http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 40  

PETITIONER: P. R. NAYAK

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT07/12/1971

BENCH: DUA, I.D. BENCH: DUA, I.D. MITTER, G.K. PALEKAR, D.G. SIKRI, S.M. (CJ) SHELAT, J.M. RAY, A.N.

CITATION:  1972 AIR  554            1972 SCR  (2) 695  1972 SCC  (1) 332

ACT: Civil  Service--Member of Indian  Civil  Service--Suspension of. All  India Services (Discipline and Appeal) Rules,  1969  r. 3--Scope   of--If  civil  servant  can  be  suspended   when disciplinary proceedings are in contemplation. Fundamental  Rules, rr. 56(f) and 56 (ff)--Scope  of--if  r. 56(ff) ultra vires Art. 14 of the Constitution.

HEADNOTE: The appellant was a member of the Indian Civil Service,  and under F.R. 56(f) he was due to retire on November 25,  1970. The question whether a prima facie case against him was made out  with  respect  to certain charges  was  referred  to  a Commission  under the Commission of Enquiries Act, 1952,  in October  1970.   On  November  3,  1970,  he  expressed  his willingness  to accept extension of service by 4 months  and his service was extended till March 25, 1971.  The appellant submitted   his  explanation  to  the  Commission  and   the Commission  after considering it, made an interim report  in January  1971,  that a prima facie case had  been  made  out against the appellant.  On March 23, 1971, an order was made Linder r. 3 (1) (a) of the All India Services (D & A) Rules, 1969 saying whereas disciplinary proceedings against Shri P. R. Nayak, I.C.S. are contemplated...... the  President...... hereby places 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 :  (1)  the order  was violative of r. 3 of the All India Services (D  & A)  Rules; (2) Under F.R. 56(f) the date of  retirement  was fixed as rigid and the appellant having retired on  November 25,  1970 no further action could be taken against him as  a member  of  the I.C.S.; (3) his retention in the  post  only amounted  to reemployment; (4) since he became Secretary  in the Ministry of Works, Housing and Urban Development in 1969 he  should have been retained in that post for full 5  years

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 40  

till 1974 under the proviso to F.R. 56(f), and the extension for  four  months  only  was  illegal-,  (5)  the  order  of suspension  without  specifically  denying  his  request  to retire  on  March  25, 1971, was  defective;  and  (6)  F.R. 56(ff)-by  which an officer like the appellant under  orders of  suspension  is not to be permitted to  retire  till  the enquiry against him is concluded-is ultra vires. HELD:     (Per  S. M. Sikri, C.J., J. M. Shelat, I.  D.  Dua and [G. Palekar, JJ.) : The appeal must succeed on the first contention, 709 D-E] (a)  There is no inherent power of suspension in Government, and  the  only  rule on which reliance was  placed  for  the appellant’s suspension is r. 3 of the All India Services  (D JUDGMENT: (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 compe- 696 tenice  of the Government, but the impugned order  seriously affects sonic of the appellant’s rights and privileges under the conditions of his service. namely; (i) During the period of  suspension  he is not entitled to his  full  salary  but only to some allowances; (ii) he is not permitted to retire; (iii) in order to get subsistence allowance he is prohibited from  engaging  in  any  other  employment,  profession   or vocation and (iv) he is prohibited from leaving headquarters without   prior  permission  of  Government.   Since   these prejudicial  consequences automatically flow from the  order of  suspension, the clear and explicit language of the  rule must  not be strained to the appellant’s prejudice so as  to authorise   his   suspension  on   mere   contemplation   of disciplinary proceedings. [714 D-H] Sub-rule  (1)  (a) of r. (3) empowers the  Government  which initiated   any  disciplinary  proceeding  to  place   under suspension  a  member  of  the  service  against  whom  such proceedings   are  started.   The  language  is  plane   and unambiguous  and  does not suggest that  suspension  can  be ordered   merely   because  disciplinary   proceedings   are contemplated.  The language of sub-rr. (4) to (7) also  does not   authorise  suspension  merely   because   disciplinary proceedings are contemplated.  The scheme underlying r. 3 is indicative of the intention of the rule-making authority  to restrict  its operation to those cases in  which  Government has   sufficient   material,   whether   after   preliminary investigation or otherwise, and the disciplinary proceedings have  in fact commenced, and not merely when they  are  con- templated. [709 E-H; 710 A-C] (d)  The view taken in Tarak Nath Ghosh’s case (A.I.R.  1971 S.C. 823), that under r. 7(1) of the All India Services (D & A) Rules, 1955replaced by the present ir. 3(1) of the  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 Menon’s case the order of suspension was held also to be the order initiating disciplinary proceedings.  The legality  of a  composite order both initiating disciplinary  Proceedings and suspending Govinda Menon was not questioned in the case. [710 C-E; 712 G; 714 A-B] (e)  Rule 12 of the Central Civil Services  (Classification, Control and Appeal) Rules, 195T, provides for suspension  of a  Government  servant pending disciplinary  proceedings  or when  a  disciplinary  proceeding  is  contemplated.    This

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 40  

phraseology  has  been retained in the  corresponding  1965- rule.  just  as  the  phraseology in  r.,  7  (dealing  with suspension during disciplinary proceedings) in the All India Services  (D  &  A) Rules, 1955, has been  retained  in  the corresponding  r. 3 of the 1969-rules.  Courts  may  presume that  the  draftsman knew of the existence  of  the  various rules,  and  if  with  that  knowledge  he  used   different phraseology in the respective rules. it can be assumed  that the  actual  words  used  in  the,  different   rules   were purposely  selected  to express precisely intention  of  the rule making authority. [715 A-H; 716 A-B] (f)  The  existence  of r. 40(1) of the  Railway  Protection Force  Rules, 1959. providing for suspension of a member  of the  Force  when investigation into charges against  him  is contemplated.  further fortifies our interpretation of r.  3 of the All India Services (D & A) Rules, 1969. [716 In   this  view,  the majority did not  consider  the  other contentions.] (Per A. N. Ray and G. K. Mitter, JJ.) dissenting: The appeal must be dismissed. 697 (1)  (a)  The  three  features of r., 3  of  the  All  India Services  (D & A) Rules, 1969, arc, (i) the authority  which places a member of the service under suspension, namely, the Government which initials any disciplinary proceedings; (ii) the time when the order is made, namely, when the Government is  satisfied  that it is necessary or  desirable  to  order suspension; and (iii) the person against whom ’the order  is made,  namely, the member of the service against  whom  such proceedings  are  started. The words  ’which  initiates  any disciplinary proceedings’ and ’against whom Rich proceedings are  started’ are merely descriptive of the  Government  and the  member  of  the service,  respectively.   There  is  no restriction  on  the  power  of  suspension  by  making   it dependent on the condition precedent of the commencement  of inquiry  into  articles  of charge  against  the  Government servant.   The rule does not say that the  Government  which has initiated disciplinary proceedings may order suspension, or  that  a member against whom such proceedings  have  been started can be suspended. [731 C-F] (b)  The   provision   cannot   be   interpreted   by    the consideration  that tile powers may be abused  by  arbitrary exercise, because, the victim of any such arbitrary exercise has a right to come to court and the court will protect  him against any mala fide action. [731 G-H] (c)  The  order  of suspension indicates that  President  of India  was satisfied that it was necessary and desirable  to suspend  the appellant on an objective consideration of  all the  available  material and that the order was  not  passed merely to humiliate the appellant. [732 A, E-F] (d)  The  sub-rules  to  r. 3 establish that  the  power  of suspension is exercisable in instances other than an enquiry under   r.  8,  for  example,  when  criminal  charges   and investigation  or trial are pending.  That is, there can  be suspension earlier than the trial during investigation. [733 A-B] (e)  Rule 8 of the Rules provide,., that when it is proposed to bold an enquiry, the disciplinary authority shall draw up articles of charge, while r. 3 requires regard to the nature of  charges.   The meaning of the word charge’  in  the  two expressions  is not the same.  Rule 3 is of wider  amplitude as  it  deals with the stage of a prima facie case  and  the word  charges  have  the wider meaning  of  accusations  and amputations. [733 G-H] Govinda  Menon  v.  Union of India,  [1967]  2  S.C.R.  566,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 40  

followed. (g)  Rules  3, 7, 8 and 9 indicate the different  stages  of disciplinary    proceedings.     Therefore,     disciplinary proceedings can be said to have been started when complaints about the misconduct of a Government servant are entertained followed  by  a  preliminary  enquiry  culminating  in   the satisfaction  of the Government that a prima facie case  had been made out for framing formal charges.  No formal  order is necessary for initiation of disciplinary Proceedings  and the  order of suspension, in the context of the  preliminary investigation  and a prima facie case can itself be  treated as   an  initiation  of  disciplinary   proceedings.    Such suspension   is  not  a  punishment,  but  is  in   aid   of disciplinary  proceedings and is ordered to facilitate  free investigation  and  collection of evidence.   When  such  an order of suspension itself shows that the Government was  of the view that a prima facie case had been made out. the fact that  the order also mentions that disciplinary  proceedings are  contemplated makes no difference.  Also, the fact  that in other rules of service an order of suspension may be made when  disciplinary  Proceedings are contemplated,  does  not require  that  a member of an All India  Service  should  be dealt with differently [736 A-C; 737 G-H, 738 A-F] 698 S.   Govinda  Men on v. Union of India, [1967] 2 S.C.R.  566 and  Government  of India v. Tarak Nath Ghosh,  A.I.R.  1971 S.C. 823, followed. Champaklal Chimanlal Shah v. Union of India, [1964] 5 S.C.R. 190  and  Kapur  v. Union of India,  [1964]  5  S.C.R.  431, referred to. (g)  The  explanation  to  r. 6 of the  All  India  Services (Death-cum-Retirement  Benefit) Rules, 1958, states  that  a disciplinary  proceeding  shall be deemed to  be  instituted when charges framed against the pensioner are issued to him, or,  if he has been placed under suspension from an  earlier date,  on  such date, This rule applies  to  all  Government servants  who can be placed under suspension under r.  3  of the  All  India  Services  (D &  A)  Rules-,  1969.   It  is illogical  and  incongruous to hold that in  case  of  other Government servants disciplinary proceedings commenced  when he is placed under suspension, but it will not be so in  the case  of at member of the Indian Civil Service. [733 H;  734 A-C] Therefore,  on  the facts and circumstances of  the  present case the order of suspension was properly and validly  made. [738 G] (2)  The  contention  that  a member  of  the  Indian  Civil Service   on   completion  of  35  years   service   retires compulsorily  and  that  there cannot be  any  extension  of service,  is  opposed  to the language  of  F.R.  56(f)  and inconsistent with the practice in the service.  The  present rule,  and the earlier rules and regulations, indicate  that there  may  be an extension of service beyond  the  date  of compulsory  retirement.   The date of retirement in  such  a case is the extended date. [723 F-H] (3)  Sanction  of retention of post at the end of 35  years, which   is  mentioned  in  F.R.  56(f)  contains   intrinsic authority  for  extension  of’ service,  and  therefore  the appellant’s  extension of service was not a new  ,employment after retirement.. Nor is it a case of a fresh contract, 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  extension in service.  It is incomprehensible how one can be permitted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 40  

to  retain  a  post he was holding at the end  of  35  years service, if ,one has already retired compulsorily at the end of 35 years.  The facts that an officer, when he is retained in  a  post  after  35 years service,  could  not  have  any promotion  or  that  his leave lapses and that  there  is  a change  in  his  entitlement  to  leave,  do  not  make  the extension  of  service a new appointment.   The  service  is continuous with such adjustments as to leave or promotion or posting as are permissible or possible. [724 A-D; 725 C-E] (4)  (a)  The  contention  of  the  appellant  that  he  was entitled to an extension of 5 years is against the terms  of t.  56(f).  The appellant is estopped from challenging  this extension till March 25, 1971.  The appellant himself  asked for  the extension, and has proceeded, in the  petition,  on the basis of the extension and asked for a declaration  that he  retired  from service on March 25, 1971.   The  estopped rightly raised against the appellant in regard to F.R. 56(f) and  56(ff) is that the order of suspension was passed at  a time when the appellant was in service as a result of  being permitted  by the President to be retained in service for  a period of 4 months, pursuant to the appellant’s agreement to an extension. [725 F-H; 726 A-E; 736 G-H]  (b) Though the order of extension did not state as to  what post the appellant held, when his services were extended for 4  months,  he  was  permitted to retain  the  post  he  was holding.  These words mean that he 699 remained  a member of the Indian Civil Service and  that  he was  kept  in the place or position held by him.   The  word ’post’  means in effect ’office’. [728 E-H] (c)  Retention  of post with the sanction of  the  President under  F.R. 56(f) is not a matter of right.   The  practice, shown  by  the  various instances of  extension  of  service establishes,  (i)  that  the order  of  extension  does  not indicate  that  the  person  concerned  is  mentioned   with reference to a particular post, and (ii) that the  extension of  service  is in no case for 5 years..  Therefore,  tinder F.R.  56(f)  the extension in fact can be  for  any  period, which  together with the period for which he held  the  post does not exceed 5 years. [720 H; 730 A-C] (5)  The order of suspension is under r. 3 of the All  India Services  (D  & A) Rules, and F.R. 56(ff) is a  rule  laying down the consequences of the order of suspension.  They  are (i)  F.R. 56(f) is deleted so as not to come into  operation during  the period of suspension inasmuch as the words  used are,  ’notwithstanding anything contained in cl. (f)’,  (ii) the member of the service shall not be required or permitted to retire, and (iii) the member shall be retained in service until  the enquiry into the charges is concluded.  When  the date  of  compulsory  retirement is allowed to  pass  by  an extension  of service under F.R. 56(f), the words  ’reaching the date of compulsory retirement’ in F.R. 56(ff) will apply to the postponed date of retirement, because the actual date of retirement is shifted.  It will be illogical to hold that a  member of the Indian Civil Service cannot retire  because the  order of suspension is before the date of  compulsory retirement,  but when he is on extension of service  he  can retire  even  when an order of suspension has  been  passed. Therefore,  the  order  of suspension means that  he  is  in service,  but  his services are  temporarily  suspended  and hence,  no  retirement  can  take  place.   The  prohibition against retirement is embedded in F.R. 56(ff) and  therefore no  separate  order is required or necessary to  the  effect that  the  appellant shall not be required or  permitted  to retire. [739 A-H; 740 A-B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 40  

