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PETITIONER: D. D. SURI

       Vs.

RESPONDENT: A. K. BARREN & ORS.

DATE OF JUDGMENT06/02/1976

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1976 AIR 1069            1976 SCR  (3) 350  1976 SCC  (1) 967

ACT:      Prevention of  Corruption Act, 1947-Sec. 5(2)-All India Services  (Discipline  and  Appeal)  Rules  1955-Rule  7(3)- Suspension   order    without    following    administrative instructions whether  valid-Meaning of investigation-Inquiry and trial-Whether suspension comes to an end on retirement.

HEADNOTE:      The appellant  was an  erstwhile member  of the  Indian Administrative Service  in the cadre of the State of orissa. At the  relevant time  in the  year 1967,  he was serving as Commissioner of  Land  Reforms,  orissa.  According  to  the appellant he  had disputes,  differences and  animosity with respondent No.  1, the  Chief Secretary to the Government of orissa and  respondent No.  2 who  was at  the relevant time Director  of  Vigilance  and  Additional  Secretary  to  the Government of  orissa.  The  First  Information  Report  was lodged against the appellant under s. S(2) of the Prevention of Corruption  Act, 1947,  on  24-11-1967.  The  appellant’s house was searched on 27-11-1967. An order of suspension was made against  the appellant  by the  Government of orissa on 28-11-1967  under  rule  7(3)  of  the  All  India  Services (Discipline and Appeal) Rules, 1955. The Writ Petition filed by  the  appellant  against  his  order  of  suspension  and investigation was  dismissed by  the High  Court in  limine. This Court  allowed an  appeal filed by special leave by the appellant against  the High  Court judgment and directed the High  Court   to  admit  and  dispose  of  the  petition  in accordance with law.      The State  Government approached the Central Government to accord  sanction for  prosecution of  the  appellant.  In spite of  reminders, the Central Government neither accorded the sanction  nor refused  it.  Appellant  was  compulsorily retired by  the Government in 1971. Thereafter, charge-sheet was submitted against him in the Court of the Special Judge, Sambalpur. The trial concluded but because of the stay order passed by  this  Court  judgment  could  not  be  delivered. Against  the   order  of   the  compulsory  retirement,  the appellant filed  a writ  petition in  the Delhi  High  Court which was  dismissed by  a learned  single Judge and against which a  Letters Patent  appeal is  pending. The orissa High

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Court dismissed  the writ  petition of  the appellant on the ground of  it having  become infructuous since the appellant was no  longer  in  suspension  since  he  was  compulsorily retired. The  High Court  also did not think it necessary to examine  the  legality  of  the  investigation  against  the appellant as chargesheet had already been submitted.      In an  appeal by special leave the appellant contended:      The suspension  order may  be quashed  on the following grounds:           (1)  It was  passed without  following the various                Governmental instructions on the point.           (2)  The order was in violation of rule 7(3).           (3)  The order was malafide. ^      HELD:  (1)   It  is  true  that  all  the  instructions contained in  the circulars issued by the Central Government do not  seem to  have been  strictly followed.  That  would, however, not  invalidate or  nullify the order of suspension made under  rule 7(3).  In dealing  with the  cases of  high officers of  the Administrative  Service care  ought to have been taken to follow the instructions as far as possible. On the facts  of the  present case.  however. failure to follow the  instructions  fully,  does  not  render  the  order  of suspension per se invalid. [353GH]      (2) Under  rule 7(3) a member of the Service in respect of or  against  whom  an  investigation,  enquiry  or  trial relating to  a  criminal  charge  is  ponding,  may  at  the discretion of the Government be Placed under suspension. The 351 expression investigation,  enquiry and  trial are well known in the  realm of  the A  criminal  law  under  the  Criminal Procedure Code.  In the  present case, the First Information Report was lodged and the search warrants were issued before the suspension  orders were  passed. Most of the allegations against the  appellant were  in relation to his alleged acts of corruption  and misuse  of his official position. Whether the allegations are true or false is irrelevant. Order under rule 7(3) was, therefore, legal and valid. [354A-E]      (3)  The  suspension  order  came  to  an  end  by  the compulsory retirement  of the  appellant.  After  retirement from service  he could  no longer  be  deemed  to  be  under suspension. Since we are remitting the case back to the High Court we  permit the  appellant to raise the question of his salary and  emoluments during  the suspension  period to  be raised in  the High  Court. The  counsel for  the appellant, however, assured  this Court  that if the appellant would be exonerated of the charges levelled against him and acquitted in the  criminal proceedings  the State Government would pay him  his   full  pay   and  allowances  for  the  period  of suspension. [354G-H, 355B-C]      (4) We do not think it advisable to decide the point of malafide in  the absence  of the  judgment in  the  criminal cases.  Since   the  two   matters  are  so  interwoven  and interconnected that it would be expedient for the High Court to decide  this issue after the judgment is delivered in the criminal trial. [3 55D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 292 of 1973.      (Appeal by  special leave  from the  judgment and order dated the  25-4-1972 of  the orissa High Court of Judicature at Cuttack in O.J.C. No. 82 of 1968).

