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PETITIONER: GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS & ORS.

       Vs.

RESPONDENT: TARAK NATH GHOSH

DATE OF JUDGMENT12/02/1971

BENCH: MITTER, G.K. BENCH: MITTER, G.K. RAY, A.N.

CITATION:  1971 AIR  823            1971 SCR  (3) 715  1971 SCC  (1) 734  CITATOR INFO :  O          1972 SC 554  (15,16,17,19,63)

ACT: All  India Service (Discipline and Appeal) Rules, 1955,  rr. 5(2)  &  7-Civil  Servant-Suspension-If can  be  ordered  in contemplation of disciplinary proceedings.

HEADNOTE: Serious allegations of corruption and malpractices had  been made  against the respondent, a member of the Indian  Police Service,  serving in the State of Bihar.  Inquiries made  by the  State Government revealed that there was a prima  facie case  made  out against him.  He was suspended by  an  order which stated that disciplinary proceedings were contemplated against the respondent. On  the question whether the suspension of a member  of  the service can only be ordered after definite charges have been communicated  to  him in terms of r. 5(2) of the  All  India Services (Discipline and Appeal) Rules, 1955, or whether the Government  is entitled to place him under  suspension  even before  that  stage  has been reached  after  a  preliminary investigation, HELD : (1) The fact that in other rules of service there  is specific  provision  for an order of  suspension  even  when disciplinary  proceedings were contemplated, does  not  mean that a member of the All India Service should be dealt  with differently.  It would not be proper to interpret the Rules, which  from  a  self-contained Code,  by  reference  to  the provisions of other rules even if they were made by or under the authority of the President of India. [718 F-G] (2)  Rule 7 expressly provides for suspension of a member of the service, having regard to the nature of the charges, for the purpose of disciplinary proceedings.  The word ’charges’ in  the  rule  means accusations or  amputations  against  a member of the service.  If the disciplinary authority  takes note  of the allegation and is of the opinion  after  preli- minary inquiries that the circumstances of the case  justify further investigation to be made before definite charges can be-framed  it  would not be improper to remove  the  officer from  the  sphere  of his activity  either  by  transfer  or suspension inasmuch as it may be necessary to find out facts from people working under him or look into papers which  are

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in his custody.     Ordinarily when serious imputations  are made  against  the conduct of an officer,  the  disciplinary authorities  cannot immediately draw up the charges  and  in some  cases  a  considerable  time  may  elapse  before  the superior  authority can come to a conclusion  that  definite charges can be levelled against the officer.  Merely because the  order mentions that the disciplinary  proceedings  were contemplated  it  cannot be held that the situation  in  the present  case had not reached the stage which called for  an order of suspension.  In substance, disciplinary proceedings can  be said to have been started when complaints about  the integrity  of  an  officer are entertained,  followed  by  a preliminary inquiry into them culminating 716 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 the Government was of the view that such a prima facie case  for launching  departmental  proceedings has been made  out  the fact that the order also mentions that such proceedings were contemplated makes no difference. 1721 B-F; 723 G; 724  G-H; 725 B-C] S.  Govinda  Menon v. Union of India, [1967] 2  S.C.R.  566, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2338 of 1968. Appeal  from the judgment and order dated March 31, 1965  of the  Patna  High Court in Misc.  Judicial Case No.  1207  of 1964. Jagadish  Swarup, Solicitor-General and B. K. P. Sinha,  for the appellants. B.   C.  Ghosh,  P. K. Chatterjee and Rathin  Das,  for  the respondent. The Judgment of the Court was delivered by Mitter, J. The question in this appeal is, whether the order of suspension passed on the respondent on July 31, 1964  was properly struck down by the Patna High Court. The facts are as follows.  The respondent is a member of the Indian Police Service appointed on 25th January, 1937 and at the  material  time he was holding the substantive  rank  of Deputy  Superintendent of Police in Bihar.  In June 1962  he was  posted  at  Ranchi.  He was transferred  to  Patna  and appointed   as  Special  Officer,  Political,  General   and Transport  Department on July 23, 1964.  The order of  which the validity is in question ran as follows :- "Whereas serious allegations of corruption and  malpractices have  been  made  against Shri T. N. Ghosh,  1.  P.,  Deputy inspector General of Police, Southern Range, Ranchi; And  whereas the said Shri T. N. Ghosh is also  reported  to have  contravened  certain  provisions  of  the  All   India Services (Conduct) Rules, 1954; And  whereas the enquiries made by the Government  of  Bihar ;Into these allegations have revealed that there is a  prima facie case made out against him; And  whereas  disciplinary proceedings in respect  of  these matters are contemplated against the said Shri T. N. Ghosh; 717 And whereas the Government of India, after carefully  consi- dering  the  available material, and having  regard  to  the nature  of  the charges and circumstances of the  case,  are satisfied  that it is necessary and desirable to  place  the said Shri T. N. Ghosh under suspension