(6)  Fundamental  Rule 56(ff) does not violate Art..  14  on the  ground that under the Civil Service Regulation 351A,  a Government  servant  against whom  disciplinary  proceedings were pending could be permitted to retire.  But F.R.  56(ff) reintroduced in 1970 the old cl. (d) of the rule, which  was deleted in 1962.  Under F.R. 56(d) also a Government servant under  suspension  shall  not be required  or  permitted  to retire  on reaching the date of compulsory  retirement,  but shall be retained in service until the enquiry is concluded. That  rule  governed  by the members  of  the  Indian  Civil Service till 1962.  Its restoration by inserting F.R. 56(ff) cannot  be  said to be an infraction of Art. 14.  There  are some  differences  between the members of the  Indian  Civil Service  and  members  of the All India  Services,  but  the differences also indicate that there are special rights  and privileges for members of the Indian Civil Service. [740  B- H; 741 A-C]

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 875 of 1971. Appeal from the Judgment and Order dated May 6, 1971 of  the Delhi High Court in Civil Writ No. 350 of 1971.  K.  Daphtary, B. R. L. Iyengar, J. C. Talwar, S.  C.  Patel and Bishamber Lal, for the appellant. Niren  De, Attorney-General for India, O. P.  Malhotra,  Ram Panjwani and S. P. Nayar, for the respondents. 700 The Judgment of the Court was delivered by Dua,  J. This appeal on certificate of fitness granted by  a Divis ion Bench of the High Court of Delhi under Art. 133(1) (c) of the Constitution is directed against its judgment and order  dated  May 6, 1971 dismissing  the  appellant’s  writ petition under Art. 226 of the Constitution. The  appellant joined the Indian Civil Service  after  being selected   pursuant  to  his  success  at  the   competitive examination  held  in  London in  1934.   He  underwent  the necessary  period  of  probation  and  was  thereafter  duly admitted  to  the  said Service.  He  signed  the  necessary covenant  with  the then Secretary of State for  India.   He arrived  in India on November 25, 1935.  It is not  disputed before  us  that  according to Fundamental  Rule  56(f)  the appellant  as  a member of the Indian Civil Service  had  to retire after 35 years’ of service counted from the date  of- his  arrival in India subject to the proviso that if he  had at  the  end 35 years’ service held his post for  less  than five years, he might, with the sanction of the President  of India  be permitted to retain his post until he had held  it for  five years.  The appellant’s date of retirement in  the normal  course would thus be November 25, 1970 and  this  is not controverted in this Court. The  appellant  was appointed as Managing  Director  of  the Indian  Refineries  Ltd., a  Public  Sector  undertaking,-in October.  1963.  He was appointed as Chairman  and  Managing Director  of the said undertaking and he continued  to  hold that  office  till  August, 1964 when he  was  appointed  as Chairman of the Oil and Natural Gas Commission.  In January, 1965  he  was appointed as Secretary to  the  Government  of India  in  the Ministry of Petroleum and  Chemicals  and  in February, 1969 he was appointed as Secretary in the Ministry of Works, Housing and Urban Development.  In the meantime in June, 1967 reference was made to Shri S. N. Rao, the Central Vigilance  Commissioner, to inquire into  the  circumstances necessitating change in the alignment of the pipeline of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 40  

Indian Oil Corporation in the coal-field areas of Bihar  and West  Bengal.   The report submitted by Shri S.  N.  Rao  in April,  1970  did  not contain any finding  adverse  to  the appellant.   It appears that the Parliamentary Committee  on Public Undertakings had also examined the Pipeline  Division of  the Indian Oil Corporation and submitted its  report  to Parliament on April 30, 1970.  As in this report there  were some findings adverse to the appellant the Government framed 9  charges against him and referred them for advice to  Shri S.  Dutt,  the  Central Vigilance  Commissioner,  who,  for. certain  personal reasons, declined to give any advice.   In the meanwhile the Government had in August, 1970 appointed a one man Corn- 701 mission  consisting of Shri J. N. Takru, a retired Judge  of the Allahabad High Court under the Commissions of  Enquiries Act, 1952, for enquiring into several matters arising out of the   report  of  the  Parliamentary  Committee  on   Public Undertakings.  When Shri S. Dutt declined to give his advice the Government in the Ministry of Petroleum and Chemicals in October,  1970 referred to the Takru Commission for  advice, the  question whether prima facie charges had been made  out against  the  appellant.  The charge-sheet  containing  nine charges  against the appellant were also forwarded  to  that Commission.   On  November 7, 1970 the Government  of  India intimated  Shri J. N. Takru that he was further required  to suggest if any other charge or charges appeared him to  have been prima facie made out against the appellant.  The  Takru Commission examined charges against the appellant and before starting  the enquiry required him on November 16,  1970  to submit  his  written statement in  defence.   The  appellant submitted  his explanation in more communications than  one. They were dated 7th and 19th December, 1970 and 5th January, 1971.   Shri  Takru submitted to the Government  an  interim report on January 13, 1971 in which prima facie case against the  appellant  in respect of majority of  the  charges  was stated   to   have  been  established.  it  was   in   these circumstances  that  it  was decided  to  hold  disciplinary proceedings against the appellant and with that end in  view an order suspending him was passed on March 23, 1971. In  the  meantime,  on November 3, 1970  the  appellant  had written   to  Shri  B.  Sivaraman,  Cabinet  Secretary   the following letter               Shri  J.  N. Takru is enquiring  into  certain               matters  connected with the Pipeline  projects               of  the Indian Oil Corporation, on  which  the               Public  Undertakings Committee  of  Parliament               had  made  a  report in  April,  1970.   These               matters cover certain allegations against  me,               in  respect of which I have not so far had  an               opportunity  of having my say.   I  understand               that  Shri Takru has been requested to  advise               Government  within  the  next  few  months  on               whether  there  is any prima facie  basis  for               these allegations.  In doing so, he will  give               me an opportunity to explain my point of view,               where necessary.  On the basis of Shri Takru’s               report,  Government  will take a  decision  on               what  further action, if any, is  needed.   To               facilitate  such  a course, I  am  willing  to               accept  an  extension of service  by  about  4               months from the 25th November, 1970, the  date               of my retirement otherwise, should  government               decide to grant such extenuation."               -L643S-SuppI/72

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 40  

              702               On  November 23, 1970 the President  of  India               passed  the  following  order  extending   the               appellant’s service upto March 25, 1971 :               "The  President is pleased to order under  the               proviso  to F. R. 56(f) that the  services  of               Shri P. R. Nayak, a member of the Indian Civil               Service, who completed 35 years’ of service on               the  25th  November, 1970, shall  be  extended               upto the 25th March, 1971."               The  order of suspension dated March 23,  1971               reads as under:               "Whereas disciplinary proceedings against Shri               P.    R. Nayak, ICS are contemplated;               "AND  WHEREAS the President,  after  carefully               considering the available material, and having               regard  to the nature of the  charges  against               him  and  the circumstances of  the  case,  is               satisfied  that it is necessary and  desirable               to  place  the  said Shri P.  R.  Nayak  under               suspension;               NOW  THEREFORE the President, in  exercise  of               the powers conferred by clause (a) of sub-rule               (1)  of  rule  3 of  the  All  India  Services               (Discipline  and Appeal) Rules, 1969  and  all               other  powers  enabling  him  in  that  behalf               hereby places the said Shri P. R. Nayak  under               suspension with immediate effect until further               orders.               It  is further ordered that during the  period               that  this  order shall remain in  force,  the               said  Shri  P.  R. Nayak shall  be  paid  such               subsistence  allowance as is admissible  under               the  rules and his headquarters shall  be  New               Delhi which he shall not leave without obtain-               ing  the  previous permission of  the  Central               Government." It   was  under  these  circumstances  that  the   appellant approached   the High Court of Delhi with a  petition  under Art. 226 of the Constitution praying for quashing the  order of  suspension and for a declaration that the appellant  had retired  from service on March 25, 1971 and was entitled  to full  benefits of retirement permissible under the  covenant and  the  rules as guaranteed by the Constitution.   It  was further prayed that F. R. 56(ff) be declared as ultra  vires the Constitution. The  High Court dismissed the writ petition.  It  held  that when the appellant was permitted by the President under  the proviso  to F.R. 56(f) to continue to hold the post held  by him at the end of 703 35 years’ of his service, he continued to hold that post  as a  member of the Indian Civil Service and not in  any  other capacity.   He  could be permitted to hold that post  for  a period not exceeding five years as contemplated by the  said proviso.  According to the High Court even the appellant had understood this to be the correct meaning and scope of  cl. (f) of F.R. 56 as he had himself prayed in the writ petition for a declaration that he had retired from service on  March 25, 1971.  The argument that an order of suspension under r. 3  (1)  (a) of All India Services  (Discipline  and  Appeal) Rules,  1969 could only be made against the appellant  after the  initiation  of disciplinary proceedings  was  also  not accepted by the High Court.  According to that Court it  was enough if there were accusations or imputations against  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 40  

appellant  which  called for an enquiry and  the  Government felt satisfied that it was necessary in the circumstances to suspend him.  The contention that F.R. 56(ff) was  violative of  the  rule  of  equality guaranteed by  Art.  14  of  the Constitution  was also repelled and it was observed  by  the High Court that members of the Indian Administrative Service who  were  earlier  members  of  the  Indian  Civil  Service constituted  a class distinct from the other members of  the Indian  Administrative Service and further that F.R.  56(ff) merely  reintroduced in October, 1970 the old cl.  (d)  oil’ F.R.  56  which  had  been  deleted  in  August,  1962.   By restoring the old position, according to the High Court,  no new  liability  was  imposed on the former  members  of  the Indian Civil Service. In  this Court a number of points were raised on  behalf  of the appellant and elaborate arguments were addressed on both sides.   We, however, do not consider it necessary  to  deal with them at length and express our considered opinion on  a I of them because in our view this appeal can be disposed of on  the short point that the order suspending the  appellant is bad, being violative of the relevant statutory rule. Fundamental Rules , to regulate the conditions of service of civil servants in India, were made by the Secretary of State in  Council  in exercise of the powers  conferred  upon  him by,s.  96-B  of the Government of India Act  as  amended  in 1919.   They came into force with effect from January,  1922 replacing the substantive rules in Civil Service Regulations except  in  respect of pensions.  Article 565 of  the  Civil Services  Regulations (replaced by the Fundamental Rules  in 1922)  dealing  with  "compulsory  retirement"  so  far   as relevant provided :               "565(a)  After  thirty-five  years’   service,               counting  from  the  date of  his  arrival  in               India,  an  officer  shall  not,  except   for               special reasons, and with the sanction of  the               Secretary  of  State retain his office  or  be               appointed to any new office :                704               Provided that, if such an officer has held his               officer for less than five years, he may,               for special reasons, with the sanction of  the               Government  of India, be permitted  to  retain               his  office  until  he has held  it  for  five               years.   The  term "office"  in  this  article               includes an officiating appointment.               Note.-[This rule does not apply to an  officer               holding the appointment of a Judge of a  Chief               Court.  Such an officer is required to  vacate               his  appointment  on attaining the age  of  60               years.]               (b)   The  period of five years begins to  run               from the date on which the officer first takes               up the office, whether    substantively     or               temporarily,  provided that, if temporary,  he               is  confirmed  without reverting to  his  sub-               stantive appointment; but the currency of  the               period  is not interrupted by  any  subsequent               temporary promotion to a higher appointment.               Note.-[The  term  "office"  as  used  in  this               Article does not include any office held under               direct  appointment by His Majesty  the  King-               Emperor  of India,. but the retention of  such               an  office should be subject to the  condition               prescribed in Article 563.]               F.R.  56(f)  and (ff) which  provide  for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 40  

