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PETITIONER: A.   K. K. NAMBIAR

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT: 28/10/1969

BENCH: RAY, A.N. BENCH: RAY, A.N. SHAH, J.C. SHELAT, J.M. VAIDYIALINGAM, C.A. HEGDE, K.S.

CITATION:  1970 AIR  652            1970 SCR  (3) 121  1969 SCC  (3) 864  CITATOR INFO :  F          1974 SC1957  (12)  RF         1991 SC1557  (21)

ACT: All India Service (Appeal and Revision) Rules, 1955-Rule  7- Order  of  suspension  of  officer  charged  with   criminal offence--Order is under P.    7(3)  and  not  R.   7(1)-Mala fides--Proof of--Affidavits, verification of.

HEADNOTE: The appellant was appointed to the Indian Police Service  in 1935.  in November 1956 he was posted in Andhra  Pradesh  as Inspector-General of Police and in August 1967 he was posted as  Special  Inspector-General  of Police  for  revision  of Police Standing Orders.  In that year the Chief Minister  of Andhra  Pradesh  ordered  the Chief  Secretary  to  make  an enquiry  with  regard  to certain  allegations  against  the appellant.  The Chief Secretary recommended that the  matter be  referred to the Vigilance Commissioner who advised  that the  matter  be  investigated  by  the  Central  Bureau   of Investigation.  Thereafter the said Bureau made an  enquiry, considered  the appellant’s explanations and made a  report. In  July  1968  the Government of India,  Ministry  of  Home Affairs   placed  the  appellant  under   suspension.    The appellant  filed a writ petition in the High Court at  Delhi and  failing  there  filed an appeal  in  this  Court.   The appellant’s contentions that fell for consideration were (i) that  under  sub-r.  (1) of R. 7 of the  All  India  Service (Appeal and Discipline) Rules, 1955 the order of  suspension could be made only if disciplinary proceeding was  initiated and  the  Government was satisfied that there should  be  an order;  in the present case the order did not  satisfy  this condition  and  was  therefore  bad;  (ii)  that  the  Chief Minister  of  Andhra  Pradesh was hostile  to  him  and  the investigation  by  the Central Bureau of  Investigation  was conducted  by persons hostile to- him; the Ministry of  Home Affairs  should  not  have relied on the  report  since  the enquiry was initiated and conducted mala-fide.

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HELD, : (i) The order in question had no reference to sub-r. (1)  of  R. 7, but was an order under R. 7(3)  which  states that  a member of the service in respect of or against  whom an  investigation  inquiry or trial 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  the charge.   The  appellant,  as appeared from the First Information Report against him stood charged  with offences, under the Prevention  of  Corruption Act  and the time of occurrence was the period 1960 to  967. There  was  an  investigation and  the  trial  was  awaiting relating to the criminal charge against the appellant.   The order  of  suspension had to be read in the context  of  the entire  case  and the combination  of  circumstances.   This order indicated that-the Government applied its mind to  the allegations,  the  enquiries and the  circumstances  of  the case.   The  appellant  had failed  to  establish  that  the Government acted mala fide.  There was no allegation against any  particular  officer of the Government  of  India  about being  mala fide.  The order of suspension, thus made  under sub-r.  (3) did not suffer from any vice of infringement  of R. 7(1). [124 D-125 B] (ii)The  affidavits  of  the parties  in  the  present  case suffered from the mischief of lack of verification with  the result that the affidavits should C.I./70-9 122 not   be   admissible  in  evidence.   The   importance   of verification is to test the genuineness and authenticity  of allegations  and also to make the deponent  responsible  for allegations.  in essence verification is required to  enable the  court to find out as to whether it will be safe to  act on such affidavit evidence. [125 C-E] The  affidavit  evidence assumed importance in  the  present case because of allegations of mala fide acts on the part of the  respondents.  The appellant did not name any person  of the  Union  of India who acted in that manner  and  did  not implied the Chief Minister as a party.  In order to  succeed on  the  proof  of mala fides in relation to  the  order  of suspension, the appellant had to prove either that the order of suspension was made mala fide or that the order was  made for collateral purposes.  The appellant had neither  alleged nor established either of these features. [125 F-G] The  allegation of mala fide against the Central  Bureau  of Investigation  did not arise for consideration because  what was  in  question  was  not its  report  but  the  order  of suspension  which  satisfied  R.  7(3)  and  was  in  honest exercise of powers. [125 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1406 of 1969. Appeal  from the judgment and order dated April 17, 1969  of the Delhi High Court in Civil Writ No. 611 of 1968. The appellant appeared in person. Jagadish  Swarup, Solicitor-General, R. L. Mehta and  R.  N. Sachthey, for the respondents. The Judgment of the Court was delivered by Ray, J.-This appeal by certificate from the judgment of  the High  Court  at Delhi challenges the order dated  5th  July, 1968 placing the appellant under suspension. The appellant canvassed two grounds : first, that the  order of  suspension was passed on -a report which was  made  mala fide,  and,  therefore,  the order of  suspension  was  bad;

