P. R. Nayak Vs. Union of India [1971] INSC 339 (7 December 1971)
DUA, I.D.
DUA, I.D.
MITTER, G.K.
PALEKAR, D.G.
SIKRI, S.M. (CJ) SHELAT, J.M.
RAY, A.N.
CITATION: 1972 AIR 554 1972 SCR (2) 695 1972 SCC (1) 332
ACT:
Civil Service--Member of Indian Civil Service--Suspension of.
All India Services (Discipline and Appeal) Rules, 1969 r. 3--Scope of--If civil servant can be suspended when disciplinary proceedings are in contemplation.
Fundamental Rules, rr. 56(f) and 56 (ff)--Scope of--if r. 56(ff) ultra vires Art. 14 of the Constitution.
HEADNOTE:
The appellant was a member of the Indian Civil 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 certain 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 his 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 made Linder r. 3 (1) (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 they said Shri P. R. Nayak under suspension with immediate effect until further orders.
" The appellant filed a petition for quashing the order of suspension but the High Court dismissed the petition.
In appeal to this Court, it was contended that : (1) the order was violative of r. 3 of the All India Services (D & A) Rules; (2) Under F.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 taken against him as a member of the I.C.S.; (3) his retention in the post only amounted to reemployment; (4) since he became Secretary 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 illegal-, (5) the order of suspension without specifically denying his request to retire on March 25, 1971, was defective; and (6) F.R. 56(ff)-by which an officer like the appellant under orders of suspension is not to be permitted to retire till the enquiry against him is concluded-is ultra vires.
HELD: (Per S. M. Sikri, C.J., J. M. Shelat, I. D. Dua and [G. Palekar, JJ.) : The appeal must succeed on the first contention, 709 D-E] (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 Services (D
(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 competence of the Government, but the impugned order seriously affects sonic of the appellant's rights and privileges under the conditions of his service. namely; (i) During the period of suspension he is not entitled to his full 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 mere contemplation of disciplinary proceedings. [714 D-H] Sub-rule (1) (a) of r. (3) empowers the Government which initiated any disciplinary proceeding to place under suspension a member of the service against whom such proceedings are started. The language is plane and unambiguous and does not suggest that suspension can be ordered merely because disciplinary proceedings are contemplated. The language of sub-rr. (4) to (7) also does not authorise suspension merely because disciplinary proceedings are contemplated. The scheme underlying r. 3 is indicative of the intention of the rule-making authority to restrict its operation to those cases in which Government has sufficient material, whether 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-C] (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, 1955replaced by the present ir. 3(1) of the 1969rules-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 Menon's case the order of suspension was held also to be the order initiating disciplinary proceedings. The legality of a composite order both initiating disciplinary Proceedings and suspending Govinda Menon was not questioned in the case.
[710 C-E; 712 G; 714 A-B] (e) Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 195T, provides for suspension of a Government servant pending disciplinary proceedings or when a disciplinary proceeding is contemplated. This phraseology has been retained in the corresponding 1965rule. just 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 may 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 rules were purposely selected to express precisely intention of the rule making authority. [715 A-H; 716 A-B] (f) The existence of r. 40(1) of the Railway Protection Force Rules, 1959. providing for suspension of a member of the Force when investigation into charges against him is contemplated. further fortifies our interpretation of r. 3 of the All India Services (D & A) Rules, 1969. [716 In this view, the majority did not consider the other contentions.] (Per A. N. Ray and G. K. Mitter, JJ.) dissenting:
The appeal must be dismissed.