             retirement,  and  retention in  service,  when               under  suspension, of a member of  the  Indian               Civil  Service,  occur in Chapter  TX  of  the               Fundamental  Rules, headed "Retirement".   The               heading  of this chapter before June 26,  1970               used to be "compulsory retirement."  According               to  the  learned  Attorney  General  the  word               "compulsory"  was  removed  from  the  heading               because of the substitution of the new  clause               (k)   in   F.R.  56  which   enables   certain               categories of Government Servants, subject  to               certain  conditions to voluntarily  retire  by               -living three months’ notice n writing.               F.R. 56(f) and (ff) read :               "56(f)  A member of the Indian  Civil  Service               shall retire after thirty-five years’  service               counted from the date of his arrival in India.               Provided that if he has at the end of  thirty-               five  years’  service held his post  for  less               than  five years he may, with the sanction  of               the President, be permitted to retain his post               until he has held it for five years.               Note  :  For  the  purpose  of  this   clause,               officiating tenure of a post shall be included               in calculating the period of five years.               705               (ff  ) Notwithstanding anything  contained  in               clauses (a), (d) and (f) where an officer  who               is member of the Indian Administrative Service               or  the Indian Police Service and  who  before               becoming  such  member  was a  member  of  the               Indian Civil Service or the Indian Police,  is               under suspension on a charge of misconduct, he               shall  not be required or permitted to  retire               on reaching the date of compulsory retirement,               but  shall  be retained in service  until  the               inquiry  into  the charge is concluded  and  a               final order is passed thereon by the competent               authority."               Clause  (ff) was inserted on October 6,  1970.               Clause  (d) of F.R. 56 as it  existed  between               November  1946  when it was added  and  August               1962 when it was deleted reads :               "  (d) Notwithstanding anything  contained  in               clauses (a) (b) and (c), a Government  servant               under  suspension  on a charge  of  misconduct               shall not be required or permitted, to  retire               on reaching the date of compulsory retirement,               but  shall  be retained in service  until  the               enquiry  into  the charge is concluded  and  a               final  order  is passed thereon  by  competent               authority."               This clause as is obvious was not confined  to               members  of the Indian Civil Service  but  was               applicable  to all Government servants.   With               the  deletion of this clause in  August,  1962               and  upto  October, 1970, when  cl.  (ff)  was               introduced, there was no provision similar  to               cl.  (d)  of  1946  or to  cl.  (ff)  of  1970               applicable  to  those  officers  who  formerly               beloved  to  the  Indian  Civil  Service.   In               August,  1962 a new Civil  Service  Revolution               351 A was substituted for the old one,  which               so far as relevant, reads :               "  351-A.-The  President further  reserves  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 40  

             himself   the   right   of   withholding    or               withdrawing  a  pension  or any  part  of  it,               whether permanently or for a specified  period               and the right of ordering the recovery from  a               pension of the whole or part of any  pecuniary               loss   caused   to  Government,   if.   in   a               departmental   or  judicial  proceeding,   the               pensioner is found guilty of grave  misconduct               or   negligence  during  the  period  of   his               service,  including service rendered upon  re-               employment after retirement :               Provided that-               (a)   such    departmental   proceeding,    if               instituted while the officer- was in  service,               whether  before his retirement or  during  his               reemployment,    shall,   after   the    final               retirement client of the officer, be deemed to               be a proceeding               706               under this article and shall be continued  and               concluded  by  the authority by which  it  was               commenced in the same manner as if the officer               had continued in service;               Rule  3 of All India Services (Discipline  and               Appeal,)   Rules,  1969  which  provides   for               suspension  during  disciplinary   proceedings               reads :               "3.     Suspension     during     disciplinary               proceedings-               (1)   If,  having regard to the nature of  the               charges and the circumstances in any case, the               Government  which initiates  any  disciplinary               proceedings is satisfied that it is  necessary               or  desirable  to place under  suspension  the               member  of  the  Service  against  whom   such               proceedings are started, that Government may-               (a)   if the member of the Service is  serving               under it, pass an    order  placing him  under               suspension, or               (b)   if the member of the Service is  serving               under   another   Government,   request   that               Government  to  place  him  under  suspension,               pending the conclusion of the inquiry and  the               passing of the final order in the case :               Provided  that,  in  case  where  there  is  a               difference   of  opinion  between  two   State               Governments,  the matter shall be referred  lo               the Central Government for its decision.               (3)   A  member of the Service in respect  of,               or against, whom an investigation, inquiry  or               trial relating to a criminal charge is pending               may, at the discretion of the Government under               which   he   is  serving,  be   placed   under               suspension   until  the  termination  of   all               proceedings  relating to that charge, if  the,               charge  is  connected with his position  as  a               Government  servant or is likely to  embarrass               him in the discharge of his duties or involves               moral turpitude.               (4)   A member of the Service shall be  deemed               to  have  been placed  under  suspension  with               effect from the date of conviction if, in  the               event of conviction for a criminal offence, he               is  not  forthwith  dismissed  or  removed  or               compulsorily  retired consequent on such  con-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 40  

             viction, provided that the conviction  carries               a  sentence of imprisonment  exceeding  forty-               eight hours.               (5)   Where a penalty of dismissal, removal or               compulsory  retirement  from  service  imposed               upon a member of the service under  suspension               is set aside in, appeal               707               or on review under these rules and the case is               remitted for further inquiry or action or with               any   other  directions,  the  order  of   his               suspension  shall be deemed to have  continued               in force on and from the date of the  original               order of dismissal, removal or compulsory  re-               tirement  and  shall  remain  in  force  until               further orders.               (6)   Where a penalty of dismissal, removal or               compulsory retirement from service impose upon               a  member  of  the service  is  set  aside  or               declared or rendered void in consequence of or               by  a  decision  of a court of  law,  and  the               disciplinary authority, on a consideration  of               the circumstances of the case, decides to hold               further inquiry against him on the allegations               on which the penalty of dismissal, removal  or               compulsory retirement was originally  imposed,               the  member of the Service shall be deemed  to               have  been  placed  under  suspension  by  the                             Central   Government  from  the  date  of   the               original   order  of  dismissal,  removal   or               compulsory  retirement and shall  continue  to               remain under suspension until further orders.               7(a) An order of suspension made or deemed  to               have been made under this rule shall  continue               to  remain  in force until it is  modified  or               revoked by the authority competent to do so;               (b)   Where   a  member  of  the  Service   is               suspended or is deemed to have been suspended,               whether  in connection with  any  disciplinary               proceeding   or  otherwise,  and   any   other               disciplinary proceedings, is commenced against               him during the continuance of that suspension,               the  authority  competent to place  him  under               suspension may, for reasons to be recorded  by               him in writing direct that the member of  the,               Service shall continue to be under  suspension               till  the  termination of all or any  of  such               proceedings;               (c)   An order of suspension made or deemed to               have been made under this rule may at any time               be modified or revoked by the authority  which               made or is deemed to have made the order."               Sub-rule (1) of this rule is a reproduction of               sub-r. (1) of    7 of the A.I.S (D & A) Rules,               1955. It  may  be  recalled that the appellant  was  appointed  as Secretary  in  the Ministry of Petroleum  and  Chemicals  in January,  1965  and he was appointed  as  Secretary,  Works, Housing and Urban Development in February, 1969.  The  first argument urged on 708 behalf  of  the  appellant was that  under  F.R.  56(f)  the appellant had to retire after 35 years’ service counted from the date of his arrival in India.  This date of  retirement,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 40  

according to the appellant’s counsel, is fixed and rigid and is in no circumstances capable of being postponed.  In other words,  the period of service of the appellant could  on  no account  be extended beyond the period of 35  years  counted from the date of his arrival in India.  His retention in the post  held  by him after that date could only mean  his  re- employment and not extension or continuation of his original service  as  a member of the Indian Civil  Service,  It  was further  contended that the appellant could be permitted  to retain  his post under the proviso to F.R. 56(f) only if  he had  held the same for less than five years on the  date  of his  compulsory  retirement.  As he had held the post  of  a Secretary to the Government of India since January, 1965  it could  not  be  said  that he had  held  the  post  of  such Secretary  for a period of less than five years on  November 23,  1 970.  He could, therefore, not be retained in  Indian Civil  Service  after  the date  of  compulsory  retirement, namely, November 25, 1970.  In this connection reference was also  made  to the definition of the  expression  "permanent post"  contained in F.R. 9(22).  This expression is  defined there  to  mean  a  post carrying a  definite  rate  of  pay sanctioned without limit of time.  According to Mr. Daftry’s argument  the appellant held the post of a Secretary to  the Government of India and the office of the Secretary,  works, Housing  and Urban Development on November 23. 1970  thereby emphasising the difference between "post" and "office".   In the alternative it was submitted that if the proviso to F.R. 56(f)  were to be construed as referring to the post of  the Secretary.  Works.  Housing & Urban Development held by  the appellant  since February, 1969 and not that of a  Secretary to the Government of India, then, his retention to that post should have been for the full period of five years beginning from  February, 1969 and his service could not  be  extended for a period less than five years : in other words, it could not be extended only upto March 25, 1971, as was ordered  by the  President  on  November 23,  1970.   According  to  the appellant’s contention if a member of the service  exercises his  choice under the proviso then be must be  permitted  to hold that post to complete five ’years in that post. The next argument pressed before us on behalf of the  appel- 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  with  respect  to  a definite  charge  or  charges  against  him  were   actually initiated  or  started  and not merely  when  they  were  in contemplation  as the impugned order of the President  dated March 23, 1971 expressly purports to do.  Reference to Takru Commission, according to this argument, could 709 by   no  means  be  considered  to  be  the  initiation   or commencement  of disciplinary proceedings.  The language  of r.  3,  according  to  the learned  counsel,  is  clear  and unambiguous  and it is not permissible on plain  reading  of sub-r.  (1)  to  order  the  appellant’s  suspension  merely because  there are some accusations or  imputations  against him   which  call  for  an  enquiry  :  in  the   guise   of interpretation  Courts cannot rewrite a rule to accord  with their  view of what it should be.  The order  of  suspension dated March 23. 1971, argued ’the counsel, must,  therefore, be held to be illegal and liable to be quashed. The  third  contention  raised on behalf  of  the  appellant emphasized a legal defect in the order of suspension and  it was  argued  that  the order of suspension  must  also  have denied the appellant’s request to retire on March 25,  1971. Without expressly prohibiting the appellant from retiring on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 40  

March 25, 1971, the order of suspension could not so operate as  to deprive him of his right to retire on March 25,  1971 in  accordance with the rules of his service read  with  the order extending his service upto March 25, 1971. In  our  view,  the second contention  possesses  merit  and deserves to be upheld.  In case we uphold this contention it would  be  unnecessary  for us  to  express  any  considered opinion either way on the other contentions.  Rule 3 of  the All  India  Services (D & A) Rule 1 969, which  has  already been  set  out in extensor, provides for  suspension  during disciplinary  proceedings.  Sub-rule this rule on its  plain reading   empowers  the  Government,  which  initiates   any disciplinary  proceedings on being satisfied, having  regard to  the nature of the charges and the circumstance,  of  the necessity, or desirability of placing under suspension,  the member  of  the Service against whom  such  proceedings  are started,  to pass an order placing, him under suspension  or if  he is serving under another Government to  request  that Government  to suspend him. (,emphasis supplied).   It  does not  suggest  that  suspension can be  ordered  merely  when disciplinary proceedings are contemplated. The language used in sub-rr. (4) to (7) also suggests that these rules do  not authorise  order of suspension of the delinquent  member  of the Service merely because disciplinary proceedings  against him are contemplated.  Suspension under those sub-rules  may be ordered only either after conviction. (deeming  provision tinder  sub-r. 4) or when criminal proceedings are  actually in progress (sub-r. 5) or when after the penalty imposed  on him  having  been  set  aside,  the  disciplinary  authority decides  to  hold further enquiry (deeming  provision  under sub-r. 6).  Clause (b) of sub-r. (7) similarly provides  for continuation    of    order   of   suspension.     If    any other,disciplinary  proceeding  is  commenced  against   the delinquent member of the service. during the continuance  of the earlier suspension-actual or deemed.  The legis- 710 lative scheme underlying r. 3 is thus clearly indicative  of the  intention of the rule making authority to restrict  its operation  only  to  those cases  in  which  the  Government concerned is possessed of sufficient material whether  after preliminary investigation or otherwise and the  disciplinary proceedings have in fact commenced and not merely when  they are  contemplated An order of suspension before  the  actual initiation  or  commencement  of  disciplinary   proceedings appears to us, therefore, to be clearly outside the ambit of Y.  3 and we find no cogent ground for straining  the  plain language of r. 3 ( 1 ) so as to extend it to cases ill which disciplinary  proceedings  are merely contemplated  and  not actually  initiated or commenced.  It is no doubt true  that this  Court  (G.   K.  Mitter  and A.  N.  Ray  JJ)  has  in Government  of  India, Ministry of Home Affairs  &  Ors.  v. Tarak  Nath Ghosh(1) expressed the view that under r. 7  (1) of  the All India Services (D & A) Rules, 1955 (replaced  in 1969 by r. 3 (1) with such we are concerned,) the Government is  entitled to place officer under suspension  even  before definite  charges are communicated to him  when  preliminary investigation  has  been  made into  his  conduct  following allegations of corrupt or malpractice levelled against  him. In  support  of  this view, reliance in  that  decision  was placed on S. Govinda Menon v. Union of India(2), an  earlier decision  by a bench of two Judges.  After referring to  the facts and the decision in S. Govinda Menon’s case (supra) it was observed in the case of Tarak Nath Ghosh’s case  (supra) as follows :               "It  was  urged before us that  the  order  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 40  

             suspension  there was different from  the  one               before  us.  While there is no doubt that  the               order against the appellant in the above  case               was far more detailed both with regard to  the               nature of the charges and to the necessity  of                             placing  him  under  suspension,  in substance               there is little difference for the purpose  of               r. 7 of the Service Rules.  The order in  this               case dated 31st July, 1964 shows that  serious               allegations of corruption and malpractice  had               been  made against the respondent and  be  was               also   reported   to  have   contravened   the               provisions  of the All India  Service  Conduct               Rules and enquiries made by the Government  of               Bihar  into the allegations had revealed  that               there was a prima facie case made out  against               him.  Merely because the order mentioned  that               disciplinary  proceedings  were   contemplated               against the respondent, as compared to Rule  7               which  contains  phrases  "the  initiation  of               disciplinary  proceedings’ and  the  ’starting               ’of such proceedings’ we cannot hold that  the               situation in the present case had not  reached               a stage which called               (1) A.T.R. 1971 S.(-. 823.               (2) [1967] 2 S.C.R. 566.               711               for  an  order of  suspension.   In  substance               disciplinary  proceedings  can be said  to  be               started  against  an officer  when  complaints               about his integrity or honesty are entertained               and  followed  by a preliminary  enquiry  into               them  culminating in the satisfaction  of  the               Government  that a prima facie case  has  been               made  out  against  him  for  the  framing  of               charges.  When the order of suspension  itself               shows  that  Government was of the  view  that               such  a  prima  facie  case  for  departmental               proceedings  has been made out the  fact  that               the order also mentions that such  proceedings               were contemplated makes no difference.   Again               the  fact  that in other rules of  service  an               order   of   suspension  may  be   made   when               ’disciplinary  proceedings were  contemplated’               should  not I,--ad us to take the view that  a               member of an All India Service should he dealt               with   differently.   The  reputation  of   an               officer is equally valuable no matter  whether               he belongs to the All India Services or to one               of  the humble cadre.  It is the  exigency  of               the  conditions of service which  requires  or               calls for an order of suspension and there can               be  no difference in regard to this matter  as               between a member of an All India Service and a               member  of  a  State  Service  or  a   Railway               Service." The Court in Tarak Nath Ghosh’s case (supra) considered  the dictionary meaning of the word ’suspension’ and what is said in  art.  389, vol. 25 of Halsbury’s Laws of England  at  p. 589,  namely, that in the absence of an express  or  implied term to the contrary the master cannot punish a servant  for alleged  misconduct  by suspending him from  employment  and stopping  his wages for the period of suspension.  But  this meaning was considered to be applicable only when suspension

