P.R. NAYAK v. UNION OF INDIA
Citation: [1972] 2 S.C.R. 695; 1971 INSC 339
Court: Supreme Court of India
Bench: S.M. SIKRI , J.M. SHELAT, G.K. MITTER, A.N. RAY, I.D. DUA, D.G. PALEKAR
Judgment date:
Case summary
1971 INSC 339. Supreme Court of India judgment dated 1971-12-07. P.R. NAYAK v. UNION OF INDIA. Read the judgment and case details on LawSphereX.
Judgment text
A B c D E F G H P. R. NAYAK v. UNION OF INDIA December 7, 1971 69s; [S. M. S! KRI, C. J. , J. M. SHELAT, A. N. RAY, I. D. DUA D. G. PALEKAR AND G. K. MITTER, JJ. ) Civil Service-Member of Indian Civil Service-Suspension of. 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. 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 ex- pressed 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 .. " 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 : (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 appel- lant. 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 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 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) (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] (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- 696 SUPREME COURT JlEPORTS [1972] 2 S. C. R. 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 sus- pension, 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 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 con- templated. [709 E-H; 710 A-CJ (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 dis- ciplinary proceedin~s. The legality of a composite order both initiating disciplinary proceedings and suspending Go,inda Menon was not ques- tioned in the case.
[710 C-E; 712 G; 714 A-Bl (e) Rule 12 of the Central Civil Services (Classification, Control anti Appeal) Rules, 1957, provides for suspension of a Government servant ~oding disciolinarv proceedin~s 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 res- pective 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 nn this view, the majority did not consider the other contentions. ] (Per A. N. Rav and G. K. Mitter. JJ. \ dissentin11 : The appeal must be dismissed. A B c [) E F G H , A B c D F G H P. R. NAYAK V. UNION 697 (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 suspen- sion; and (iii) the person against whom the order is made, namely, the member of the service against whont such proceedings are started.
The 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 prece- dent 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 sus- pended. [731 C·Fl (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 pro- tect him against any ma/a fide action. (731-G-H] ( c) The order of suspension indicates that President of India was 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] (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] (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 ampli- tude 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 Gorii;cla Menon v. Union of /ndie1, f,1967] 2 S. C. R. 566, followed.
(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 ser- vant 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 initiation- 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 to- f:icilitate free investi~ation 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 diffe- 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'fe- r~ntly [736 A-C; 737 G-H; 738 A·F) 698 SUPREME COURT REPORTS [1972] 2 S. C. R. 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. ' 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. (g) The explanation to r. 6 of the All India Services (Death-cum· A Retirement Benefit) Rules. 1958, states that a disciplinary proceeding B 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 C Thep~fore, on the facts and circumstances of the pfesent ~~e, the order of suspension was properly and validly made. P38 G] (2) The contention that a member of the Indian Civil Service on com- pletion 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 retire- ment 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 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 (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 appel- lant 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 D E F G H P, R, NAYAK V. UNION 699 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] B c D E F G 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, ( 1) that the order ol"' extension does not indicate that the person concerne n(lt exceed 5 years.
[720 H; 730 A. CJ (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 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 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 retire- ment is embedded in P. R. 56(ff) and therefore no separate order is re- quired or necessary to the effect that the appellant shall not be required or permitted to retiro. ! 739 A-H; 740 A·BJ (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 scrva~t under suspension shall not ~ required or permitted to retire on reachmg the date of compulsory retirement. but shall be retained in ser- vice until t_he en! l~iry is _con~luded. 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 so~ 1 e differences between the members of the Indian Civil Service and members of t~e All India Servi_c~s. but the differences also indicate. that there are special nghts and nnvtleg ~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. Tile next argumell't pressed before us on. behalf of the appel- c D E F G lant 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 H they were in contemplatiQn as the impugned order of the Pre- sident dated March 23, 1971 expressly purports to do. Re- ference to Takru Commission, according to this argument, could· A B c D E F G H P. 11.. NAYAK v. UNION (Dua, J,) 709 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 im- putations against him which call for an enquiry : in the guise of: 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. The third contention raised on behalf of the appellant em-· phasised a lega(defect in the order of suspension and it was argu. oo that the order of suspension must also have denied the appellant's request to retire oil March 25, 1971. Without expressly pro- hibiting 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, 1971. In our view, the second contention possesses merit and deserves to be upheld.