697 (1) (a) The three features of r., 3 of the All India Services (D & A) Rules, 1969, arc, (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 whom such proceedings are started. The words 'which initiates any disciplinary proceedings' and 'against whom Rich proceedings are started' are merely descriptive of the Government and the member of the service, respectively. 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 servant. The rule does not say that the Government which has initiated disciplinary proceedings may order suspension, or that a member against whom such proceedings have been started can be suspended. [731 C-F] (b) The provision cannot be interpreted by the consideration that tile powers may be abused by arbitrary exercise, because, the victim of any such arbitrary exercise has a right to come to court and the court will protect him against any mala fide action. [731 G-H] (c) The order of suspension indicates that President of India was satisfied that it was necessary and desirable to suspend the 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] (d) The sub-rules to r. 3 establish that the power of suspension is exercisable in instances other than an enquiry under r. 8, for example, when criminal charges and investigation or trial are pending. That is, there can be suspension earlier than the trial during investigation. [733 A-B] (e) Rule 8 of the Rules provide,., that when it is proposed to bold an enquiry, the disciplinary authority shall draw up articles of charge, while r. 3 requires regard to the nature of charges. The meaning of the word charge' in the two expressions is not the same. Rule 3 is of wider amplitude as it deals with the stage of a prima facie case and the word charges have the wider meaning of accusations and amputations. [733 G-H] Govinda Menon v. Union of India, [1967] 2 S.C.R. 566, followed.
(g) Rules 3, 7, 8 and 9 indicate the different stages of disciplinary proceedings. Therefore, disciplinary proceedings can be said to have been started when complaints about the misconduct of a Government servant are 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 charges. No formal order is necessary for initiation of disciplinary Proceedings and the order of suspension, in the context of the preliminary investigation and a prima facie case can itself be treated as an initiation of disciplinary proceedings. Such suspension is not a punishment, but is in aid of disciplinary proceedings and is ordered to facilitate free investigation and collection of evidence. When such an order of suspension itself shows that the Government was of the view that a prima facie case had been made out. the fact that the order also mentions that disciplinary proceedings are contemplated makes no difference. Also, the fact that in other rules of service an order of suspension may be made when disciplinary Proceedings are contemplated, does not require that a member of an All India Service should be dealt with differently [736 A-C; 737 G-H, 738 A-F] 698 S. Govinda Men on v. Union of India, [1967] 2 S.C.R. 566 and Government of India v. Tarak Nath Ghosh, A.I.R. 1971 S.C. 823, followed.
Champaklal Chimanlal Shah v. Union of India, [1964] 5 S.C.R.
190 and Kapur v. Union of India, [1964] 5 S.C.R. 431, referred to.
(g) The explanation to r. 6 of the All India Services (Death-cum-Retirement Benefit) Rules, 1958, states that a disciplinary proceeding shall be deemed to be instituted when charges framed against the pensioner are issued to him, or, if he has been placed under suspension from 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 hold 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 at member of the Indian Civil Service. [733 H; 734 A-C] Therefore, on the facts and circumstances of the present case the order of suspension was properly and validly made.
[738 G] (2) The contention that a member of the Indian Civil Service on completion of 35 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] (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 service was not a new ,employment after retirement.. Nor is it a case of a fresh contract, because, 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 extension in service. It is incomprehensible how one can be permitted to retain a post he was holding at the end of 35 years service, if ,one has 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 make 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-E] (4) (a) The contention of the appellant that he was entitled to an extension of 5 years is against the terms of t. 56(f). The appellant is estopped from challenging this extension till March 25, 1971. The appellant himself 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 estopped rightly raised against the appellant in regard to F.R. 56(f) and 56(ff) 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 President to be retained in service for a period of 4 months, pursuant 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 699 remained a member 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] (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, (i) that the order of extension does not indicate that the person concerned is mentioned with reference to a particular post, and (ii) that the extension of service is in no case for 5 years.. Therefore, tinder F.R. 56(f) the extension in fact can be for any period, which together with the period for which he held the post does not exceed 5 years. [720 H; 730 A-C] (5) The order of suspension is under r. 3 of the All India Services (D & A) Rules, and F.R. 56(ff) is a rule laying down the consequences of the order of suspension. They are (i) F.R. 56(f) is deleted so as not to come into operation during the period of suspension inasmuch as the words used are, 'notwithstanding anything contained in cl. (f)', (ii) the member of the service shall not be required 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 allowed 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 be illogical to hold that a member of the Indian Civil Service cannot 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 suspension means 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 F.R. 56(ff) and therefore no separate order is required or necessary to the effect that the appellant shall not be required or permitted to retire. [739 A-H; 740 A-B] (6) Fundamental Rule 56(ff) does 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(ff) reintroduced in 1970 the old cl. (d) of the rule, which was deleted in 1962. Under F.R. 56(d) also a Government servant under suspension shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service until the enquiry is concluded.