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 40  

is  resorted to by way of punishment.  Rule 7 in that  case, on  the  other  hand, merely provided for  suspension  of  a Government   servant   for  the  purpose   of   disciplinary proceedings  and  could, therefore, in the  opinion  of  the Court, be invoked when serious allegations of misconduct are imputed.   In  the  case of S.  Govinda  Menon  (supra)  the argument raised both in the High Court and in this Court was that  till  charges are framed under r. 5(2)  of  All  India Services (D & A) Rules, 1955 r. 7 could not be utilised  for suspension  because  the word ’charges’ as used in  r.  7(1) must be understood to mean definite charge or charges framed under r. 5 (2).  This contention was repelled by this  Court with the following observations :               "It was pointed out that definite charges were               framed on June 6. 1963 and the Government  had               no authority               712               to  suspend the appellant before the  date  of               framing charges.  Reference was made to Rule 5               (2) which states :               ’5 (2) The grounds on which it is proposed  to               take action shall be reduced to the form of  a               definite  charge  or charges, which  shall  be               communicated  to  the member  of  the  Service               charged  together  with  a  statement  of  the               allegations on which each charge is based  and               of   any  other  circumstances  which  it   is               proposed to take into consideration in passing               orders on the case.’               It  was argued by the appellant that the  word               ’charges’ which occurs in Rule 5 (2) and  Rule               7  should  be given the same  meaning  and  no               order of suspension could be passed under Rule               7  before the charges are framed under Rule  5               (2)  against the appellant.  We do  not  think               there is any substance in this argument.  Rule               5(2)  prescribes that the rounds on which  it               is proposed to take action shall be reduced to               the  form  of a definite  charge  or  charges.               Under  rule  5(3) a member of the  Service  is               required to submit a written statement of  his               defence to the charge or charged.  The framing               of the charge under Rule 5(2) is necessary  to               enable the member of Service to meet the  case               against  him.  The language of rule 7  (1)  is               however different and that rule provides  that               the  Government  may  place a  member  of  the               Service under suspension ’having regard to the               nature   of   the   charge/charges   and   the               circumstances  in any case’ if the  Government               is satisfied that it is necessary to place him               under  suspension.  In view of the  difference               of languageage in Rule 5(2) and Rule 7 we  are               of the opinion that the word ’charges’ in rule               ’I  ( 1 ) should be given a wider  meaning  is                             denoting   the  accusations   or   imp utations               against   the  member  of  the  Service.    We               accordingly   reject  the  argument   of   the               appellant on this aspect of the case."               It  is, however, noteworthy that in that  case               this  Court  had a little earlier  come  to  a               positive finding that disciplinary proceedings               had   been  actually  initiated  against   the               appellant.  This is what the Court said :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 40  

              "A.  perusal of the order of the  Government,               Ex.   P-1,   would   itself   indicate    that               disciplinary  proceedings had  been  initialed               against  the appellant.  Exhibit P-1 reads  as               follows .               ’The   Government   have   received    several               petitions  containing serious  allegations  of               official misconduct               713               against  Shri S. Govinda Menon,  I.A.S.  First               Member,   Board  of  Revenue,   and   formerly               Commissioner,  Hindu Religious and  Charitable               Endowments   (Administration).     Preliminary               enquiries  caused  to be  conducted  into  the               allegations have, shown prima facie, that  the               officer is guilty of corruption, nepotism  and               other  irregularities of a grave nature.   The               Kerala High Court had also occasion to comment               on  the  conduct  of  the  officer  in   their               judgment  in O.P. 2306/62 delivered  on  12,th               February, 1963.  The judgment begins with  the               observation that ’this case, if it has  served               little else has served to expose a disquieting               state  of  affairs regarding the  disposal  of               valuable forest lands belonging to a religious               institution   known  as  the  Sree   Pulapally               Devaswom  of which I trust due notice will  be               taken  by  the  competent  authority  in   the               interests of the public administration and the               preservation of our forest wealth no less than               in   the   interests   of   this    particular               institution.’               The  judgment  in  the  above  case  and   the               preliminary report of the X-Branch police have               disclosed  the  following  grave  charges   of               serious  irregularity and official  misconduct               on the part of the accused officer.               The  detailed enquiry into the charges by  the               X-Branch is in progress.  The evidence in  the               case  has to be collected from a large  number               of officers who are subordinate to the accused               officer in his capacity as First Member of the               Board  of  Revenue.  In the  interest  of  the               proper conduct of the enquiry it is  necessary               that  the  officer should not  be  allowed  to               continue  in that post.  Having regard to  the               nature of the charges against the officer  and               the  circumstances the proper course would  be               to  place  him  under  suspension.   Shri   S.               Govinda Menon, I.A.S. First Member.  Board  of                             Revenue, is therefore placed under  su spension               under   Rule  7  of  the  All  India   Service               (Discipline  and Appeal) Rules. 1955 till  the               disciplinary proceedings initiated against him               are completed.’               A  perusal  of this document  shows  that  the               Government had accepted the proceedings taken               in  the  matter  up till  that  date  and  had               decided  to go forward with  the  disciplinary               proceedings.   In  our opinion,  there  is  no               formal    order    necessary    to    initiate               disciplinary  proceedings under Rule 4 (1)  of               the   Rules  and  the  order  of   the   State               Government under Ex.  P-1 must be deemed to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 40  

             an   order  under  Rule  4(1)  of  the   Rules               initiating disciplinary proceedings." 714 In S. Govinda Menon’s case (supra), therefore, the order  of suspension  was  held also to be the  order  initiating  the disciplinary proceedings No question was raised in that case about  the legality of the composite order  both  initiating disciplinary proceedings and suspending Govinda Menon.   But be that as it may, we find ourselves with all respect unable to  agree  with the view taken in Tarak  Nath  Ghosh’s  case (supra). There  is no gainsaying that there is no inherent  power  of suspension postulated by the Fundamental Rules or any  other rule  governing  the  appellant’s  conditions  of   service. Except  for r. 3 of the A.I.S. (D & A) Rules, 1969 no  other rule  nor any inherent power authorising the impugned  order of suspension was relied upon in this Court in its  support. Therefore,  if  r. 3, which is the only rule  on  which  the appellant’s suspension pending disciplinary proceedings  can be founded, does not postulate an order of suspension before the   initiation   of  disciplinary  proceedings   and   the Government initiating such proceedings can only place  under suspension  the  member  of the  Service  against  who  such proceedings  are  started,  then,  the  impugned  order   of suspension  which  in  clearest  words  merely  states  that disciplinary   proceedings   against   the   appellant   are contemplated,   without  suggesting  actual  initiation   or starting  of  disciplinary proceedings, must be held  to  be outside this rule.  The impugned order of suspension, it may be  pointed out, is not like an order of  suspension  which, without adversely affecting the rights and privileges of the suspended Government servant merely, prohibits or  restrains him from discharging his official duties or obligations.  An order  of  that  nature may perhaps be  within  the  general inherent competence of an appointing authority when  dealing with the Government servant.  The impugned order made  under r.  3  of  A.I.S.  (D & A) Rules, 1959  on  the  other  hand seriously  affects  some  of  the  appellant’s  rights   and privileges  vesting in him under his conditions of  service. To  mention  some  of the disabilities  resulting  from  his suspension,  he  is  ,not entitled to get  his  full  salary during  suspension,  but  is only  to  be  paid  subsistence allowance and in certain circumstances some other allowances :  in. order to be entitled to the subsistence allowance  he is  prohibited  from  engaging  in  any  other   employment. business,   profession  or  vocation  (vide  r.  4)  :   the appellant  is not permitted to retire during the  period  of suspension   :  indeed,  the  impugned  order   specifically prohibits  the appellant even from leaving New Delhi  during the  period  of suspension, without obtaining  the  previous permission  of the Central Government.  The fact that  these prejudicial   consequences  automatically  flow   from   the impugned  order  Linder the rules also ends support  to  our view  that the clear and explicit language of r. 3 must  not be so strained to the appellant’s prejudice as to  authorise an order of suspension on the mere ground that  disciplinary proceedings 715 against him are contemplated.  The precise words of r. 3 are unambiguous  and must be construed in their ordinary  sense. The  draftsman  must be presumed to have used  the  clearest language to express the legislative intention.  The  meaning being plain, courts cannot scan its wisdom or policy. In  Tarak Nath Ghosh’s case (supra) this  Court’s  attention was  also  drawn  to r. 12 of  the  Central  Civil  Services

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 40  

(Classification, Control and Appeal) Rules, 1957 made by the President under the Proviso to Art. 309 of the  Constitution which  in  express  terms provided  for  suspension  of  the Government   servant  noncertified  Anen,  inter  alia,   "a disciplinary  proceeding, against him is contemplated or  is pending."  This Court did not consider that rule +to  be  of much  assistance  in construing r. 7 of the A.I.S. (D  &  A) Rules,  1955 which rules were held to constitute a  complete code.   In our view the difference in the language  used  in the  relevant rules dealing with suspension in the two  sets of  rules,  namely, C.C.S. (C.C. & A.) and A.T.S.  (D  &  A) Rules  may  not be considered to be  wholly  irrelevant  and unhelpful for discovering the intention of the draftsman  in adopting  different phraseology while dealing with the  same subject  of suspension of Government servants  of  different categories,  Rule  12(1) (a) and (b) of C.C.S. (C.  C  &  A) Rules,  1957  is  now replaced by r. 10(1) (a)  and  (b)  of C.C.S.  (C.  C & A) Rules, 1965 without any change  in  the: language.  Rule 12(1) (a) and (b) reads :               "12.  Suspension.(1) The Appointing  Authority               or any authority to which it is subordinate or               any other authority empowered by the President               in  that behalf may Face a Government  servant               under suspension-               (a)   where a disciplinary proceeding  against               him is contemplated or is pending, or               (b)   where  a case against him in respect  of               any criminal offence is under investigation or               trial. Just as the phraseology of r. 12 dealing with suspension  in C.C.S.  (C.   C & A) Rules, 1957 has been  retained  in  the corresponding  rule of’ 1965, the phraseology of r. 7  (1  ) (a)  and  (b) dealing with  suspension  during  disciplinary proceedings in A.I.S. (D & A) Rules. 1955 has similarly been retained  in  the corresponding r. 3 (1 ) (a)  and  (b) of 1969.  This retention of different phraseology in both these sets   of  rules  does  not  appear  to  us  to  be   wholly unintentional  on the other hand it suggests consistency  of purpose and continuity of regulation, tending to reflect the different  legislative intentions on the question  of  scope and  effect of the rules dealing with suspension in the  two sets  of  rules.  Courts may legitimately presume  that  the draftsman framing r. 3 (1) (a) and (b)  of  the  1969  rules which concern us, was aware of the existence 716 of  different  phraseology used in the  rules  dealing  with Suspension  in  C.C.S. (C.  C. & A.) Rules, 1957  and  1965. Similarly the draftsman framing the C.C.S. (C.C. & A)  Rules can  legitimately  be  fixed  with  the  knowledge  of   the different  language used in the relevant rule  contained  in A.I.S.  (D  & A) Rules, 1955.  If with  this  knowledge  the draftsman  stuck  to  the different  phraseology  ill  these respective rules, then, can the Court not fairly assume that ,the  actual words used in the different sets of rules  were purposely  selected  with  the  object  of  expressing   the legislative  intention  ill the clearest  and  most  precise manner  ? But independently of this consideration  we  think that  the  plain  language of r. 3 (1)  (a)  and  (b)  which concerns us does not authorise suspension when  disciplinary proceedings  have not been initiated but are  only  contemp- lated.   Incidentally, it may be pointed out that the  Patna High  Court,  when dealing with Tarak Nath  Ghosh’s  case(1) also noticed r. 1706(1) (a) and (b) dealing with  suspension of  railway  servants.   A Guide to  Discipline  and  Appeal Rules) which is in identical terms as r. 12 (1 ) (a) and (b)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 40  