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    S. N. Andley and A. Subbarao for the appellant.      M. C.  Bhandare and B. Parthasarathi for respondent No. 3.      M/s. S. N. Prasad and Girish Chandra for respondent No. 4.      The Judgment of the Court was delivered by E      UNTWALIA, J.-The  appellant in  this appeal  by special leave is  Shri D.  D. Suri-an erstwhile member of the Indian Administrative Service  in the cadre of the State of Orissa. Shri A.  K.  Barren,  I.A.S.  the  Chief  Secretary  to  the Government of  orissa at  the relevant time was impleaded as respondent no.  1. He  died  during  the  pendency  of  this appeal. Therefore,  his name is directed to be expunged. For the sake  of convenience,  however, he  will be  referred to hereinafter in this judgment as respondent no. 1. Shri S. K. Ghosh, l.P.S.  respondent no.  2 was  at the  relevant  time Director  of  Vigilance  and  Additional  Secretary  to  the Government  of   orissa  in   the  Political   and  Services Department. He  has since  retired and  no  notice  of  this appeal could  be served on him. Even so the appeal proceeded to  hearing   as  for  the  disposal  of  this  appeal,  his appearance  was  not  necessary.  The  State  of  orissa  is respondent no.  3, and the Government of India is respondent number 4.  Respondents 5  and 7  are other  officers of  the Government of Orissa.      It is  an  unfortunate  protracted  litigation  with  a chequered history.  Yet we  do not find it possible to bring it to conclusion by our judgment.      The   appellant    was   appointed    to   the   Indian Administrative Service  and joined as an Additional District Magistrate  in  the  State  of  orissa  in  November,  l950. According to  his case  due to  some actions  which he  took against  some  big  political  persons,  he  incurred  their displeasure 352 in the  year 1952.  Sometime after  he came on deputation to the centre  but went  back to  orissa in April, 1965. At the relevant  time   in  the   year  1967   he  was  serving  as Commissioner of  Land Reforms  orissa. According to his case he had  disputes, differences  and animosity with respondent no. 1 and later with respondent no. 2 also. The appellant by stating very  many facts,  which are  not  necessary  to  be enumerated in  this judgment  endeavoured to make out a case of male  fides against respondents 1 and 2 and asserted that he was  put to  trouble and  unwarranted and illegal actions were taken  against him by or at the instance of respondents 1 and 2.      A First  Information Report  was lodged  and  Sambalpur Vigilance P.S.  Case No.  23/1967 was instituted against the appellant on  November 24,  1967 under  section S(2)  of the Prevention of  Corruption  Act,  1947.  An  application  for search warrant  was  made  before  the  Additional  District Magistrate, Sambalpur on the same date i.e. 24-11-1967 and a search warrant  was issued. The appellant’s house at Cuttack was searched on and after 27-11-1967. An order of suspension was made  against the  appellant by the Government of orissa on the  28th November, 1967 under Rule 7(3) of the All India Services (Discipline  and  Appeal)  Rules,  1955-hereinafter referred to  as  the  Rules.  The  appellant  filed  a  writ petition (OJC  82/1968) in the orissa High Court in January, 1968  to   challenge  the   order  of   suspension  and  the investigation made  and  proceeded  against  him.  The  writ application was  dismissed  by  the  orissa  High  Court  in limine. Civil  Appeal No.  679/70  filed  by  special  leave against the  order of  the orissa  High Court was allowed by