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secondly,  the order of suspension was made  under  sub-rule (1)  of  Rule  7  of  the  All-India  Service  (Appeal   and Discipline)  Rules,  1955, and is, therefore, liable  to  be quashed. The appellant was appointed to the Indian Police Service  in the year 1935.  He was posted as Inspector General of Police of the State of Andhra Pradesh, on 1 November, 1956.  He was ,confirmed as Inspector General of Police, Andhra Pradesh in the  year 1957.  On 14 May, 1966, he reached the age  of  55 years.  ’He, however, continued to work as Inspector General of Police, Andhra Pradesh up to 1 August, 1967.  He was then posted  as  Special  Inspector General  of  Police  for  the revision of Police Standing Orders.                             123 Some  time  in the year 1967 the Chief  Minister  of  Andhra Pradesh  ordered  that the Chief -Secretary should  make  an enquiry  with  regard  to certain  allegations  against  the appellant.    The  Chief  Secretary  recommended  that   the Vigilance Commissioner in the State of Andhra Pradesh  might be  requested  to  look  into  the  matter.   The  Vigilance Commissioner advised that the enquiry should be conducted by an   independent   agency  like  the   Central   Bureau   of Investigation.    The   Central  Bureau   of   Investigation thereafter  made  an  enquiry.   The  appellant  was   given allegations to answer.  The appellant submitted  explanation and was examined.  The Central Bureau of Investigation  made a report on the enquiry. On 1 1 July., 1968 the Government of India, Ministry of Home Affairs   made   an  order  placing  the   appellant   under suspension.   The appellant alleged as follows.   The  Chief Minister  of  the State of Andhra Pradesh was  inimical  and hostile  to  the  appellant since the time  of  the  General Elections  in  the  year 1967.   The  investigation  by  the Central Bureau of Investigation was conducted by persons who were  hostile  to  the  appellant.   The  Ministry  of  Home Affairs’ Government of India, should not have relied on  the report because the initiation and the conduct of the enquiry were  motivated mala fide on the part of the Chief  Minister of the State and other persons. The  other contention of the appellant was that  under  sub- rule  (1)  of Rule 7 of the All-India  Service  (Appeal  and Discipline)  Rules,  1955 the order of suspension  could  be made  only if disciplinary proceeding was initiated and  the Government  was satisfied that there should be an order  and in the present case the order did not satisfy the provisions of the rule, and therefore, the order is bad. The pre-eminent question in this appeal is whether the order of  suspension  is  in infraction of Rule 7. Rule  7  is  as follows               "(1)  If  having regard to the nature  of  the               charges and the circumstances in any case  the               Government  which initiates  any  disciplinary               proceeding  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               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               124