In case we uphold this contention it would be un- necessary 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 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 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 contem- plated. 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- 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) of sub-r. (7) similarly provides for continuation of order of sus- pension. if anv other disciplinary pr~ceeding is commenced against the delinquent member of the service. durin11: the continu- ance 0f the earlier suspension-actual or deemed. The legis-· 710 SUPREME COURT REPORTS [1972] 2 S. C. R. 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 pos- sessed _of sufficient material whether after preliminary investigation or otherwise and 'the disciplinary proceedings have in fact com- menced 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 strain- ing 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: "It was urged before us that th. e order of suspen- sion 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 pla- cing 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. .. A B c D E F G H A B c D E F G H P. R. NAYAK v. UNION (Dua, J. ) 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 en- tertained 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 for the framing of charges. When the order of suspen- sion itself shows that Government was of the view tha't such a prima facie ca»~ for departmental procee- dings 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 ser- vice an order of suspension may be made when 'discipli- 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 be- longs to 'the All India Services or to one of tbe humble cadre. It is th.
e 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. " 711 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 alle- ged 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 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 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 : · "It was pointed out that definite charges were framed on Jun£ 6. 1963 and the Government had no authority 712 SUPREME COURT REPORTS [l972] 2_ S. C. R. to suspend the appellant bdore 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 mem- ber 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. ' 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) pres- cribes 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 langu- age 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.
'' It is, however, noteworthy that in that case this Court had a l~ttle earlier come ·to a positive finding that disciplinary proceed- ings had been ac1uallv initia•ed against the appellant. This is what the Court said : "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 A B c D E F G H A B c D E F G ll P. R. NAYAK v. UNION (Duu, J. ) 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 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 Febru- ary, 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 dis- posal of valuable forest lands belonging 1o 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 fae public administration and 'the preservation of our forest wealth no less than in the interests of this particular institutfon.
' The judgment in the above case and the preliminary report of the X-Branch police have disclosed the follow- ing grave charges of serious irregularity and official misconduct on th>~ 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 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 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 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 716 SUPREME COURT REPORTS l 'L"''''J? O''R ;,J/... , ... . ;), ......... 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 dra~tsman 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 disci- plinary proceedings have not been initia! ted but are only contemp- lated. 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 rail- way servants. A Guide 'tO Discipline and Appeal Rules) wh~ch is in identical terms as r. 12(1) (a) and (b) of the 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. The order dated 23 November, 1970 was as follows:- G "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 ". a In order to appreciate the appellant's contentions it is neces- sary t. o refer to Fundamental llule 56(f). Fundamental Rule 56(f) in the·pro. 9Cntfonn. came into.
force with effect from 21 July. P. R. NAYAK V. UNION (Rliy, J. ) 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 i;etain his ·pDSt iJntil ,he has held ·it fQr five . )'. C;l\! S". iFbe contentiop on behalf of the appe\l;mt 11μ\t Jl . mCIJlber . of. '. f. lie ;Indian Civil Service on. COJillpletioti of -35 y 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 :P~llt 'Iiundl! me~l . Rule S6(f) all iIJdjcate thl\t a. member . of _! hjil l\t:1. d. i;u1 ;H . Civil. Servi' £? 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 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 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. - The various instances of extension of service of the members. oi the lndian Civil Service on. which the Government relied indi- cate these features. First, 1! he order of extension is of the same· 730 llUPKEllE COURT REPORTS [1972) 2 S. C. R. 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. Article 56S(a) of ihe Civil Service Regulations spoke of 'office' and thereafter Fundamental Rule 56(c)(i) and Funda- mental Rule 56(f) spoke of 'post'. The word 'post' and its pre- vious 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. 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 A c D E F G H A B c D E F H P, R, NAYAK V. UNION (Ray, J. ) 731 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 :- "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 proceed- ings 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- ( a) if the member of the Service is serving under it, pass an order pj;lcing him under suspension". 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 Gov- 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 any- 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 articles of charge against the Government servant. 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 conside- ration 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 vances. The courts of law will in the administration of :jUstice protect a person against any arbitrary action of the ·autho- rities. It was also submitted on behalf of the appellant that 732 SUPREME COURT REPOR. TS [1972) 2 S. C. R.