of  the C. C.S. ((’-.C. & A) Rules. 1957.  Needless  to  add that  we  are also aware of another statutory rule  rr.  401 (a)  and (b) I of Railway Protection Force Rules, 1959  made by  the  Central  Government  under s.  21  of  the  Railway Protection  Force Act, 1957 (23 of 1957) which provides  for suspension  of  a  member of the Force  "(a)  where  an  in- vestigation  into  charges against him  is  contemplated  or pending  (b)  where  a case against him in  respect  of  any criminal  offence  is  under investigation  or  trial."  The existence  of  such  rules serves  to  further  fortify  our opinion already expressed on the plain language used in r. 3 (1)  (a) and (b) which is by no means obscure or  ambiguous. The  different phraseology, in our view, designedly used  to express different legislative intention. We have already said that on the view that we take it is un- necessary  to consider the other points raised on behalf  of the  appellant.  We may only add that the contention of  the learned  Attorney General that the appellant should be  held to  be estoppel from urging that the date of his  retirement could  not be postponed beyond November 25, 1970 as  he  had expressly  agreed to the extension of that date  upto  March 25, 1971 also need not be considered by us. In  the final result this appeal must succeed and  allowing_ the same we-allow the writ petition and quash the suspension order  In the circumstances of this case there would  be  no order as to costs. Ray,  J.  This appeal is by certificate  from  the  judgment dated 6 May, 1971 of the High Court of Delhi dismissing  the appellant’s   application   under   Article   226   of   the Constitution. (1)  I.L.R. (1966) 45 Patna 749 at 755. 717 The   appellant  asked for a writ, order, direction  in  the nature  of  the mandamus quashing the  order  of  suspension dated   23 March 1971 and a declaration that  the  appellant retired from service on 25 March. 1971 and further declaring the   appellant  as  immune  against  any  action   by   the Government   and  for  further  writs,  orders,   directions directing  the respondent not to act in any manner under  or in  furtherance of the order of suspension dated  23  March, 1971  and  for a further declaration that  Fundamental  Rule 56(ff) is void and ultra vires. The  appellant  joined  the  Indian  Civil  Service  on   24 November, 1935.  In 1960 the appellant because the  Managing Director of Indian Refineries Ltd.  In the month of October, 1963 the appellant was the Chairman and Managing Director of the  Indian Refineries Ltd.  In the month of  January,  1965 the appellant became Secretary in the Ministry of  Petroleum and  Chemicals.  On 22 February, 1969 the  appellant  became Secretary, Ministry of Works, Housing and Urban Development. The appellant after joining the Indian Civil Service arrived in India on 25 November-, 1935 and was to complete 35  years of service on 24 November, 1970.  The completion of 35 years of  service  was under the rules the date of  retirement  of members  of Indian Civil Service.  On 23 November, 1970  the Central  Government made an order extending the  service  of the appellant up to 25 March, 1971.  On 23 March, 1971 there was  an  order  of the  Central  Government  suspending  the appellant.  This order was challenged in the application  in the High Court. The facts preceding the order of suspension are as  follows. In  the month of August, 18 an enquiry into certain  matters connected  with  the  laying  down  of  the   Haldia-Barauni pipeline  through  the  coal  fields  of  West  Bengal   was entrusted to Shri N. S. Rao, Central Vigilance Commissioner.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 40  

The  appellant  on 20 August. 1968 wrote to  Shri  Rao  that though  the latter would ’lay down his office on 23  August, 19,68 he had offered to continue and complete the report  of the enquiry in an honorary capacity and that the  Government accepted the order of Shri Rao with thanks.  The letter  was sent by the appellant after obtaining the prior approval  of the  Minister of Petroleum.  On 21 August, 1968 Shri  N.  S. Rao  wrote a letter to the appellant that he would  complete the  work in his individual capacity even after he had  laid down  his  office as Central Vigilance Commissioner  if  the Government  wanted  him  to do  so.   Shri  Rao.  therefore, suggested that it would be better for 15-L643SupCl/12 718 the  Government  to  say that he agreed  to  the  Government request  to  complete the work. : On 23  August,  1968  the, appellant  wrote to Shri Rao confirming, that the  appellant was in agreement with the position as explained by Shri Rao. It  may be stated here that with the exception of the  first letter  the entire correspondence between the appellant  and Shri  Rao  did  not  bear any  stamp  of  approval  of,  the Minister.   On 16 April, 1970 Shri N. S. Rao made  a  report and he did not give any finding adverse to the appellant. Meanwhile the Parliamentary Committee on Public takings  had examined the Pipeline Division of the Indian Oil Corporation and  submitted its report to Parliament on 30 April,   1970. The Committee found first that the appellant who was at  the material time the Managing Director of the Indian Refineries Ltd,  showed  more  concern  for  the  contractor  Bechtel’s interest   than  for  the   Haldia-Barauni-Kanpur   pipeline project.   Bechtel  Corporation  was  an  American  firm  of Consultants  who were supervising the project.   The  second finding was that the appellant was acting on his own, in his dealing  with  the construction contractors as well  as  the American  consultants  supervising  the  project  in   vital matters  concerning the capacity of the pipelines, thus  by- passing  the  authority  of  the  Board  of  Directors   and Government.  The third finding was that in several instances the appellant had exceeded his authority available to him. Consequent  on the report of the Parliamentary Committee  on Public  Undertakings the Government of India decided to  set up  a  one-man commission under the  Commission  of  Inquiry Act.,  1952 headed by Shri J. N. Takru, a retired  Judge  of the  Allahabad High Court.  The terms of reference were  set out  in the resolution dated 22 August, 1970 setting up  the commission.   Broadly  stated, terms of  reference  included whether  any  payment to Bechtel was made in excess  of  the amount  sanctioned by the Government; whether the  induction of  Bechtel into the project was malafide:  whether  Bechtel was  shown undue favour, whether the appellant acted on  his own  by-pasing, the Board of Directors in his dealings  with Snam  and Bechtel in vital matters ’concerning the  capacity of  the Haldia-Barauni-Kanpur pipeline; whether the  Genera’ Manager  and the Managing Director of the Indian  Refineries Ltd.  wore  perfunctory  and  casual  in  dealing  with   an important  communication  dated  26  September,  1963   from Bechtels  to’ Indian Refineries Ltd. mentioning  the  design capacity  of Haldia-Baruani pipeline; and also to  determine whether  there  was loss to the  public  interest-,  whether there  was any carelessness and negligence in  discharge  of responsibilities  by  Government  and  the  officials.   The resolution  of  the  Government  appointing  the  Commission stated that the Commission was to submit its report within a period of six monthly. 719

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 40  

in the month of October. 1970 the Government of India in the Ministry  of Petroleum and Chemicals referred. the.  matter, to the Takru Commission for; advice on (1) Whether and if so what,   prima  facie.charges  might  be  made  against   the appellant in connection with the report of the Parliamentary Committee on Public Undertakings; and (2), whether any other officer appeared to be involved in any of the charges  which might  be,  found as prima facie established. prior  to  the communication  by  the Government of India on  17  October,. 1970  to  Shri  J.  N. Takru  the’,  Government  had  on  26 September 1970, given a copy of the charge-sheet  comprising charges  drawn  against  the appellant by  the  Ministry  of Petroleum and Chemicals.  On 7 November, 1970 the Government of  India  intimated  to Shri Takru that his  task  was  not limited to an examination of the charges handed over to  him by  the Government on 26 September, 1970 but he was also  to suggest   to  Government  whether,  as  a  result   of   the examination  of  the  report any  other  charge  or  charges appeared to be prima facie made out for departmental action against  ’the  appellant.   The  original  time  fixed   for tendering  the  report  was  the  middle  of  the  month  of February, 1971 but subsequently the time was advanced to the middle of the month of January,.1971. Thereafter  the  Takru Commission embarked upon  an  enquiry into the charges against the appellant.; The. charges  were sent to ,the appellant on 16 November, 1970 and be was given time  till  :30 November, 1970 to submit his  defence.   The time  was  extended .till 7 December  1970.   The  appellant submitted  a written statement in defence to those  charges. By a letter dated 7 December. 1970 the appellant submitted a detailed  explanation  and  replies to’  the  Memorandum  of charges  served,  on.  him by the Takru  Corn  mission.   By another  letter  dated19/21 December,  1970’  the  appellant gave,  his supplementary replies to some of the  allegations and again on 5 January. 1971 submitted to Shri Takru another representation.   The  appellant was heard in  person  on  4 January, 1971.  On 13 January, 1971 Shri Takru submitted an interim  report to the Government recording his findings on the question  as to  whether  there  was any prima  facie  case  against  the appellant ,For  a  departmental  enquiry-into  14  charges framed  against  im.  In the report Shri Takru-came  to  the conclusion  that barring Part (d) of Charge III  and  Charge XIII,  all the remaining charges against the appellant  were prima facie established. On  23 March, 1971 the Government, of India passed an  order of suspension.  The order is set out hereunder               Whereas disciplinary proceedings against  Shri               P. R. Nayak, ICS are contemplated-’               720                 AND WHEREAS the  President,  after carefully                             considering  the available material an d  having               regard  to the nature of the  charges  against               him  and the circumstances of the case,  is  s               that  it is necessary and desirable  to  place               the said Shri P. R. Nayak under suspension;               NOW  THEREFORE, the President in  exercise  of               the powers conferred by clause (a) of sub-rule               (1)  of’  rule  3 of the  All  India  services               (Discipline  and Appeal) Rules, 1969  and  all               other  powers  enabling  him  in  that  behalf               hereby  place the said Shri P. R. Nayak  under               suspension with immediate effect until further               orders;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 40  

             It  is further ordered that during the  period               that  this  Order shall remain in  force,  the               said  Shri  P.  R Nayak  shall  be  paid  such               subsistence  allowance as is admissible  under               the  rules and his headquarters shall  be  New               Delhi   which  he  shall  not  leave   without               obtaining  the  previous  permission  of   the               Central Government.               By order and in the name of the President               Sd/- B. B. Lal               Secretary to the Government of India" The appellant filed an application under Article 226 of  the Constitution in the Delhi High Court on 24 March, 1971.  The appellant filed an amended petition on 30 March, 1971.   The appellant prayed for a writ quashing the order of suspension and a declaration that the appellant retired from service on 25 March, 1971 and a further declaration that the  appellant is  immune  thereafter  against  any  action  taken  by  the Government  as  there is no authority  therefore  under  the applicable  rules.  The further reliefs that  the  appellant prayed  for  were  to give the appellant  full  benefits  of retirement from service avail-able under the covenants  and the Rules as guaranteed by Article 314.  The appellant  also prayed  for  a declaration that Fundamental Rule  56(ff)  is void and ultra vires the Constitution. In  the petition the appellant made these allegations.   The appellant  is an officer of the Indian Civil Service and  is ’at present working as Secretary to the Government of India, Ministry   of   Works’  Housing  and   Urban   Development’. According to Fundamental Rule 56(ff) the date of  compulsory retirement  of the appellant from the Indian  Civil  Service was  24 November, 1970’.  The appellant agreed to accept  an extension of service by four months from 25 November,  1970. According to the order dated 23 November, 1970 the appellant is to retire from- service on 25 March, 1971.  The appellant offered  to  the  Government of India  to  continue  him  in service  for a further period till after the receipt of  the report of the Commission of Inquiry set up by the Government of’ 721 India.  The offer of the appellant was not accepted.  On the contrary, the order of suspension dated 23 March,. 1971  was served on the appellant On these allegations the appellant raised these  contentions in   the  petition.   First,  the  Government  acted   under Fundamental Rule 56(ff) and there was no order of suspension in  existence or, the date of compulsory retirement  of  the appellant.   A member of the Indian Civil Service cannot  be proceeded  against in any disciplinary proceeding after  the date of his compulsory retirement from service.  Second, the order  of suspension passed after the expiry of the date  of compulsory  retirement  cannot prevent  the  appellant  from retiring  on  25 March, 1971.  The order  of  suspension  is repugnant to law, Third no disciplinary proceedings  namely, inquiry had been initiated against the appellant.  The order of  suspension from service can be passed only in  terms  of Rule  3  of the All India Services (Discipline  and  Appeal) Rules,  1969.  The provisions of Rule 3(1)  (a)  contemplate suspension  of an officer against whom Government  initiates any  disciplinary  proceedings.   The  order  of  suspension merely stated that proceedings are contemplated.  Therefore, the  order  is  bad.  Fourth,  Fundamental  Rule  56(ff)  is discriminatory  in character and violative of Article 14  of the Constitution. The  High  Court held that an officer of  the  Indian  Civil