That rule governed by the members of the Indian Civil Service till 1962. Its restoration by inserting F.R. 56(ff) cannot be said to be an infraction of Art. 14. There are some differences between the members of the Indian Civil Service and members of the All India Services, but the differences also indicate that there are special rights and privileges for members of the Indian Civil Service. [740 BH; 741 A-C] & CIVIL APPELLATE JURISDICTION : Civil Appeal No. 875 of 1971.
Appeal from the Judgment and Order dated May 6, 1971 of the Delhi High Court in Civil Writ No. 350 of 1971.
K. Daphtary, B. R. L. Iyengar, J. C. Talwar, S. C. Patel and Bishamber Lal, for the appellant.
Niren De, Attorney-General for India, O. P. Malhotra, Ram Panjwani and S. P. Nayar, for the respondents.
700 The Judgment of the Court was delivered by Dua, J. This appeal on certificate of fitness granted by a Divis ion Bench of the High Court of Delhi under Art. 133(1) (c) of the Constitution is directed against its judgment and order dated May 6, 1971 dismissing the appellant's writ petition under Art. 226 of the Constitution.
The appellant joined the Indian 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 said 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 ofhis 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 to retain his post until he had held it for five 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.
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 Director 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 as 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 change in the alignment of the pipeline of the Indian Oil Corporation in the coal-field 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 Commissioner, who, for.
certain personal reasons, declined to give any advice. In the meanwhile the Government had in August, 1970 appointed a one man Corn701 mission 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. When Shri S. Dutt declined to give his advice the Government in the Ministry of Petroleum and Chemicals in October, 1970 referred 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 him to have been prima facie made out against the appellant. The Takru Commission examined charges against the appellant and before starting 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.
In the meantime, on November 3, 1970 the appellant had written to Shri B. Sivaraman, Cabinet Secretary the 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 willing to accept an extension of service by about 4 months from the 25th November, 1970, the date of my retirement otherwise, should government decide to grant such extenuation." -L643S-SuppI/72 702 On November 23, 1970 the President of India passed the following order extending the appellant's service upto March 25, 1971 :
"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." The order of suspension dated March 23, 1971 reads as under:
"Whereas disciplinary proceedings against Shri P. R. Nayak, ICS are contemplated;
"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 and desirable to place the said Shri P. R. Nayak under 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 they said Shri P. R. Nayak under suspension with immediate effect until further orders.
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." 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 and 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.
The High Court dismissed the writ petition. It held that when the appellant was permitted by the President under the proviso to F.R. 56(f) to continue to hold the post held by him at the end of 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 exceeding five years as contemplated by the said proviso. According to the High Court even the appellant had understood this to be the correct meaning and scope of cl.
(f) of F.R. 56 as he had himself prayed in the writ petition for a declaration that he had retired 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, 1969 could only be made against the appellant after the initiation of disciplinary 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 called for an enquiry and the Government felt satisfied that it was necessary in the circumstances to suspend him. The contention that F.R. 56(ff) was violative of the rule of equality guaranteed 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 Indian Civil Service constituted a class distinct from the other members of the Indian Administrative Service and further that F.R. 56(ff) merely reintroduced in October, 1970 the old cl. (d) oil' F.R. 56 which had been 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.
In this Court a number of points were raised on behalf of the appellant and elaborate arguments were addressed on both sides. We, however, do not consider it necessary to deal with them at length and express our considered opinion on a I of them because in our view this appeal can be disposed of on the short point that the order suspending the appellant is bad, being violative of the relevant statutory rule.