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 tak- ing 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 alle- gation 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 Com- m1ss1on. 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 circum- stances 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. 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 proceed- in11s were i11itiated and commenced only ~ giving the Govern- ment 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 Govern- ment 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 A B c D E F G H A B c P. R. NAYAK V. UNION (Ray, J. ) 733 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- tion. It is really the gravity of the charge which will weigh in ordering suspension. Rule 3(l)(a) does not say that the Gov- cr,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 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. Under Rule 3 (I)( a) the power of the Government is to place 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. Discipli- nary proceedings are c0ntemplated. That is the bash of the order of suspension. In Rule 3 it is said that 'having regard to 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 F authority shall draw up the substance of the imputation of mis- conduct or misbehaviour into defulite and distinct articles . of charge and a statement of the imputation of misconduct or mis- behaviour 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 G rnca,1 the same thing. Rule 3 is of much wider amplitude inas- much 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 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 disci- plinary proceedi,ng shall be deemed to be instituted when the 1~1643SupCT/72 734 SUP}lBME COURT REPORT~ [1972] 2 s. c. R. 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 recov~ry 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 b~a 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 disci- plinary matter so that the officer concerned does not gain custody or control of papers or take any advantage of position er power in service. In S. Govinda Menon v. The Union of India & Anr. (') allega- tions 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 con- tended' that the order of suspension was bad because 'there was no fonnal order of the Government for instituting disciplinary pro- c. :edings. The order of suspension stated that preliminary inquiries had shown prima facie that the officer is guilty of corrup- tion, 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 neces- sary 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. A B c D 'E F' G B A B c D E F G H P. R. NAYAK v. UNION (Ray, J. ) 735 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· 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. In the case of Government of India, Ministry of Home Affairs and Ors. v. Tarak Nath Ghosh(') this Court had to consider . whe- ther 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 pres~nt Rule 8 or whether the Government was entitled to place an officer under suspension even before that stage had been reached after the preliminary investiga- tion had been made into the conduct of the officer concerned follow- ing allegations of corrupt practice levelled against him.
The ear- lier decisions of this Court were referred to and thereafter it was said 'Merely because the order mentioned that disciplinary proceed- ings 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 that the situation in the present case had not reached a stage which called for an order 0 J suspension. In substance disciplinary pro- ceedings 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 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 ser- vice an order of suspension may be made when 'disciplinary proceedings were contemplated' should not lead us to take the 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 Al! India Service and a member of :a State Service or a Railway Service". (I) [1967] 2 S. C. R. 566. (2) AIR. 1971 S. C. 823. 736 SUPREME COURT REPORTS (1972] 2 s,c:R.
These decisions indicate the reasons for suspension of a mem- ber of the Service against whom disciplinary proceedings are con- t~mplated. The iJllstitution on inquiry procee,dings and the impo- sition 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 penal- ties. 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 prelimi- nary 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. In Champak/al Chimanlal Shah v. The Union of lndia(1) this Court made certain observations on the meaning of disci- plinary 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 disci- plinary 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 Com- mission made the preliminary enquiry. The Takru Commission gave the report. The Government considered the report. TIJ. e appellant appeared before the Takru Commission. The appel- lant 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. ll c D E F G H A I D G H P. R. NAYAK V. UNION (Ray, J. ) 737 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 proceed- ing could not be said to be a disciplinary matter. That argument was not accepted. It was said that suspension is of two kinds. It is either a punishment or an interim measure pending a depart- mental enquiry or pending a criminal proceeding. Suspension as a punishment is a disciplinary matter.
Suspension peinding a de- partmental 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 sus- pension 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_us~ension pending a departmental enquiry cannot be but a matter mt1mately relattd to disciplinary matters'. 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. 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 Govern- ment 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. 738 SUPREME COURT REPORTS [1972J 2 s. c. R. 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 proceed- ings 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 pro- ceedings 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 discipli- nary 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 disci- plinary proceedings in the form of departmental inquiry are con- templated. 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 depart- mental 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 depart- mental 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. B c D E F Therefore, in the facts and circumstances of ·the present case G the order of suspension was properly and validly made. Discipli- nary 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. H The fourth contention on behalf of the appellant was that the order of suspension was bad inasmuch as there was no order under 'C' A B c D E F G H 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 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 con- comitant of the order of suspension. Furthermore, the language of Fundamental Rule 56 (ff) . is that notwithstanding anything con- tained in clauses (a), ( d) ·anq (f) a member of the Indian Civil 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 anything contained in clause (f) '. Secondly, the language of Fundamental Rule 56(ff) is that he shall not be required or per- mitted 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 Funda- mental Rule 56(ff) is that the member shall be retained in service until the enquiry into the charges is concluded and the final order is passed. This Coun in State of Punjab v. Khemi Ram(') stressed the importance of passing an order of suspension where a· disci- plinary enquiry could not be concluded before the date of retire- ment. 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.
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:,-- 740 SUPREME COURT REPORTS ( 1972] 2 S. C. R.
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). 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 per- mitted 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 autho- rity. 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 mem- bers 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 R~gu\at~ons was rehect on by the appellant to show that there was d1scnmma- tion 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 per- mitted 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 A B c D E F G H A. B c D P. R, NAYAK V. UNION (Ray, J. ) 741 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.
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 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 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 disci- plinary proceedings once the retirement takes into effect. That is why the.
appellant was placed under suspension. There is no violation of Article 14: The contentions of the appellant fail. The appeal is therefore dismissed. Parties will pay and biear their own 'Costs. ORDER 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. V. P. S.
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