter. Suspension peinding a departmental enquiry or pending a criminal proceeding was also held to be comprised within the words 'disciplinary .matters' within the meaning of Article 314. It was then said "Take the case of suspension pending a departmental enquiry. The purpose of such suspension is generally to facilitate a departmental enquiry and to ensure that while such enquiry is gonig on-it may relate to serious lapses on the part of a public service-, he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the nquiry. In such a case s_usension pending a departmental enquiry cannot be but a matter mt1mately D relattd to disciplinary matters'.

¶535

In the case of a member of the Indian Civil Service there cannot be any departmental proceedings after retirement whereas in the case of other Government servants there can be. But that is not the reason for an order of suspension. This is only to show that when the appellant wanted a:n extension he wanted an opportunity to defend himself against the charge. When counsel for the appellant submitted that the appellant felt humiliated at the order of suspension it has to be said that if the appellant could have been punished during the period o.f extension of service the're could equally have been an order of suspension to facilitate an enquiry. It cannot be brushed aside that a Commission headed by a Retired High Court Judge was set up to enquire into serious charges against the appellant. The Commission found that not only charges which had been levelled by the Government against the appellant but also other charges as a result of the preliminary enquiry were prima facie established against the appellant.

¶536

¶537

¶538

First disciplinary proceedings are not defined in the Rules. The Government _is the disciplinary authority. The Government is the authority which initiates disciplinary proceedings. When charges of misconduct are made against a Government servant the Government makes a preliminary inqniry. If the Government is satisfied that there is a prima facie case the Gove~nment cannot then remove the Government servant from service. There will have to be an ~nquiry. Before the inquiry is started the Government may find it necessary in the circumstances of cases to place (I} [1964] 5 S C.R. 190. (2) [1964] 5 S.C.R.431.

¶539

[1972J 2 s.c.R.

¶540

738

¶541

SUPREME COURT REPORTS

¶542

a Government servant under. suspension. Having regard to the charges the presence of the Government servant ln the Department where he worked may embarrass and impede the full investigation and collection of evidence. In these circumstances of a case the Government may suspend a Government servant. The inquiry will take place afterwards. But till then an order of suspension may become necessary. The entire gamut of disciplinary proceedings will therefore- embrace the preliminary inquiry into allegations, a prima facie opinion of the Government as a result thereof and the formal enquiry giving the Govemmemt servant full opportunity to defend against the articles of charge. Secondly, disciplinary proceedings cover the entire range of proceedings from the preliminary investigation into complaints against the honesty and conduct of a Government servant to the final order of punishment after inquiry under Rule 8. Thirdly, no formal order of initiation of disciplinary proceedings is contemplated in the Rules nor is a formal order necessary when the overt act of order of suspension establishes the initiation of disciplinary proceedings in the entire context of facts. Fourthly, suspension is not an inscrutable matter. It speaks, it acts and it affects. It is a disciplinary matter. It is a part of disciplinary proceedings. Fifthly, there can be suspension of a Government servant after a preliminary investigation when disciplinary proceedings in the form of departmental inquiry are contemplated. This suspension is not a punishment but a disciplinary matter in aid of disciplinary proceedings. Suspension is ordered to facilitate free investigation and collection of ,evidence. It may be that the Government may not after suspension order a departmental inquiry if there is not adequate evidence. Again, where suspension takes place during investigation of a criminal case there may Cle a departmental enquiry even after· conviction or acquittal. The departmental enquiry is for inflicting punishment. Suspension is not so. That is why if.there is favourable report after a departmental inquiry the Government servant may obtain restoration of reduction of pay during the period of suspension. Departmental proceedings, disciplinary proceedings, preliminary enquiries for setting up an authority under the provisions of the Public. Servant Inquiry Act 1950 are all variants of disciplinary proceedings.

¶543

Therefore, in the facts and circumstances of ·the present case the order of suspension was properly and validly made. Disciplinary proceedings start when the Government decides to go ahead with holding an enquiry. The Government set up a Commission headed by Shri Takru. The suspension was an express act on the part of the Government in the wake of the preliminary enquiry and the report made qy Shri Takru.

'C'

The fourth contention on behalf of the appellant was that the order of suspension was bad inasmuch as there was no order under

¶553

P. R. NAYAK V. UNION (Ray, J.)

739

Fundamental Rule 56(ff) requiring the appellant not to retire. At the outset it has to be borne in mind that the order of suspension is not under Fundamental Rule 56(ff). The order of suspension is under Rule 3 of the Aff India Services (Discipline and Appeal) Rules, 1969. Fundamental Rule 56(ff) is a Rule laying down the consequences ol an order of suspension. When a valid order of B suspension has been made as in the present case during the period of extension of the services of the appellant it could not in the same breath be said that he is not permitted to retire. That is the concomitant of the order of suspension. Furthermore, the language of Fundamental Rule 56 (ff) .is that notwithstanding anything contained in clauses (a), ( d) ·anq (f) a member of the Indian Civil c Service who is nnder suspension shall not be required or permitted to retire. Therefore, Fundamental Rule 56(ff) itself cont.ains the words forbidding retirement of a member placed under suspension. Fundamental Rule 56(ff) means these things. First, Fundamental Rule 56(4') is deleted from coming into operation during the period of suspension inasmuch as the \ ::irds used are 'notwithstanding D anything contained in clause (f) '. Secondly, the language of Fundamental Rule 56(ff) is that he shall not be required or permitted to retire. The language is not that he shall be required not to refoe. In other words, retirement is negatived by the positive effect of suspension. Thirdly, the entire consequence of Fundamental Rule 56(ff) is that the member shall be retained in service until the enquiry into the charges is concluded and the final order E is passed. This Coun in State of Punjab v. Khemi Ram(') stressed the importance of passing an order of suspension where a· disciplinary enquiry could not be concluded before the date of retirement. In short the order of suspension means that he is in service but his services are temporarily. suspended and no retirement can therefore take place.