Fundamental Rules , to regulate the conditions of service of civil servants in India, were made by the Secretary of State in Council in exercise of the powers conferred upon him by s. 96-B of the Government of India Act as amended in 1919. They came into force with effect from January, 1922 replacing the substantive rules in Civil Service Regulations except in respect of pensions. Article 565 of the Civil Services Regulations (replaced by the Fundamental Rules in 1922) dealing with "compulsory retirement" so far as relevant provided :
"565(a) After thirty-five years' service, counting from the date of his arrival in India, an officer shall not, except for special reasons, and with the sanction of the Secretary of State retain his office or be appointed to any new office :
704 Provided that, if such an officer has held his officer for less than five years, he may, for special reasons, with the sanction of the Government of India, be permitted to retain his office until he has held it for five years. The term "office" in this article includes an officiating appointment.
Note.-[This rule 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 attaining the age of 60 years.] (b) The period of five years begins to run from the date on which the officer first takes up the office, whether substantively or temporarily, provided that, if temporary, he is confirmed without reverting to his substantive appointment; but the currency of the period is not interrupted by any subsequent temporary promotion to a higher appointment.
Note.-[The term "office" as used in this Article does not include any office held under direct appointment by His Majesty the KingEmperor of India,. but the retention of such an office should be subject to the condition prescribed in Article 563.] 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 TX 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 because of the substitution of the new clause (k) in F.R. 56 which enables certain categories of Government Servants, subject to certain conditions to voluntarily retire by -living three months' notice n writing.
F.R. 56(f) and (ff) read :
"56(f) A member of the Indian Civil Service shall retire after thirty-five years' service counted from the date of his arrival in India.
Provided that if he has at the end of thirtyfive 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.
Note : For the purpose of this clause, officiating tenure of a post shall be included in calculating the period of five years.
705 (ff ) Notwithstanding anything contained in clauses (a), (d) and (f) where an officer who is 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 required 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." Clause (ff) was inserted on October 6, 1970.
Clause (d) of 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 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." 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 beloved to the Indian Civil Service. In August, 1962 a new Civil Service Revolution 351 A was substituted for the old one, which so far as relevant, reads :
" 351-A.-The President further reserves to himself the right of withholding or withdrawing a pension or any 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 any 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 reemployment after retirement :
Provided that(a) such departmental proceeding, if instituted while the officerwas in service, whether before his retirement or during his reemployment, shall, after the final retirement client of the officer, be deemed to be a proceeding 706 under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service;
Rule 3 of All India Services (Discipline and Appeal,) Rules, 1969 which provides for suspension during disciplinary proceedings reads :
"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 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 (b) if the member of the Service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the inquiry and the passing of the final order in the case :
Provided that, in case where there is a difference of opinion between two State Governments, the matter shall be referred lo 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 the termination 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 in the discharge of his duties or involves moral turpitude.
(4) A member of the Service shall be deemed to have been placed under suspension with effect from the date 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 sentence of imprisonment exceeding fortyeight hours.
(5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the service under suspension is set aside in, appeal 707 or on review under these rules and the case is remitted for further inquiry or action or with any other 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 retirement from service impose upon a member of the service is set aside or declared or rendered void in consequence of or by a decision of a court of law, and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of the Service shall be deemed to have been placed under suspension by the Central Government from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
7(a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so;
(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 proceedings, 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 writing direct that the member of the, Service shall continue to be under suspension till the termination of all or any of such proceedings;
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order." Sub-rule (1) of this rule is a reproduction of sub-r. (1) of 7 of the A.I.S (D & A) Rules, 1955.
It may be recalled that the appellant was appointed as Secretary in the Ministry of Petroleum and Chemicals in January, 1965 and he was appointed as Secretary, Works, Housing and Urban Development in February, 1969. The first argument urged on 708 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 reemployment 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 could not be said that he had held the post of such Secretary for a period of less than five years on November 23, 1 970. He could, therefore, not be retained 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 defined 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 Development 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 the Secretary. Works. Housing & Urban Development held by the appellant since February, 1969 and not that of a Secretary to the Government of India, then, his retention to that post should have been for the full period of five years beginning from February, 1969 and his service could not be extended for a period less 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 service exercises his choice under the proviso then be must be permitted to hold that post to complete five 'years in that post.