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Now,  therefore,  the Government of India hereby  place  the said  Shri  T., N. Ghosh, under  suspension  with  immediate effect, until further orders, and direct that the said  Shri T.  N. Ghosh shall, during the period of suspension be  paid such subsistence allowance as is admissible under the rules.         By order and in the name of the President of India.                                         Sd./- K. Sivaraj              Deputy Secretary to the Government of India." The respondent addressed a memorial to the Secretary to  the Government of India, Ministry of Home Affairs on 24th August 1964 complaining against the above order on the ground  that it  was not sanctioned by the rules i.e. All  India  Service (Conduct) Rules, 1954.  In particular his grievance was that as  there  were only allegations against him which  had  not crystallised  into charges an order of suspension could  not be  made  before  departmental  proceedings  were   actually started  and while they were merely contemplated.  He  also- asked  for communication of the nature of  the  departmental proceedings  which  had been started against him  within  14 days  with  a  request  that  the  order  of  suspension  be withdrawn in default thereof.  It appears that there was  no response to this.  The respondent filed his writ petition on September  14,  1964 praying for the quashing of  the  order particularly on the above grounds raised in his memorandum. A  counter affidavit to the petition was filed on behalf  of the  Chief Secretary to the Government of Bihar who was  the third respondent in the petition.  The averments in the said affidavit  were that a report had been made to  the  Central Government against the petitioner on July 6, 1964 and having regard  to  the activities of the petitioner it  had  become necessary to remove him from the field of activities and  as such he had been transferred to, Patna after being  relieved of  his  post on July 1 3, 1964.  It was said  further  that even  before  the  receipt  of  the  suspension  order   the petitioner had been actually questioned by S. P. Verma,  the then Inspector-General of Police, Bihar as early as February 8,  1964  apprising the petitioner that his  activities  had attracted the attention of Government.  It was admitted that departmental  enquiry and investigation into the conduct  of the  petitioner were still going on and as such charges  had not been framed against 718 him.  Finally, it was said that the order was not by way  of punishment and had been passed pending departmental  enquiry into his conduct.  Another  counter  affidavit  was filed  on  behalf  of  the Government  of  India  and  the  Deputy  Secretary  to   the Government  of  India, respondents 1 and 2 in  the  petition wherein substantially the same averments were made as in the counter affidavit on behalf of respondent No. 3. A  large  number of points were canvassed  before  the  High Court  which  examined the provisions of different  sets  of rules and relying particularly on the difference in  wording of  rule  12  of  the Central  Civil  Services  Rules  which empowered the appointing authority to place an officer under suspension  inter  alia,  where  a  disciplinary  proceeding against  him was contemplated or was pending and rule  7  of the   All   India  Services  Rules   (quoted   in   extensor hereinafter)  it  came to the conclusion that the  order  of suspension was not proper.  Further, according to one of the Judges of that Court:               "To  allow  a member of that  (the  AR  India)               service to be placed under suspension  without               the  formal  proceeding in started  may  cause               humiliation  to an officer of such  high  rank