¶558

¶559

It was said on behalf of the appellant that Fundamental Rule 56(ff) occurred in a Chapter headed 'Compulsory retirement' and the word 'compulsory' was removed sometime in 1969. It was therefore said that Fundamental Rule 56 (ff) which 'did not permit a Government servant placed qnder suspension to retire was in the nature of punishment. The deletion of the word 'compulsory' was necessitated inasmuch as Fundamental Rule 56 regulated not only cases of compulsory retirement of Government servants in public interest prior to the attaining of the age of superannuation but also of Government servants afte~ attaining the age of 50/55 years or rendering 30 years' service as the case might be. That is why the headi1ng became 'Retirement' instead of 'Comoulsorv Retiremenf to be a correct reflection of the llrovisions. The•efore. when an order of suspension was made the mandate of Fundamental Rule (i)['970]z SCR. 6fl:,--

¶560

¶561

( 1972] 2 S.C.R.

¶562

SUPREME COURT REPORTS

¶563

740

¶564

56 (ff) became effective and placed an embargo on retirement. If an order of suspension were made before. the appellant completed 35 years oi. service the order of suspension could a fortiori bje made while the· appellant was in the enjoyment of an extension of service. The result of the order oi. suspension is to suspend the retirement. The prohibition against retirement is embedded in Fundamental Rule 56 (ff). Therefore, no separate order is required or necessary to the effect that the appellant shall not be required or permitted to retire could be made under Fundamental Rule 56(ff).

¶565

The last contention on behalf of the appellant was that Funda.mental Rule 56(ff) infringed Article 14 .. The counterpart of Fundamental Rule 56(ff) was Rule 56(d). Fundamental Rule 56( d) ame into existence in the month of November, 1946. The gist of Fundamental Rule 56 ( d) is that notwithstanding anything contained in clauses (a), (b!) and (c) a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the date of compulsory retirement but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by competent authority. In 1962 Fundamental Rule 56(d) was omitted. In 1970 Fundamental Rule 56(ff) came into existence. It.is in the same language as the previous Fundamental Rule 56(d) as far as members of the Indian Civil Service are concerned. It was said on behalf of the appellant that comparison of Article 35 lA of the Civil Service Regulations and Fundamental Rule 56(ff) indicated that Fundamental Rule 56(ff) offended Article 14. There is fallacy in the appellant's contention. The members of the Indian Civil Service are governed by their Regulations and under Article 314 of the Constitution it is impermissible to deprive them of their special _privileges. Article-35 lA of the Civil Service Rgu\at~ons was rehect on by the appellant to show that there was d1scnmmation against the members of the Indian Civil Service inasmuch as under Civil Service Regulations 35 lA a Government servant against whom disciplinary proceedings w.ere pending could be permitted to retire. Fundamental Rule 56( d) applied to the members of the Indian Civil Service prior to '{he Constitution and was a rule upto 1962 when it was deleted. Fundamental Rule 56(d) was not in existenc.e upto 1970. All that happened in 1970 was to restore Fundamental Rule 56( d). There are no rules under which departmental proceed}ngs can be instituted against the members of the Indian Civil Service after their compulsory retirement. The members of the Indian Civil Service have other rights and privileges which are not available to members of the Indian Administrative Service; The restoration of Fundamental Rule 56(d) by inserting Fundamental Rule 56 (ff) cannot be said to be an infraction of Article 14. That Rule governed the members of the Indian Civil

P. R, NAYAK V. UNION (Ray, J.)

¶575

741

¶576

A. Service upto 1962. For SOl!le reason or other the rule was not in use. Fundamental Rule 56(ff) was a mere restoration of the rule.

¶577

Another contention which was advanced on behalf of the appellant was that under Rule 6 of the All India Services (Death- cum-Retirement Benefit) Rules, 1958 an officer to whom the rule B applied was merely subjected to a loss of pension whereas the appellant was prevented from retiring and was not permitted to leave his headquarters and,he could also be dismissed or removed from service whereas the other officers governed by t4e All India Services (Death-cum-Retirement- Benefit) Rules, 1958 eould 'l!Ot suffer such disability. There are some differences between the members of the Indian Civil Service and the members of the All c India Services. The differences also indicate that there are special rights and privileges of the members of the Indian Civil Service: They are treated separately in many respects. The appellant's insistence on the right to retire will completely nullify any disciplinary proceedings once the retirement takes into effect. That is why the. appellant was placed under suspension. There is no D violation of Article 14:

¶578

The contentions of the appellant fail. The appeal is therefore dismissed. Parties will pay and biear their own 'Costs.

¶579

ORDER

¶580

J!l In accordance with the opinion of the majority, the appeal is allowed and the suspension order is quashed. There will be no order as to costs.

¶581

V.P.S.

P.R. Nayak v. Union of India

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P.R. Nayak v. Union of India

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