The next argument 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 with respect to a definite charge or charges against him were actually initiated or started and not merely when they were in contemplation as the impugned order of the President dated March 23, 1971 expressly purports to do. Reference to Takru Commission, according to this argument, could 709 by no means be considered to be the initiation or commencement of disciplinary proceedings. The language of r. 3, according to the learned counsel, is clear and unambiguous 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 interpretation Courts cannot rewrite 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.
The third contention raised on behalf of the appellant emphasized a legal defect in the order of suspension and it was argued that the order of suspension must also have denied the appellant's request to retire on 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 his 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, 1971.
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) Rule 1 969, which has already been set out in extensor, provides for suspension during disciplinary proceedings. Sub-rule this rule on its plain reading empowers the Government, which initiates any disciplinary proceedings on being satisfied, having regard to the nature of the charges and the circumstance, of the necessity, or desirability of placing under suspension, the member of the Service against whom such proceedings are started, to pass 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 delinquent member of the Service merely because disciplinary proceedings against him are contemplated. Suspension under those sub-rules may be ordered only either after conviction. (deeming provision tinder sub-r. 4) or when criminal proceedings are actually in progress (sub-r. 5) or when after the penalty imposed on him having been set aside, the disciplinary authority decides to hold further enquiry (deeming provision under sub-r. 6). Clause (b) of sub-r. (7) similarly provides for continuation of order of suspension. If any other disciplinary proceeding is commenced against the delinquent member of the service. during the continuance of the earlier suspension-actual or deemed. The legislative scheme underlying r. 3 is thus clearly indicative of the intention of the rule making authority to restrict its operation only to 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 Y. 3 and we find no cogent ground for straining the plain language of r. 3 ( 1 ) so as to extend it to cases ill which disciplinary proceedings are merely contemplated and not actually initiated or commenced. It is no doubt true that this Court (G. K. Mitter and A. N. Ray JJ) has in Government of India, Ministry of Home Affairs & Ors. v.
Tarak Nath Ghosh(1) expressed the view that under r. 7 (1) of the All India Services (D & A) Rules, 1955 (replaced in 1969 by r. 3 (1) with such we are concerned,) the Government is entitled to place officer under suspension even before definite charges are communicated to him when preliminary investigation has been 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(2), an earlier decision by a bench of two Judges. After 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 :
"It was urged before us that the order of suspension there was different from the one before us. While there is no doubt that the order against the appellant in the above case was far more detailed both with 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 order in this case dated 31st July, 1964 shows that serious allegations of corruption and malpractice had been made against the respondent and be was also reported to have contravened the provisions of the All India Service Conduct Rules and enquiries made by the Government of Bihar into the allegations had revealed 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 contains phrases "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 stage which called (1) A.T.R. 1971 S.(-. 823.
(2) [1967] 2 S.C.R. 566.
711 for an order of suspension. 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 the Government that a prima facie case has been made out against him 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 has been made out the fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rules of service an order of suspension may be made when 'disciplinary proceedings were contemplated' should not I,--ad us to take the view that a member of an All India Service should he 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 the humble cadre. It is the exigency of the conditions of service which 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." The Court in Tarak Nath Ghosh's case (supra) considered 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 considered to be applicable only when suspension is resorted to by way of punishment. Rule 7 in that case, on the other hand, merely provided for suspension of a Government servant for the purpose of disciplinary proceedings and could, therefore, in the opinion of the Court, 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 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 because the word 'charges' as used in r. 7(1) must be understood to mean definite charge or charges framed under r. 5 (2). This contention was repelled by this Court with the following observations :
"It was pointed out that definite charges were framed on June 6. 1963 and the Government had no authority 712 to suspend the appellant before the date of framing charges. Reference was made to Rule 5 (2) which states :
'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 the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.' 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 argument. Rule 5(2) prescribes that the rounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges.