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             Provided  that  in  cases  where  there  is  a               difference   of  opinion  between  two   State               Governments  the matter shall be  referred  to               the Central Government whose decision  thereon               shall be final.               (2)..............................               (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". Rule   7   sub-rule   (1)   contemplates   suspension   when disciplinary  proceeding is initiated and the Government  is satisfied  that  it is necessary to place a  member  of  the Service under suspension.  It was contended by the appellant that the order of suspension was made under sub-rule (1)  in the present case without any disciplinary proceedings.   The order does not have any reference to sub-rule (1) of Rule 7. The order recites first that there are’ serious  allegations of   corruption  and  malpractice  against  the   appellant, secondly  that  the enquiry made by the  Central  Government revealed  that there is a prima facie case and thirdly  that the  Government  of India after  considering  the  available material and having regard to the nature of the  allegations against  the  appellant, the circumstances of  the  case  is satisfied  that it is necessary and desirable to  place  the appellant under suspension. At the hearing of the appeal Mr. Solicitor General  produced the  correct copy of the First Information Report  dated  17 August,  1967  under  section 154 of the  Code  of  Criminal Procedure.   It  will  appear  from  the  report  that   the appellant was charged with offences under the Prevention  of Corruption  Act,  1947 and the time of  occurrence  was  the period 1960 to 1967. Sub-rule  (3) of Rule 7 states that 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.    The   appellant contended  that the- appellant was not suspended under  sub- rule (3) of Rule 7. That is a contention The facts are  that there  was  an  investigation  and  the  trial  is  awaiting relating  to a criminal charge against the  appellant.   The order  of  suspension has to be read in the context  of  the entire case and 1 2 5 combination of circumstances.  This order indicates that the Government   applied  its  mind  to  the  allegations,   the enquiries and ;the circumstances of the case.  The appellant has failed to establish that the Government acted mala fide. There is no allegation against any particular officer of the Government  of India about acting mala fide.  The  order  or suspension  was made under subrule (3) and does  not  suffer from any vice of infringement of Rule 7. The appellant made allegations against the Chief Minister of Andhra  Pradesh and other persons some of whose  names  were disclosed  and  some  of whose  names  were  not  disclosed. Neither  the Chief Minister nor any other person was made  a

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party.   The appellant filed an affidavit in support of  the petition.   Neither  the  petition  nor  the  affidavit  was verified.  The affidavits which were filed in answer to  the appellant’s petition were also not verified.  The reason for verification  of affidavits are to enable the Court to  find out  which facts can be said to be proved on  the  affidavit evidence  of,  rival parties.  Allegations may  be  true  to knowledge or allegations may be true to information received from  persons or allegations may be based on  records.   The importance  of verification is to test the  genuineness  and authenticity  of allegations and also to make  the  deponent responsible  for  allegations.  In essence  verification  is required  to enable the Court to find out as to whether  ’it will  be  safe to act on such affidavit  evidence.   In  the present case, the affidavits of all the parties suffer  from the mischief of lack of proper verification with the  result that the affidavits should not be admissible in evidence. The  affidavit  evidence assumes importance in  the  present case because of allegations of mala fide acts on the part of the  respondents.  The appellant alleged that the  Union  of India  made the order of suspension because of the  pressure of  the Chief Minister of the State of Andhra Pradesh.   The appellant, however, did not name any person of the Union  of India who acted in that manner and did not implied the Chief Minister  as a party.  In order to succeed on the  proof  of mala  fides  in  relation to the order  of  suspension,  the appellant  has to prove either that the order of  suspension was made mala fide or that the order was made for collateral purposes.   In  the  present  case,  the  appellant  neither alleged nor established either of these features. The  appellant  contended  that the report  of  the  Central Bureau  of Investigation was made mala fide.  The  appellant appeared  before the investigation authorities.  We ate  not concerned  with  the correctness and the  propriety  of  the report.   We  have  only to examine  whether  the  order  of suspension was warranted by the rule and also whether it was in  honest  exercise  of powers.  The  order  of  suspension satisfied both the tests in the present case. 126 In view of the fact that the criminal case is pending, it is desirable  not  to  express any opinion on  the  merits  and demerits of the charges as also the rival contentions of the parties because such an opinion may cause prejudice. The  appellant  raised a contention as to the vires  of  the Delhi  Special  Police  Establishment  Act,  1946  and   the validity  of  the investigation.  In view of the  fact  that sanction   for  the  trial  is  pending  pursuant   to   the investigation  under the First Information Report  dated  17 August,  1967 the appellant did not want a decision on  this point in this appeal because the appellant would raise  that contention  in the criminal case.  We have, therefore,  left open   the  contention  as  to  the  Delhi  Special   Police Establishment  Act, 1946 to enable the appellant to  agitate that contention, if so advised, in the criminal trial. The  appeal, therefore, fails and is dismissed.  In view  of the  fact  that there was no order as to costs in  the  High Court,  we  are of opinion that each party should  bear  its costs in this Court. G.C.                                Appeal dismissed.                             127