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 40  

Services  could  with  the sanction  of  the  President  the allowed to continue to retain the post he was holding at the date  of compulsory retirement for the maximum period  of  5 years.  As to the order of suspension the High Court relying on  the  decisions of this Court which will  be  dealt  with hereafter  held that an order of suspension could be  passed even   before  definite  charges  were  communicated.    The appellant’s  contention that Fundamental Rule  56(ff)  which permitted an officer under suspension from retiring violated Article 14 was not accepted by the High Court. The  appellant  in  this  Court  repeated  the   submissions advanced in the High Court and raised additional contentions which were neither founded in the petition nor argued in the High  Court.  These additional contentions were first,  that the date of compulsory retirement of the appellant was fixed under  Fundamental Rule 56(f) and therefore there could  not be  an  extension of service beyond the date  of  compulsory retirement.   Second, assuming there was an extension  there was in fact no order of extension of service for 5 years  in accordance  with, the provisions of Fundamental Rule  56(f). Third, the Government placed the appellant under  suspension by an order dated 23.March, 1971,.  The order of  suspension is bad inasmuch as there was no order under Fundamental Rule 5  6  (ff) retaining the appellant in s   while  making  the order of suspension. 722 These new contentions do not appear in-the pleadings.  Those contentions were not raised in the High Court.   Ordinarily, this  Court does not allow a party to canvass  points  which are not mentioned in the pleadings or in the judgment.   The reasons  behind  this practice are two-fold.  ,  First,  the opposite  party  is deprived of meeting such a case  in  the pleadings.  Secondly, this Court is deprived of the  benefit of a considered judgment of the High Court.  In view of, the fact   that   the  appellant  was  allowed  to   make,   his submissions.these will have to be considered. Broadly  stated,  four  questions  fall  for  consideration. First, can there be an extension of service of an officer of ’the.   Indian Civil Service beyond the date  of  compulsory retirement  ?  Second, if there is an extension  of  service does  such  an extension of service under  Fundamental  Rule 56(f) have to ’be for a period of five years.  Third, could there   be  an  order  of  suspension  in  the   facts   and circumstances  of  the case under Rule 3 of  the  All  India Services   (Discipline   and  Appeal)   Rules,   1969   When disciplinary proceedings had not been initiated and did  not commence.   Fourth,  is any order of  retention  in  service necessary  within the meaning of Fundamental Rule 56(ff)  at the time of passing of the order of suspension ? The  appellant’s  contention  on the first  question  as  to whether  there could be an extension of service  beyond  the date  of compulsory retirement were the.  First the date  of compulsory retirement is a fixed and irrevocable date  which cannot  be  changed.   The  compulsory  retirement  of   the appellant  was fixed under Fundamental Rule 56(f) to  be  35 years from the date of his arrival in India.  He arrived  in India  on 25 November, 1935.  Therefore, there could not  be an    extension    of   service   beyond   the    date    of compulsory    retirement   under   Fundamental    Rule56(f). Secondly,  assuming  there could be an  order  of  extension under  the  proviso to Fundamental Rule 56(f) there  was  in fact  no  order  under  the  proviso.   It  was  said   that Fundamental Rule 56(f) consists of two separate parts.   The first part speaks of the date of compulsory retirement.  The proviso  which is the second and independent part speaks  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 40  

extension of service sanctioning retention of post for  five years               The  order  dated  23 November,  1970  was  as               follows               "The  President is pleased to order under  the               proviso  to  F.R. 56(f) that the  services  of               Shri P. R. Nayak, a member of the Indian Civil               Service, who completed 35 years of service  on               the 25th November, 1970 shall be extended upto               the 25th March, 1971        In  order to appreciate the appellant’s.  contentions it  is  necessary  to  refer  to  Fundamental  Rule   56(f). Fundamental Rule 56 (f ) in the present form came into force with effect from 21 July, 723 1965.  The previous corresponding Rule was Fundamental  Rule 56(c)  which  came into force on 1 January, 1922,  Prior  to 1922  Article 565 of the Civil Service Regulations  was  the relevant regulation.  Article 565 (a) stated that ’after 3 5 years’  service  counting from the date of his  arrival,  in India, an officer shall not, except for special reasons, and with  the  sanction  of the Secretary of  State  retain  his office or be appointed to any new office; provided that,  if such  an  officer  has held his office for  less  than  live years,  he may, for special reasons, with the sanctioned  of the  Government of India, be permitted to retain his  office until  he  has held it for five years.  Article 565  of  the Civil Service Regulations was repealed by Fundamental  Rules on  1 January, 1922.  Fundamental Rules 56(c)(i) which  came in place of Article 565 was this               "A member of the Indian Civil Service, who  is               not  a  judge of a Chief  Court,  must  retire               after 35 years’ service counted from the  date               of  his arrival in India provided that  if  he               has held his post for less than five years, he               may, with the sanction of the Governor General               in Council be permitted to retain it until  he               has held it for that period". The present Fundamental Rule 56(f) was introduced in 1965 in place   of  the  previous  Fundamental  Rule  56  (c)   (i), Fundamental Rule 56(f) is as follows               "(f).   A member of the Indian  Civil  Service               shall retire after thirty-five years’  service               counted from the date of his arrival in India;               provided that if he has at the end of  thirty-               five  years’ held his post for less than  five               years,  he  may,  with  the  sanction  of  the               President,  be  permitted to retain  his  post               until he has held it for five years". The  contention on behalf of the appellant that a member  of the Indian Civil Service on completion of 35 years’  service from  the date of his arrival in India retires  compulsorily and  there cannot be any extension of service is opposed  to the language of Fundamental Rule 56(f) itself and is utterly inconsistent  with the practice and procedure of  exigencies of  service  on  which  Fundamental  Rule  56(f)  is  based. Historically  Civil Service Regulation 565 (a),  Fundamental Rule  56 (c) (i) and the present Fundamental Rule 5 6  (f  ) all  indicate that a member of the Indian Civil Service  may have  an extension of service beyond the date of  compulsory retirement.   Under, Fundamental Rule 56(f) a member of  the Indian Civil Service may with the sanction of the  President be, permitted to retain his post. 724 Sanction  of  retention of post at the  end  of  thirty-five

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 40  

years which is mentioned in Fundamental Rule 56(f)  contains intrinsic authority for extension of service.  The extension of  service  at  the end of thirty-five  years’  service  is inherent in Fundamental Rule 56(f).  The appellant could not show any rule or authority other than Fundamental Rule 56(f) for  extension of service after thirty-five years’  service. The  order of the appellant’s "tension of service is  not  a case  of new employment after retirement.  Nor is it a  case of  fresh  contract  of  service.   Any  valid  contract  of employment after the date of compulsory retirement is to  be in compliance with Article 299 of the Constitution.  That is neither  the  case  nor the rule.  It is a  simple  case  of extension of service under Fundamental Rule 56(f).  There is no authority for saying that at the end of 35 years’ service compulsory retirement has happened and is complete and there can  be no extension of service.  It is incomprehensible  as to  how can be permitted to retain the post one was  holding at  the end of 35 years’ service if one has already  retired ’compulsorily’ at the end of 35 years’ service. It was said on half of the,appellant That Fundamental Rule 5 6  (f ) consists of two separate and independent parts  with the  result that under the first part member of  the  Indian Civil  Service  retired after 35 years of  service  and  the proviso   according  ’he  appellant  was  the   second   and independent  part  which it with sanction of  the  President permitting  the officer to retain his post for  five  years. The  proviso  cannot  be truncated as  a  separate  part  of Fundamental Rule 56(f).  The proviso and the preceding  part hang together.  Fundamental Rule, 56(f) is to be read in its entirety as an integrated whole.  The proviso to Fundamental Rule 56(f) speaks of end of thirty-five years.   Thirty-five years’   service  is  the  subject  matter  of  the   entire Fundamental Rule 56(f). Fundamental  Rule 56(f) means this.  The Government has  the right to retire a member of the Indian Civil Service at  the end  of  35 years’ service.  A member of  the  Indian  Civil Service  has  also  the right to  retire  after-  35  years’ service.  ’The Government however has the right to retain an officer after 35 years’ service.  The date of retirement  is then  extended.   There  is in fact  no  retirement  of  the officer  from  service.  He still remains a  member  of  the Indian  Civil Service.  The appellant’s contention that  the date  of  retirement  is irrevocably fixed  is  reading  new content  to Fundamental Rule 56(f).  It is correct that  the date  of retirement is 35 years from the date of arrival  in India  of  a  member  of  the  Indian  Civil  Service.   The Government in certain cases may permit an officer to  retain his  post beyond that date.  In those cases in spite of  the stated date of retirement it does not             725 take  place.   It was said on behalf of the  appellant  that there.   is  no  provision  for  postponing  the   date   of retirement.   What  is postponed is retirement and  not  the date.   That  is  because after the date  of  retirement  an officer  is permitted to retain his post.  The two parts  of Fundamental Rule 56(f) namely the first part and the proviso draw  sustenance from each other.  The two are  indissolubly connected.    If  the  two  are  separated  as   independent provisions  their  meaning is lost and  their  applicability becomes impossible. It  was said on behalf of the appellant that the service  of an officer after the date of retirement is not on a par with service  before that date.  This was illustrated first  with reference to entitlement to leave under Fundamental Rule  86 not being the same, secondly, lapse of leave on the date  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 40  

retirement, and, thirdly, that an officer after the date  of retirement  could not have ,any promotion and  therefore  it would not be a continuous employment because the  conditions of’  service  would not be the same.  There  cannot  be  any question  of  promotion of an officer who is retained  in  a post after 35 years’ service.  Nor can it be said that lapse of leave or entitlement to leave will rob the officer of  an extension of service.  The extension of service or  sanction permitting  an officer to retain his post at the end  of  35 years  is a special feature in the rule.  It is not that  an officer  at  that  stage  will  have  to  look  forward   to promotion.   As  for  leave whatever the  leave  rules  will permit he will, be entitled to.  Fundamental Rule 86  speaks of  leave  in  relation to the period  before  the  date  of retirement and the period of being retained in service after the date of retirement. It  cannot  be  said that the extension of  service  of  the appellant was a new appointment or a special contract  apart from  Fundamental  Rule  56(f).  The  appellant  remained  a member  of  the  service.  That is the allegation  of  the appellant  in  the  petition.   The  appellant  enjoyed  the benefits  of  service.   The  appellant  himself  asked  for ’extension.  The Government is right in the contention  that the  appellant is estopped from challenging  the  extension. On behalf of the appellant it was said that the  appellant’s agreement  to extension would not stop him from  questioning the  order because the Government did not indicate  in  what regard  it  acted to its disadvantage and further  that  the Government  could  not have suspended the appellant  in  the month  of  November,  1970 because  the  Government  had  no evidence  at  that time.  The appellant agreed to  and  took advantage of the extension.  The Government acted upon that. The  affidavit evidence on behalf of the Government is  that the appellant wrote a letter on 3 November, 1970 to the then Cabinet Secretary stating that the appellant was willing  to accept an extension of service for 726 about four months from 25 November, 1970.  The  Government decided  to  grant  such an extension.  The  order  of  the, Government  dated  23  November,  1970.  is  alleged  in.the affidavit  to  be  made  pursuant  to  the  letter  dated  3 November,   1970.   The  appellant  cannot  be  allowed   to approbate and reprobate. The extension was asked for ’by the appellant to  facilitate the  enquiry  by Shri Takru.  The appellant  in  his  letter stated  there  were allegations against him  in  respect  of which  he  had  not an opportunity of  having  a  say.   The appellant wanted an opportunity to explain his point of view and  wanted  an extension to facilitate  such.  cause.   The appellant   having  invited  the  Government  to  grant   an extension  cannot be, permitted to turn around and say  that the  extension  is bad.  The appellant has  furthermore  not questioned the extension in the petition.  On the  contrary, the  appellant has proceeded on the basis of  extension  and asked  for  a declaration that the  appellant  retires  from service  on  25 March, 1971.  The Attorney General  made  it quite clear that the estoppel which the Government wanted to raise  against  the  appellant  was  only  with  regard   to Fundamental  Rules 56(f) and 56(ff).  The  estoppel  rightly raised against the appellant in regard to Fundamental  Rules 56(f) and 56(ff) is that the order of suspension was  passed at  a time when the appellant was in service as a result  of being  permitted by the President to be retained in  service for  a  period of four months pursuant  to  the  appellant’s agreement to an extension.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 40  

The  contention  on behalf of the appellant  is  that  under Fundamental  Rule 56(ff) an officer who is under  suspension on a charge of misconduct shall not be required or permitted to  retire on a reaching the date of  compulsory  retirement and  inasmuch  as the date of retirement  of  the  appellant expired  on 25 November, 1970 the order of suspension  dated 23  March, 1971 could not be passed under  Fundamental  Rule 56(ff).  Fundamental Rule 56(ff) is as follows               "Notwithstanding anything contained in clauses               (a),  (d) and (f ) where an officer who  is  a               member of the Indian Administrative Service or               the  Indian  Police  Service  and  who  before               becoming  such  member  was a  member  of  the               Indian Civil Service or the Indian Police,  is               under suspension an a charge of misconduct, he               shall  not be required or permitted to  retire               on reaching the date of compulsory retirement,               but  shall be .retained in service  until  the               inquiry  into  the charge is concluded  and  a               final order is passed thereon by the competent               authority". The  submission  on  behalf  of  the  appellant,s  is   that Fundamental  Rule 56(ff) can only be applicable  before  the date of compulsory                 727 retirement.   The  words ’date  of  compulsory.  retirement’ occurring in Fundamental Rule 56(ff) are not used in any  of the  sub-rules,  in  Fundamental  Rule  56.   The  date   of compulsory.  retirement  relates to the end of 35  years  of service  from the date of arrival in India of an officer  of the  Indian Civil Service as mentioned in  Fundamental  Rule 56(f).   It is only because in Fundamental Rule 56(f) it  is said  that a  member of the Indian  Civil  Service:  shall retire  after 35 years of service counted from the  date  of his,  arrival  in India that the words ’date  of  compulsory retirement’ are used in Fundamental Rule 56(ff). The question which therefore arises is whether the. case  of a  member of the Indian Civil Service being  permitted  with the  sanction of the President to retain the post  after  35 years  of  service  can  be  brought  within  the  scope  of Fundamental  Rule  56(ff).  When there is  an  extension  of service as a result of the sanction. by the President  under Fundamental Rule 56(f) there is no retirement.  The, service is continuous with such adjustments as to leave or promotion or posting as are Permissible or possible.  To accede to the contention  on  behalf of the appellant is to hold  that  a member  of the Indian Civil Service cannot be  placed  under suspension  daring the period of extension of service.   The fallacy   of   the  appellant’s  contention  lies   in   not :appreciating  that the suspension is not under  Fundamental Rule 56(ff).  Fundamental Rule 56(ff) is the consequence  of an order of suspension.  It will be illogical to hold that a member of the Indian Civil Service will not be permitted  to retire because the order of suspension is before the date of compulsory  retirement whereas a member of the Indian  Civil Service  who is on extension of service can be permitted  to retire  even  when an order of suspension has  been  passed. This  is on the assumption that the order of  suspension  is otherwise valid.  The authority and power of the Government to  suspend the appellant in the present case will be  dealt with   hereinafter.   The  date  of  compulsory   retirement mentioned  its  Fundamental  Rule  ’56(ff)  is  to  received meaning in harmony with the various sub-rules of Fundamental Rule  56.   On a reading of the entire rule it  is  apparent that  when the date of compulsory retirement is  allowed  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 40  