Under rule 5(3) a member of the Service is required to submit a written statement of his defence to the charge or charged. The framing of the charge under Rule 5(2) is necessary to enable the member of Service to meet the case against him. The language of rule 7 (1) 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 that it is necessary to place him under suspension. In view of the difference of language age in Rule 5(2) and Rule 7 we are of the opinion that the word 'charges' in rule 'I ( 1 ) should be given a wider meaning is denoting the accusations or imp utations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case." It is, however, noteworthy that in that case this Court had a little earlier come to a positive finding that disciplinary proceedings had been actually initiated against the appellant. This is what the Court said :
"A. perusal of the order of the Government, Ex. P-1, would itself indicate that disciplinary proceedings had been initialed against the appellant. Exhibit P-1 reads as follows .
'The Government have received several petitions containing serious allegations of official misconduct 713 against Shri S. Govinda Menon, I.A.S. First Member, Board of Revenue, and formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquiries caused to be conducted into the allegations have, shown prima facie, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. The Kerala High 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 begins with the observation that 'this case, if it has served little else has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Sree Pulapally Devaswom of which I trust due notice will be taken by the competent authority in the interests of the public administration and the preservation of our forest wealth no less than in the interests of this particular institution.' 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 the part of the accused officer.
The detailed enquiry into the charges by the X-Branch is in progress. The evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. Shri S. Govinda Menon, I.A.S. First Member. Board of Revenue, is therefore placed under suspension under Rule 7 of the All India Service (Discipline and Appeal) Rules. 1955 till the disciplinary proceedings initiated against him are completed.' A perusal of this document shows that the Government had accepted the proceedings taken in the matter up till that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings 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 proceedings." 714 In S. Govinda Menon's case (supra), therefore, the order of suspension was 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 Nath Ghosh's case (supra).
There is no gainsaying that there is no inherent power of suspension postulated by the Fundamental Rules or any other rule governing the appellant'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 proceedings can be founded, does not postulate an order of suspension before the initiation 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 against the appellant are contemplated, without suggesting actual initiation or starting of disciplinary proceedings, must be held to be outside this rule. The impugned 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 Government servant. The impugned order made under r. 3 of A.I.S. (D & A) Rules, 1959 on the other hand seriously affects some of the appellant's rights and privileges vesting in him under his conditions of service.
To mention some of the disabilities resulting from his suspension, he is ,not 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 to the subsistence allowance he is prohibited from engaging in any 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 even from leaving New Delhi during the period of suspension, without obtaining the previous permission of the Central Government. The fact that these prejudicial consequences automatically flow from the impugned order Linder the rules also ends 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 715 against him are contemplated. The precise words of r. 3 are unambiguous 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.
In Tarak Nath Ghosh's case (supra) this Court's attention was also drawn to r. 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 made by the President under the Proviso to Art. 309 of the Constitution which in express terms provided for suspension of the Government servant noncertified Anen, inter alia, "a disciplinary proceeding, against him is contemplated or is pending." This Court did not consider that rule +to be of much assistance in construing r. 7 of the A.I.S. (D & A) Rules, 1955 which rules were held to constitute a complete code. In our view the difference in the language used in the relevant rules dealing with suspension in the two sets of rules, namely, C.C.S. (C.C. & A.) and A.T.S. (D & A) Rules may not be considered to be wholly irrelevant and unhelpful for discovering the intention of the draftsman in adopting different phraseology while dealing with the 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:
language. Rule 12(1) (a) and (b) reads :
"12. Suspension.(1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf may Face a Government servant under suspension(a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial.