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             without any justification whatsoever.  " According to the other learned Judge who took  substantially the  same view the order of suspension only  indicated  that disciplinary  proceedings  against the  petitioner  were  in contemplation and this was not provided for in rule 7. In  our  view  it  would not  be  proper  to  interpret  the provisions of the All India Service (Discipline and  Appeal) Rules  1955  by reference to the provisions of  other  rules even  if  they were made by or under the  authority  of  the President of India.  The All India Services (Discipline  and Appeal) Rules 1955 as they stood at the relevant time were a self-contained  code-and we have to examine  the  provisions thereof  to  find  out  whether  the  order  passed  on  the petitioner  was justified.  These rules were promulgated  in exercise of the powers conferred by sub-s. ( 1 ) of S. 3  of the  All India Services Act 1951 by the  Central  Government after  consultation  with  the  Governments  of  the  States concerned.   They were applicable to members of  the  Indian Administrative  Service  and  those  of  the  Indian  Police Service.   Cl. 3 of the Rules provided for  penalties  which might for good and sufficient reasons be imposed on a member of the service.  Suspension is not a penalty covered by this clause.  Cl. 4 indicated the authorities who would institute proceedings and impose penalty against mem- 719 bers of the Services.  Cl. 5 which generally dealt with  the procedure for imposing penalties provided by the first three sub-clauses as follows               "(1)  Without prejudice to the  provisions  of               the  Public  Servants Inquiry  Act,  1850,  no               order  shall  be passed imposing  any  of  the               penalties  specified in rule 3 on a member  of               the  Service  unless he has been  informed  in               writing of the grounds on which it is proposed               to  take  action  and  has  been  afforded  an                             adequate opportunity of defending hims elf.               (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.               (3)   The  member  of  the  Service  shall  be               required within such time as may be considered               by  the Government reasonably adequate in  the               circumstances of the case, to put in a written               statement of his defence and to state  whether               he desires to be heard in person.               (4) to (10) It  was only after the written statement was  received  from the  member  that  the Government might,  if  it  considered necessary, appoint a Board of Enquiry or an Enquiry  Officer to enquire into the charges framed against him.  Other  sub- clauses of this rule laid down generally the procedure which was  to  be  adopted in the enquiry.   Rule  7  provided  as follows : "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 it is  necessary  or

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             desirable to place under suspend 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 100SupCI/71 7 2 0 Provided  that  in  cases where there  is  a  difference  of opinion  between two State Governments, the mater  shall  be referred  to the Central Government whose  decision  thereon shall be final.               (2)   A member of the Service who is  detained               in  official  custody whether  on  a  criminal               charge or otherwise, for  a period longer than               forty-eight  hours,  shall be deemed  to  have               been  suspended  by the  Government  concerned               under this rule.               (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               Govt. servant or is likely to embarrass him in               the discharge of his duties or involves  moral               turpitude. Under rule 8 a member of a Service who was placed under sus- pension  was  to  be entitled to receive  payment  from  the Government suspending his subsistence allowance as specified therein. The crucial question in this case is, whether suspension  of a  member of the Service can only be ordered after  definite charges  have been communicated to him in terms  of  sub-cl. (2) of rule 5 or whether the Government is entitled to place an officer under suspension even before that stage has  been reached after a preliminary investigation has been made into the  conduct of the officer concerned following  allegations of   corrupt  or  malpractice  levelled  against  him.    To determine  this  it is necessary to find out the  object  of placing a Government officer under "suspension" in terms  of the said rule. ’Suspension’  according to the Oxford Dictionary means  "the :action  of suspending or condition of being suspended;  the action  of debarring or state of being debarred, esp. for  a time, from a function or privilege; temporary deprivation of one’s  office  or position".  A master can, subject  to  the contract  of  service,  ask his servant not  to  render  any service  without assigning any reason but this would not  be by  way of punishment and the master would have to  pay  the servant   his  full  wages  or  remuneration  in   such   an eventuality.  As Halsbury puts it :               "Whether  or  not  the  master  has  power  to               suspend  a servant during the duration of  the               contract   of   service   depends   upon   the               construction  of the particular contract.   In               the absence of any express or implied term  to