pass  bay  an extension of service the words  ’reaching  the date  of compulsory retirement’ in Fundamental  Rule  56(ff) will  apply to the postpone date of retirement  because  the actual  date  of  retirement is shifted.  A  member  of  the Indian  Civil  Service ’receiving an extension has:  not  in fact retired in as, much as the Rules indicate that a member of  the  Indian Civil’ Service has to resign and  apply  for annuity at retirement.  A member of the Indian Civil Service does  not  cease to be a member of the  service  during  the period of extension of service.  Therefore, Fundamental Rule 56(ff)  will apply to a member of the, Indian Civil  Service during the period of extension of his service. 728 The  contention  of  the  Government  is  correct  that  the appellant  is  estopped from questioning  the  extension  of service  asked for by him and sanctioned by  the  President. It,  therefore, follows that if the order of  suspension  is validly  passed  during the period of extension  in  service Fundamental Rule 56(ff) will apply.  As to whether an  order of  retention of the appellant in service is required  under Fundamental Rule 56(ff) during the period of suspension will be dealt with later on. The  second question is if there is an extension of  service under  Fundamental  Rule 56(f) what will be the  period  for such  extension.   Fundamental  Rule  56(f)  states  in  the proviso that if a member of the Indian Civil Service has- at the  end of thirty-five years’ held his post for  less  than five  years, he may, with the sanction of the President,  be permitted  to retain his post until he has held it for  five years.   The appellant became Secretary in the Ministry  of. Petroleum  and Chemicals in the month of January, 1965.   On 22  February, 1969 the appellant became Secretary,  Ministry of  Works,  Housing and Urban  Development.   Therefore  the contention  of  the appellant was that his  "tension  should have been for a period of five years upto 21 February,  1974 to  enable him ’to. retain that post’.  With regard  to  the order  passed on 23 November, 1970 whereby the  services  of the appellant were ,extended upto 25 March, 1971 it was said first  that  the  order did not state as to  what  post  the appellant  held and secondly the order did .not say  that-he was  permitted to retain the post until he had held  it  for five years.  It was thus contended that the order was bad. Fundamental  Rule  56(f) which speaks of retention  of  post with the sanction of the President is not a matter of right. As far as a member of the Indian Civil Service is  concerned it  is a matter of discretion with the Government as to  who will be allowed to retain his post and for what period.  The immanent  idea  in Fundamental Rule 56(f) is that  in  cases where a member of the Indian Civil Service at the end of  35 years’  service has held his post for less than  five  years the  Government may permit him to retain his post  until  he has held it for five years.  The word ’post’ means in affect office.   Fundamental Rule 56(c) (i) which  corresponded  to Fundamental  Rule  56(f) used the  expression  ’post’  and Article  565 of the Civil Service Regulations which  was  in existence  prior  to the coming into  force  of  Fundamental Rules  in  1922 spoke of ’office’.  Fundamental  Rule  56(f) does not refer to a tenure post.  There are no cadres in the Centre.  Each State has cadre posts and for each State there are   senior  posts  under  the  Central  Government.    The appellant  did not hold a tenure post.  The services of  the appel lant  were  extended for four months with  the  result that he was permitted to retain the post he was holding. 729 In view of the fact that the appellant was permitted by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 40  

President  to retain his PM the only question is as  to  the period for which he could be asked to retain his post.   The Attorney General gave instances where members of the  Indian Civil  Service who on completion of 3 5 years’ service  were given  extension.   At these instances illustrate  that  the period  for  which extension of service was  granted  ranged from  1 month and 22 days to 13 year and six months.   These instances  further indicate that the total period for  which these  officers  held the post inclusive of the  period  for which extension was given ranged from 1 year and 11  months, to  4  years 10 months and 27 days.  Shri G. S.  Bajpai  was appointed Secretary-General of Ministry of External Affairs, Government  of India on 27 January, 1947.  He  completed  35 years’  service  on  24 November, 1950.   He  was  given  an extension for one year and six months and hold that post for 4  years 10, months and 27 days.  Shri Vishnu Sabay who  was appointed  Cabinet  Secretary,  Government of  India  on  25 August,  1958  completed 35 years’ service  on  6  December, 1960.  He was given an extension for one year 4 months and 1 0 days with the result that he retained the post of  Cabinet Secretary  for  3 years 7 months and 22 days.   Shri  G.  R. Kamath  who  was appointed Secretary,  Planning  Commission, Government  of India on 22 April, 1965 completed  35  years’ service on 20 November, 1966.  He was. given an extension of service  for  7 months and II days with the result  that  he retained the post for 2 years 2 months and 9 days.  Shri  N. N. Wanchoo, who was appointed Secretary to the Government of India, Ministry of Industrial Development on 13 March,  1967 completed  35 years’ service on 23 November, 1969.   He  was given  an extension of service for 1 month and 22 days  with the result that he retained that post for 2 years 10  months and  2  days.  Shri B. Sivaraman who was  appointed  Cabinet Secretary on 1 January, 1969 completed 35 years’ service  on 30  November., 1969.  He was given an extension  of  service for 1 year with them result that he retained the post for  1 year and It months.  Shri B. B. Paymaster who was appointed Chief  Secretary  to  the Government  of  Maharashtra  on  5 September, 1967 completed 35 years’ service on 24  November, 1970.   He  was given an extension 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, using and Urban Development on 22  February,  1969  completed  35  years’  service,  on  25 November,  1970.  He was given an extension of  service  for four months with the result that-he was Permitted to retain, the post for 2 years 1 month and 4 days. The  various  instances  of  extension  of  service  of  the members, of the Indian Civil Service on which the Government relied  indicate  these  features.   First,  the  order   of extension is of the same 730 pattern.   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  extended  for  a period upto. Therefore, the order does not indicate that the person concerned is mentioned,with reference to a particular post.  Secondly, these instances further-establish that  the extension of service 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  five   years. Therefore, it follows that under Fundamental Rule 56(f)  the exten sion  can  in fact be for any period with  the  result that  the total period inclusive of the extension  does  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 40  

exceed five years. Article  565(a)  of the Civil Service Regulations  spoke  of office’ land thereafter Fundamental Rule 56(c)(i) and Funda- mental Rule 56(f) spoke of ’post’.  The word ’post’ and  its previous  counterpart  the word ’office’  mean  position  in service.  the Indian Administrative Service  (Cadre)  Rules, 1954 cadre post means any of the posts specified under  item I of each cadre in the Schedule to the Indian Administrative Service (Fixation of ,Cadre Strength) Regulations, 1955.  In the 1955 Regulations posts are mentioned for each State.  In the Centre there is no cadre.  There are senior posts.   The members  of the Indian Civil Service come and occupy  senior posts under the Government of India.  Such officers of’  the Indian  Civil  ’Service  who come and occupy  posts  in  the Central  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 high post’ mean, first  that  he remains  a  member  of,  the  Indian  ,Civil  Service,   and secondly, he is kept. in that place 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.   The extension can before 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 conte ntion  will  mean that even extension will  be  for  5 years,  That is against the term and spirit of the rule  and against  the’  practice  and  precedents  in  the   service. Therefore. the second contention of the appellant fails. The third contention of the. appellant is that the order  of suspension is bad because no disciplinary proceedings by way of 731 inquiry  were, commenced prior to the order  of  suspension. Rule  3(1)  (a)of  the AR  India  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 proceedings is satisfied that  it               is  necessary  or  desirable  to  place  under               suspension the ’member of the Service  against               whom   such  proceedings  are  started,   that               Government may-               (a)   if the member of the Service is  serving               under  it,  pass an order  placing  him  under               suspension". The three features of the rule are these,.  The first is the authority  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 (1) (a) for placing a  member  under suspension   is   the   Government   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 suspension  the  member  of  the service.  It is not that the Government can pass an order of suspension against anyone.  The person against whom an order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 40  

can  be  made is a member of the service against  whom  such proceedings  are  started.  Here again, the  words  ’against whom  such proceedings are started’ are descriptive  of  the words ’member of the service’.  There no restriction on  the power  to  suspend by making it dependent on  the  condition precedent of the commencement of inquiry articles of  charge against the Government servant. Counsel on behalf, of the’ ’appellant contended that if  the Government  would  have  power to place  a  member  of  the’ service  under suspension in the absence of commencement  or initiation of disciplinary Proceedings by inquiry the  power would  be  arbitrarily  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 contention   cannot  be  a  consideration  to  interpret   a provision  by approaching the content of the power with  the fear  that  power might be abused.  There are  remedies  for abuse  of powers by any authority.  The person against  whom power  is used arbitrarily or malafide will always have  the right  to  come to a court of law for redress of  his  grie- vances.   The  courts of law will in the  administration  of justice protect a person against any arbitrary action of the authorities.,  It  was  also  submitted  on  behalf  of  the appellant that 732 the order of suspension was made to humiliate the appellant. It  was not alleged that the order was made  malafide.   The fact that the appellant happens to be a member of the Indian Civil  Service  will have no relevance  in  considering  the extent of the power or exercise of 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 facie  case  is established  against  the appellant.  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 by the Government without taking into consideration the  affidavit  filed  by the Government  before  the  Takru Commission.  In the affidavit filed by the appellant in  the High  Court  it  was alleged in paragraph  27  that  in  the affidavit filed before the Commission the Government  upheld the  decision  taken by the authorities  and  therefore  the order  of suspension against the appellant did not have  any basis.  There was no allegation that the Government had  not considered  the affidavit.  No opinion need be expressed  on the merits and demerits of the rival cases contained in  the affidavit  evidence  before  the  Takru  Commission.   Those allegations  and  defenses are within the  province  of  the inquiry.   The affidavit evidence in the petition  filed  by the appellant is that the Government considered the  matter. The order dated 23 March, 1971 indicates that the  President after  carefully  considering  the  available  material  and having  regard  to  the nature of the  charges  against  the appellant  and  the circumstances of the case  is  satisfied that  it is necessary and desirable to place  the  appellant under  suspension.   Therefore,  the  satisfaction  of   the President  is established by objective consideration of  the materials. Counsel on behalf of the appellant contended that the  power of  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  proceedings  were  initiated   and commenced only by giving the Government servant ’articles of charge’  for  submission  of defence  before  the  inquiring autho

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 40  

rity as mentioned in Rule 8 of the All India  Services (Discipline  and  Appeal) Rules, 1969.  Rule 3  of  the  All India Services (Discipline and Appeal) Rules, 1969 is  under the  general  heading  of  suspension  during   disciplinary proceedings. There are seven sub-rules in Rule 3. Under  the first sub-rule which forms the subject matter of the present appeal  the Government which initiates any disciplinary  may pass  an order placing a member under suspension’  when  the Government is satisfied that it is necessary to place  under suspension  the  member against whom  such  proceedings  are started.   There are two other sub-rules in Rule 3  to  show that when criminal charges and investigations or 733 trial are pending against a Government servant or when he is detained in official custody for more than 48 hours he  will be deemed to be under suspension.  These sub-rules establish that  the  power of suspension is  exercisable.in  instances other  than  inquiry under Rules.  A  criminal  trial  comes latter  on.   But suspension takes place  earlier  than  the trial during the investigation.  It is really the gravity of the  charge which will weigh in ordering  suspension.   Rule 3(1)(a)  does  not  say  that  the  Government   which   has initiated  disciplinary  proceedings may pass  an  order  of suspension.   Rule  3  (1) (a) does not say  that  a  member against   whom  such  proceedings have been started  can  be placed  under suspension.  On the contrary the words  ’which initiates  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 disciplinary proceedings in the  form of inquiry into charges is not ’the prerequisite of an order of suspension. Under Rule 3 (1) (a) the power of the Government is to place a  member under suspension when it is satisfied that  it  is necessary  or desirable to place a member under  suspension. A  prima facie case has been established as a result of  the report   of  the  Takru  Commission.   The  Government   has considered that.  Disciplinary proceedings are contemplated. That is the basis of the order of suspension.  In Rule 3  it is said that ’having regard to the nature of the charges and the  circumstances in any case’ the Government may  pass  an order.    The  words  ’nature  of  the  charges’   and   the circumstances  in any case in Rule 3 are different from  the procedure  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  authority  shall  draw  up   the substance  of  the imputation of misconduct  or  misbehavior into  definite  and  distinct  articles  of  charge  and   a statement of the imputation of misconduct or misbehaviour in support  of each article of charge is also to be drawn  rip. 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 nature of the charges’ in Rule 3 and articles  of charge  in  Rule 8 mean the same thing.  Rule 3 is  of  much wider amplitude inasmuch as the words used in Rule 3 ’nature of  the charge and the circumstances in any case’ show  that the  area is more ample.  The two qualifying words  ’nature’ and ’circumstances’ accentuate the difference between  Rules 3  and  8  in regard to the time and  the  manner  of  their operation.   The case that is contemplated in Rule 3 is  the prima  facie  case and the nature of charges in  that  case. The explanation to Rule 6 of the All India Services  (Death- cum-Retirement  Benefit)  Rules, 1958 states that  a  disci- plinary proceeding shall be deemed to be instituted when the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 40  