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 of' 1965, the phraseology of r. 7 (1 ) (a) and (b) dealing with suspension during disciplinary proceedings in A.I.S. (D & A) Rules. 1955 has similarly been retained in the corresponding r. 3 (1 ) (a) and (b) of 1969. This retention of different phraseology in both these sets of rules does not appear to us to be wholly unintentional on the other hand it suggests consistency of purpose and continuity of regulation, tending to reflect the different legislative intentions on the question of scope and effect of the rules dealing with suspension in the two sets of rules. Courts may legitimately presume that the draftsman framing r. 3 (1) (a) and (b) of the 1969 rules which concern us, was aware of the existence 716 of different phraseology used in the rules dealing with Suspension in C.C.S. (C. C. & A.) Rules, 1957 and 1965.
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.I.S. (D & A) Rules, 1955. If with this knowledge the draftsman stuck to the different phraseology ill these respective rules, then, can the Court not fairly assume that ,the actual words used in the different sets of rules were purposely selected with the object of expressing the legislative intention ill 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 concerns us does not authorise suspension when disciplinary proceedings have not been initiated but are only contemplated. Incidentally, it may be pointed out that the Patna High Court, when dealing with Tarak Nath Ghosh's case(1) also noticed r. 1706(1) (a) and (b) dealing with suspension of railway servants. A Guide to Discipline and Appeal Rules) which is in identical terms as r. 12 (1 ) (a) and (b) of the C. C.S. (('-.C. & A) Rules. 1957. Needless to add that we are also aware of another statutory rule rr. 401 (a) and (b) I 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) where an investigation into charges against him is contemplated or pending (b) where a case against him in respect of any criminal offence is under investigation or trial." The existence of such rules serves to further fortify our opinion already expressed on the plain language used in r. 3 (1) (a) and (b) which is by no means obscure or ambiguous.
The different phraseology, in our view, designedly used to express different legislative intention.
We have already 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 the contention of the learned Attorney General that the appellant should be held to be estoppel from urging that the date of his retirement could not be postponed beyond November 25, 1970 as he had expressly agreed to the extension of that date upto March 25, 1971 also need not be considered by us.
In the final result this appeal must succeed and allowing_ the same we-allow the writ petition and quash the suspension order In the circumstances of this case there would be no order as to costs.
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 under Article 226 of the Constitution.
(1) I.L.R. (1966) 45 Patna 749 at 755.
717 The appellant asked for a writ, order, direction in the nature of the mandamus quashing the order of suspension dated 23 March 1971 and a declaration that the appellant retired from service on 25 March. 1971 and further declaring the appellant as immune against any action by the Government and for further writs, orders, directions directing the respondent not to act in any manner under or in furtherance of the order of suspension dated 23 March, 1971 and for a further declaration that Fundamental Rule 56(ff) is void and ultra vires.
The appellant joined the Indian Civil Service on 24 November, 1935. In 1960 the appellant because the Managing Director of 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 appellant became Secretary in the Ministry of Petroleum and Chemicals. On 22 February, 1969 the appellant became Secretary, Ministry of Works, Housing and Urban Development.
The appellant after joining the Indian Civil Service arrived in India on 25 November-, 1935 and was to complete 35 years of service on 24 November, 1970. The completion of 35 years of service was under the rules the date of retirement of members of Indian Civil Service. On 23 November, 1970 the Central Government made an order extending the service of the appellant up to 25 March, 1971. On 23 March, 1971 there was an order of the Central Government suspending the appellant. This order was challenged in the application in the High Court.
The facts preceding the order of suspension are as follows.
In the month of August, 18 an enquiry into certain matters connected with the laying down of the Haldia-Barauni pipeline through the coal fields of West Bengal was entrusted to Shri N. S. Rao, Central Vigilance Commissioner.
The appellant on 20 August. 1968 wrote to Shri Rao that though the latter would 'lay down his office on 23 August, 19,68 he had offered to continue and complete the report of the enquiry in an honorary capacity and that the Government accepted the order of Shri Rao with thanks. The letter was sent by the appellant after obtaining the prior approval of the Minister of Petroleum. On 21 August, 1968 Shri N. S. Rao wrote a letter