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this Court  on 22-l0-1970. The writ application was directed to be admitted and disposed of in accordance with law.      Certain  subsequent   developments   and   events   are necessary to  be  noted.  The  State  Government  moved  the Central Government  on November  23, 1968  after stating the facts in  detail to  accord sanction  for prosecution of the appellant as  the materials  collected during  investigation revealed a  prima facie  case in  relation to the charges of cor ruption  and misuse  of his  official  position  by  the appellant. In  spite of  reminders  the  Central  Government neither  accorded   sanction  for  the  prosecution  of  the appellant nor  refused it.  Without sanction  of the Central Government no  Charge-Sheet could  be submitted  against the appellant  for  his  prosecution  so  long  he  remained  in government ser  vice. It  seems. however, that the appellant was compulsorily  retired by  the appropriate  government on June 9,  1971. Thereafter  on November  8, 1971 Charge-Sheet was submitted against him in the Court of the Special Judge, Sambalpur.  In   Transfer  Petition   No.  2/73  this  Court transferred the  case to  the file of another Special Judge. On the  splitting up  of the  original  case  the  trial  of several cases  proceeded against  the appellant in the Court of the Special Judge. The trial concluded but because of the stay order  passed by  this Court,  judgment  could  not  be delivered until  the disposal  of this  appeal and  LPA 3/73 pending in  the Delhi  High  Court.  Against  the  order  of compulsory retirement,  the appellant  fired a writ petition in the Delhi 353 High Court.  It was  dismissed by  a learned single Judge on November 16,  1972. LPA  3/73 is  directed against  the said order of dismissal      A Bench of the orissa High Court by its order dated the 25th  April,   1972,  the  order  under  appeal,  has  again dismissed  the   writ  petition   (OJC  82/1968)   as  being infructuous. It  has taken the view that since the appellant has already  retired from  service he  is  no  longer  under suspension. Therefore,  the legality of the suspension order is not  necessary to  be examined.  Nor did  the High  Court think  it   necessary  to   examine  the   legality  of  the investigation against  the  appellant  as  Charge-Sheet  had already been submitted.      Mr. S.  N. Andley,  learned counsel  for the  appellant asked us  to quash the suspension order and strenously urged the following three grounds:           (1)  That it was passed without taking the various                preliminary steps  of prelirninary enquiry or                investigation as  was necessary to be done in                view    of     the    various    governmental                instructions. D           (2)  That the  order was  not warranted by and was                in violation of Rule 7(3) of the Rules.           (3)  That  the   charges  levelled   against   the                ‘appellant were  all baseless,  frivolous and                false. They  were levelled and the suspension                order was made mala fide.      In support  of the  first submission  our attention was drawn to  the various  executive instructions  issued by the Central Government as also the State Government of orissa to show as  to how  and in what manner preliminary steps had to be taken  and enquiry  made by  the governmental authorities concerned before putting a government servant and especially a member  of the  Administrative Service  under  suspension. Counsel submitted  that nothing was done in accordance. with those  instructions   before  the   lodging  of   the  First

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Information Report  on November  24, 1967.  The  action  was taken  male   fide  in   all  haste  without  observing  the requirements of  the  law  as  contained  in  the  executive instructions. On the other hand, Mr. M. C. Bhandare, counsel for the  Government of orissa pointed out that the Vigilance Department of  the state  Government  had  made  preliminary enquiries and  then taken  action. We  do  not  consider  it necessary to  discuss in  any detail  or record any definite finding one  way or  the other  in respect  of this  bone of contention between the parties. We may only observe that all instructions contained  in the various letters and circulars of the  Central Government do not seem to have been strictly followed. But  that will not invalidate or nullify the order of suspension  made under Rule 7(3) of the Rules. In dealing with the.  cases of  high  officers  of  the  Administrative Service, care  ought  to  have  been  taken  to  follow  the instructions as  far as  possible. Yet  on the facts of this case we  are not prepared to hold that failure to follow the instructions fully,  per-se, made  the order  of  suspension invalid. 354 Sub-rule 1  of Rule  7 of the Rules provides for the placing under suspension  a member  of the  service against whom any disciplinary proceeding  has been initiated. Under that sub- rule without  the initiation  of the disciplinary proceeding an order of suspension could not be made. Under sub-rule 2 a member of  the service  who is  detained in official custody for a  period longer  than 48  hours is to be deemed to have been suspended  by the  government concerned.  We shall  now read sub-rule 3 of Rule 7.           "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." Under the  sub-rule aforesaid  it is  clear that a member of the service can be placed under suspension if against him an investigation, inquiry or trial relating to criminal charges is pending.  The expression  ’investigation’, ’inquiry’,  or ’trial’ are  well-known in  the realm  of the  criminal  law under the  Code of  Criminal Procedure.  In the instant case when a  First  Information  Report  was  filed  against  the appellant and  steps  were  taken  for  obtaining  a  search warrant for  the search  of his  house, investigation within the meaning of Rule 7(3) became pending on and from November 24, 1967.  The suspension order, therefore, made on November 28, 1967  was well  within the  ambit of  the power  of  the government under  the said  provision of  law. Most  of  the charges levelled  against the  appellant, and at this stage, we do  not know  whether they  were right  or wrong, true or false, were  in relation  to his  alleged acts of corruption and misuse of his official position.      In our  view the making of the suspension order against the appellant  under rule  7(3) of  the Rules  was legal and valid. But  did It  come to  an end,  if so, when ? The rule provides that  the suspension  order  may  last  "until  the termination of  all proceedings  relating to"  the  charges. Appellant’s counsel  submitted that,  as mentioned in one of the  letters   of  the   State  Government  to  the  Central Government, the  investigation was  complete on November 23, 1968, hence  on the  termination of  the  investigation  the