6-L643SupCI/72 734 charges trained against the pensioner are issued to him, or, if he has been placed under suspension from an earlier date, on  such  date.   It was said that Rule 6  which  speaks  of recovery  from pension on any pecuniary loss caused  to  the Central  or the State Government from a pensioner  was  not applicable to members of the 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 disciplinary  proceedings commenced when he is placed  under suspension but it will be not so in the case of a member  of the  Indian  Civil Service.   Disciplinary  proceedings  are wider  in import than inquiry by a Board for  finding  facts and  ascertaining the truth.  That is why suspension  is  an interim measure in aid of disciplinary proceedings and is in itself  a disciplinary matter so that the officer  concerned does  not  gain  custody or control of papers  or  take  any advantage of position or power in service. In S. Govinda Menon v. The Union of India & Anr. (1) 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 India Services (Discipline and: Appeal)  Rules, 195  5.  The  present  Rule 3  of  the  All  India  Services (Discipline  and Appeal Rules, 1969 came into  existence  in place  of Rule 7 of the All India Services  (Discipline  and Appeal) Rules, ’1955.  Rule 3 is in identical language.   In Govinda  Menon’s(1) case it was contended that the order  of suspension was bad because there was no formal order of  the Government  for instituting disciplinary  proceedings.   The order  of suspension stated that preliminary  inquiries  had shown prima facie that the officer is guilty of  corruption. nepotism  and  other irregularities of  grave  nature.   The order  further  indicated  these  features.   The   detailed enquiry into the charges was in progress.  The evidence  was lo  be collected. In the interest of the proper  conduct  of the enquiry it was necessary that the officer should not  be allowed to continue in that post.  "The officer is suspended till the disciplinary- proceedings initiated against him are completed".   This Court on reading the order of  suspension held  that  it showed that the Government had  accepted  the proceedings   and  had  decided  to  go  forward  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 the All  India  Services (Discipline  and Appeal) Rules, 1969 did not have  the  same meaning.  The word ’charges’ in Rule 5(2) of the 1955  Rules corresponding to Rule 8 of the 1969 Rules (1)  [1967] 2 S.C.R. 566. 735 refers to definite charge or charges which are reduced  into writing  Whereas the words ’having regard to the  nature  of the charges and the Circumstances in any case’ occurring in the present Rule 3 and the corresponding Rule 7 of the  1955 Rules   have   a  Wider  meaning  denoting   accusation   or amputations.  The ruling in Govinda Menon, s(1) case is that there  is power of the Government to suspend a  member  when disciplinary  proceedings  in  the  shape  of  inquiry   are contemplated  and the order of suspension in the  background of  charges  and  circumstances  amounts  to  initiation  of disciplinary proceedings. In the case of Government of India, Ministry of Home Affairs

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 40  

and  Ors. v. Tarak Nath Ghosh(2) this Court had to  consider whether suspension of a member of the Service would only  be ordered  after  definite charges had  been  communicated  in terms  of  the  old Rule, 5 (2)  which  corresponds  to  the present  Rule  8 or whether the Government was  entitled  to place an officer under suspension even before that stage had been  reached after the preliminary investigation  had  been made  into  the conduct of the officer  concerned  following allegations  of corrupt practice levelled against him.   The earlier  decisions  of  this  Court  were  referred  to  and thereafter  it was said ’Merely because the order  mentioned that disciplinary proceedings were contemplated against  the respondent,  as  compared to Rule 7 which  contains  phrases like  ’the initiation of disciplinary proceedings’  and  the ’starting  of  such  proceeding  we  cannot  hold  that  the situation in the present case had not reached a stage  which called   for   an  order  of   suspension.    In   substance disciplinary  proceedings can be said to be started  against an  officer when complaints about his integrity  or  honesty are entertained and followed by a preliminary enquiry  into them culminating in the satisfaction of the Government  that a  prima  facie case has been made out against him  for  the framing  of  charges.  When the order of  suspension  itself shows  that  Government was of the view that  such  a  prima facie  case for departmental proceedings had been  made  out the fact that the order also mentions that such  proceedings were contemplated makes no difference.  Again the fact  that in  other  rules of service an order of suspension  may  be- made  when  ’disciplinary  proceedings  were   contemplated’ should not lead 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  India Service or to one of a matter whether he belongs to All 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 All India Service and a member of  a State Service or a Railway Service". (1)  [1967] 2 S.C.R. 566. (2) AIR. 1971 S.C. 823. 736 These  decisions  indicate the reasons for suspension  of  a member  a the Service against whom disciplinary  proceedings are  contemplated.  The institution on  inquiry  proceedings and  the  imposition of penalty are dealt with  in  separate Rules  in  the  All India Services  (Discipline  and  Appeal Rules,  1969.   Rule  7  thereof  speaks  of  authority   to institute proceedings and to impose penalty.  Rule 8  speaks of procedure of inquiry for imposing major penalties.   Rule 9  speaks of action on the enquiry report.  Then  there  are Rules with regard to orders in the light of the enquiry  and appeals   from  such  orders.   These  provisions   and   in particular   Rule  3  indicate  the  different   stages   of disciplinary   proceedings.   There  is  no   formal   order necessary  for initiation of disciplinary proceedings.   The order   of   suspension  in  the  context   of   preliminary investigation and a prima facie case against the  Government servant  is  appropriately  an  initiation  of  disciplinary proceedings  and  is a step in aid of formal  inquiry  which will be held for imposition of penalty. In  Champaklal Chimanlal Shah v. The Union of India(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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 40  

the  alleged  misconduct.  In the  preliminary  enquiry  the explanation   of  the  Government  servant  is   taken   and documentary and even oral evidence is considered.  When such a  preliminary enquiry makes out a prima facie case  against the  servant concerned, charges are then framed against  him and he is asked to show cause why disciplinary action should not be taken against him.  The Enquiry Officer is appointed. This  is known as the formal departmental enquiry  into  the conduct  of a public servant.  When the enquiry is over  the Enquiry Officer makes a report.  The Government makes up its mind   on   the  enquiry  report.    The   Government   then communicates a copy of the enquiry officer’s report and  its own conclusion.  It therefore follows that after there is  a prima facie Case against the servant concerned as a  result of a preliminary enquiry he is asked to show cause.  In  the present  case  the  Takru Commission  made  the  preliminary enquiry.   The  Takru  Commission  gave  the  report.    The Government  considered the report.  The  appellant  appeared before   the   Takru   Commission.    The   appellant   made submissions.   The Government considered the nature  of  the charges  and  the circumstances of the case and  placed  the appellant   under   suspension.   Therefore   there   is   a preliminary  enquiry.   Disciplinary proceedings  are  under Rule  6  of  the All  India  Services  (Death-cum-Retirement Benefit) Rules, 1958 also deemed to be, initiated by placing a  Go vernment servant under suspension.  Rule 6 apart,  the order  of suspension set in motion disciplinary  proceedings which have different stages. 737      Again,  in the case of R. P. Kapur v. Union of India  & Anr.  this Court considered the suspension of  a  Government servant  on  the  ground that a criminal  case  was  pending against  him. It was contended in that case that  suspension pending  a  criminal proceeding could not be said  to  be  a disciplinary  matter. That argument was not  accepted.    It was  said that suspension is of two kinds. It  is  either  a punishment  or  an interim measure  pending  a  departmental enquiry  or pending a criminal proceeding. Suspension  as  a punishment  is a disciplinary matter. Suspension  pending  a departmental  enquiry or pending a criminal  proceeding  was also  held  to be comprised within the  words  ’disciplinary matters’ within the meaning of Article 314. It was then said "Take the case of suspension pending a departmental enquiry. The purpose of such suspension is generally to facilitate  a departmental  enquiry and to ensure that while such  enquiry is going 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 enquiry. In  such  a  case suspension   pending a departmental enquiry cannot be but  a matter intimately related 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  an 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 of extension of  service  there 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 40  

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 inquiry. If  the Government is satisfied that there is a prima facie case the Government  cannot then remove the Government  servant  from service.  There  will have to be an  inquiry.    Before  the inquiry is  started the Government may find it necessary  in the circumstances of cases to place (1) [1964] 5 S C.R. 190. (2) [1964] 5 S.C.R.43 1. 738 a Government servant under suspension.  Having regard to the charges  the  presence  of the  Government  servant  in  the Department where he worked may embarrass and impede the full investigation   and  collection  of  evidence.    In   these circumstances  of  a  case  the  Government  may  suspend  a Government servant.  The inquiry will take place afterwards. But  till then an order of suspension may become  necessary. The entire gamut of disciplinary proceedings will  therefore embrace  the preliminary inquiry into allegations,  a  prima facie opinion of the Government as a result thereof and  the formal   enquiry   giving  the   Government   servant   full opportunity  to  defend  against  the  articles  of  charge. Secondly, disciplinary proceedings cover the entire range of proceedings   from   the  preliminary   investigation   into complaints  against the honesty and conduct of a  Government servant to the final order of punishment after inquiry under Rule 8. Thirdly, no formal order of initiation of  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 disciplinary proceedings in the form  of departmental  inquiry are contemplated.  This suspension  is not  a  punishment  but  a disciplinary  matter  in  aid  of disciplinary   proceedings.    Suspension  is   ordered   to facilitate  free investigation and collection  of  evidence. It may be that the Government may not after suspension order a  departmental inquiry if there is not  adequate  evidence. Again, where suspension takes place during investigation  of a  criminal case there may tic a departmental  enquiry  even after conviction or acquittal.  The departmental enquiry  is for  inflicting punishment.  Suspension is not so’  That  is why  if  there  is favourable report  after  a  departmental inquiry  the  Government servant may obtain  restoration  of reduction   of   pay  during  the  period   of   suspension. Department   of   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. Therefore,  in  the facts and circumstances of  the  present case the order of suspension was properly and validly  made. Disciplinary  proceedings start when the Government  decides to go ahead with holding an enquiry.  The Government set  up a  Commission headed by Shri Takru.  The suspension  was  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 40  

express act on the part of the Government in the wake of the preliminary enquiry and the report made by Shri Takru. The  fourth contention on behalf of the appellant  was  that the  order  of suspension was bad inasmuch as there  was  no order under 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 1 of the  All  India Services  (Discipline and Appeal) Rules, 1969.   Fundamental Rule  56(ff)  is a Rule laying down the consequences  of  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  concomitant  of  the  order  of   suspension. Furthermore, the language of Fundamental Rule 56(ff) is that notwithstanding anything contained in clauses (a), (d) and (f)  a  member  of the Indian Civil  Service  who  is  under suspension  shall  not be required or permitted  to  retire. Therefore, Fundamental Rule 56(ff) itself contains the words forbidding  retirement of a member placed under  suspension, Fundamental   Rule  56(ff)  means  these   things.    First, Fundamental   Rule 56(f)  is  deleted  from  coming   into operation  during the period of suspension inasmuch  as  the words used are ’notwithstanding anything contained in clause (f)’.  Secondly, the language of Fundamental Rule 56(ff)  is that  he shall not be required or permitted to retire.   The language is not that he shall be required not to retire.  In other words, retirement is negatived by the positive  effect of   suspension.    Thirdly,  the  entire   consequence   of Fundamental Rule 56(ff) is that the member shall be retained in  service until the enquiry into the charges is  concluded and  the  final  order is passed.  This Court  in  State  of Punjab  v. Khemi Ram(1) stressed the importance of  passing, an  order of suspension where a disciplinary  enquiry  could not  be concluded before the date of retirement.   In  short the order of suspension means that he is in service but  his services  are  temporarily suspended and no  retirement  can therefore take place. 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 under  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 after attaining the age of 50/55  years or rendering 30 years’ service as the case might be.   That is   why   the  beading  became  ’Retirement’   instead   of ’Compulsory  Retirement’ to be a correct reflection  of  the provisions.  Therefore, when an order of suspension was made the mandate of Fundamental Rule (1)  [1970] 2 S.C.R. 657. 740 56(ff)   became   effective  and  placed  art   embargo   on retirement.  if an order of suspension were made before  the appellant  completed  3  years  of  service  the  order   of suspension could a fortiori tie made while the appellant was in, the enjoyment of an extension of service.  The result of ’the order of suspension is to suspend the retirement,.  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 40  

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 Fundamental   Rule   56(ff)  infringed  Article   14.    The counterpart  of  Fundamental  Rule 56(ff)  was  Rule  56(d). Fundamental Rule 56 (d) came into existence in the month  of November, 1946.  The gist of Fundamental Rule 56(d) is  that notwithstanding  anything contained in clauses (a), (b)  and (c)  a  Government servant under suspension on a  charge  of misconduct  shall not be required or permitted to retire  on reaching  the  date of compulsory retirement  but  shall  be retained  in  service until the enquiry into the  charge  is concluded  and a final order is passed thereon by  competent authority.  In 1962 Fundamental Rule 56(d) was omitted.   In 1970 Fundamental Rule 56(ff) came into existence.  It is  in the same language as the previous Fundamental Rule 56(d)  as far  is members of the Indian Civil Service  are  concerned. It  was said on behalf of the appellant that  comparison  of Article   351A   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 351A  of  the  Civil Service Regulations was relined on by the appellant to  show that  there  was discrimination against the members  of  the Indian  Civil  Service  inasmuch  as  under  Civil   Service Regulations   351A   a  Government  servant   against   whom disciplinary proceedings were pending could be permitted  to retire.   Fundamental Rule 56(d) applied to the  members  of the Indian Civil Service prior to the Constitution and was a rule upto 1962 when it was deleted.  Fundamental Rule  56(d) was  not in existence upto 1970.  All that happened in  1970 was  to restore Fundamental Rule 56(d).  There are no  rules under  which  departmental  proceedings  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 741 Service  upto 1962.  For some 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 the All  India  Services  (Death-cum- Retirement  Benefit)  Rules,  1958  could  not  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 40  

respects.  The appellant’s insistence on the right to retire will  completely nullify any disciplinary  proceedings  once the retirement takes into effect.  That is why the appellant was  placed  under  suspension.  There is  no  violation  of Article 14. The  contentions  of  the appellant  fail.   The  appeal  is therefore  dismissed.  Parties will pay and bear  their  own costs. ORDER 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. 742