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suspension  order  terminated.  We  have  no  difficulty  in rejecting this  argument as  unsound. Under  rule  7(3)  the suspension  order   can  be   made  to  continue  until  the terminanation of all proceedings viz. investigation, inquiry or  trial  which  may  follow  the  investigation.  Strictly speaking, the investigation could not be said to be complete until the submission of the Charge-Sheet. Factual completion of the investigation in November, 1968 did not terminate all proceedings in  relation to the charges levelled against the appellant. But obviously the suspension order came to an end by  the   compulsory  retirement  of  the  appellant.  After retirement from  ser vice he could no longer be deemed to be under suspension. 355      During the-hearing of the appeal and in view of certain new stands  A taken  in the  petition filed in this Court by the appellant,  an interesting  point cropped up and that is this. What  was the  effect of  the  appellant’s  compulsory retirement on  his suspension ? He was not prosecuted before his retirement.  What is  to be the effect of his retirement on the  appellant’s pay and allowances for the period of his suspension viz.  between November 28, 1967 and June 9, 1971. Does rule  9 of  the Rules  cover the appellant’s case’?’ If so, is  he entitled to an order in his favour for paying him full pay  and allowances  for the said period because he was made to  compulsorily retire  without any  stigma and not by way of punishment ? We did not feel persuaded to decide this aspect of  the matter  for the  first time  in this  appeal. Since we  are remitting  the case back to the High Court, we permit  the   appellant  to   raise  this  point  there,  if necessary, by  amendment  of  his  writ  petition.  We  may, however, hasten  to add  that the  counsel for  the State of orissa assured  us that if the appellant would be exonerated of the  charges levelled  against him  and acquitted  in the criminal proceedings, then the State Government will pay him his  full   pay  and   allowances  for  the  period  of  his suspension.      Evidence at the trial is over and only the judgment has to be  delivered. Without  the aid  of the  judgment in  the criminal cases,  we did not find it advisable or possible to decide the  third point urged on behalf of the appellant. On the materials  in the  records of  this case, it will not be possible to  say  that  the  charges  levelled  against  the appellant were  false and  that action was taken against him mala  fide.   The  two   matters  are   so  interwoven   and interconnected that  we think  it  expedient  to  leave  the matter for  a fresh  decision by  the High  Court after  the judgment is delivered at the criminal trial which is already concluded. We  vacate the  order of  stay made by this Court and direct  the Trial  Judge to deliver his judgment without any further  delay. The  High Court,  if necessary,  will go into the  question of  mala fides when the case goes back to it on  remand and  it will do so taking note, inter alia, of the judgment in the criminal cases.      Nothing we  have said  in this  judgment  is  meant  to prejudice either party in the disposal of the letters patent appeal  pending  in  the  Delhi  High  Court  in  which  the appellant is  persuing his  challenge to  the order  of  his compulsory  retirement.  But  it  will  be  desirable,  may, necessary to dispose of LPA 3/1973 pending in the Delhi High Court at  a very early date so that the judgment may be made use of  by .  either party, if necessary, in the orissa High Court in aid of the disposal of the case being remitted back by us to that court.      In the result we allow this appeal, set aside the order

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of the  High Court,  remit the  case back  to it  for  fresh disposal in  the light of this judgment. We make no order as to costs. P.H.P.                                       Appeal allowed. 356