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             the  contrary,  the  master  cannot  punish  a               servant for alleg-               72 1               ed   misconduct   by   suspending   him   from               employment  and  stopping his  wages  for  the               period  of  the suspension."  (See  Halsbury’s               Laws of England, Third Edition, Vol. 25,  Art.               989 page 518). Rule   7  of  the  Service  Rules  expressly  provides   for suspending  of  a member of the Service for the  purpose  of disciplinary  proceedings.   When  serious  allegations   of misconduct  are  imputed  against  a  member  of  a  Service normally it would not be desirable to allow him to  continue in  the post where he was functioning.  If the  disciplinary authority  takes note of such allegations and is of  opinion after  some preliminary enquiries that the circumstances  of the  case  justify further investigation to be  made  before definite charges can be, framed, it would not be improper to remove the officer concerned from the sphere of his activity inasmuch  as  it  may be necessary to find  out  facts  from people  working under him or look into papers which  are  in his  custody  and it would be embarrassing  and  inopportune both  for  the officer concerned as well as to  those  whose duty  it was to make the enquiry to do so while the  officer was  present at the spot.  Such a situation can  be  avoided either by transferring the officer to some other place or by temporarily putting him out of, action by making an order of suspension.   Government may rightly take the view  that  an officer against whom serious imputations are made should not be  allowed to function anywhere before the matter has  been finally  set  at rest after proper scrutiny and  holding  of departmental  proceedings.   Rule 7 is aimed at  taking  the latter   course   of  conduct.  Ordinarily    when   serious imputitions  are made against the conduct of an officer  the disciplinary  authority  cannot  immediately  draw  up   the charges  : it may be that the Imputations are false or  con- cocted or gross exaggerations of trivial irregularities.   A considerable   time  may  elapse  between  the  receipt   of imputations against an officer and a definite conclusion  by a  superior authority that the circumstances are  such  that definite  charges  can  be  levelled  against  the  officer. Whether  it is necessary or desirable to place  the  officer under  suspension  even before definite  charges  have  been framed  would depend upon the circumstances of the case  and the view which is taken by the Government concerned. There would be nothing improper per se if the rules were  to provide  for  suspension  even before  definite  charges  of misconduct  had been communicated to the officer  concerned. The  question  is  whether  the language of  rule  7  is  so correlated to that of rule 5 as to lead us to hold that  the word  "charges"  in  sub-cl.  (1) of rule.  7  must  mean  a definite  charge as mentioned in subcl. (2) of r. 5. It  may be that even a case where definite charges have been  raised against  an  officer  he  may  satisfactorily  explain   the circumstances and the grounds alleged against him in his 722 written  statement.   It is also possible  that  after.  the enquiry  is conducted it is found that the charges  are  all baseless.  In principle we can see no difference between the position  of an officer against whom definite  charges  have been  framed to which he is required to put in  his  written statement and a situation where on receipt of allegations of grave  misconduct against him the Government is, of  opinion that  it would not be proper to allow the officer  concerned to function in the ordinary way.

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The matter is however not res integra and there is a  series of decisions of this Court which throw considerable light on the  power of a master including a Government to  suspend  a servant or an officer under rules of service or even de hors such  rules.   The  law  of  master  and  servant  including Government servants with regard to suspension of an employee was  discussed  at some length in The  Management  of  Hotel Imperial  V.   Hotel Workers’ Union(1).   However  rules  of service   of   Government   officers  did   not   fall   for consideration  there.   Champak Lal Chimanlal  Shah  v.  The Union  of India(1) was a case where a  temporary  Government servant’s  services were terminated.  The case shows, as  is well known, that even More a formal departmental enquiry  is launched  a preliminary enquiry is usually held to find  out whether a prima facie case is made out against a  Government servant.   This  preliminary  enquiry  is  directed  to  the collection  of facts in regard to the work and conduct of  a Government servant in which he may or may not be  associated so  that the authority concern may decide whether or not  to subject the servant concerned to the enquiry under Art.  311 for inflicting one of the three major punishments  mentioned therein  and such a preliminary enquiry may even be held  ex parte.   In R. P. Kapur v. Union of India &  another(3)  the general  principles  governing  a master  and  servant  were discussed in some detail and it was said               "If  there is no express term in the  contract               relating to suspension and payment during such               suspension   or  if  there  is  no   statutory               provision in any law or rule, the employee  is               entitled  to  his, full remuneration  for  the               period of his interim suspension; on the other               hand if there is a term in this respect in the               contract  or  there  is  a  provision  in  the               statute   or  the  rules   framed   thereunder               providing  for  the scale, of  payment  during               suspension,     the   payment  would   be   in               accordance  there with. On general  principles               therefore the authority entitled to appoint  a               public  servant would be entitled  to  suspend               him pending a departmental enquiry (1) [1960] 1 S.C.R. 476, 482.      (2) [1964] 5 S.C.R. 190. (3) [1964] 5 S.C.R. 431, 445. 72 3               into   his  conduct  or  pending  a   criminal               proceeding,  which may eventually result in  a               departmental enquiry against him." There  is  however a direct authority of this  Court  in  S. Govinda  Menon  v.  The Union of  India(1).   The  appellant before this Court was a member of the Indian  Administrative Service.   He was the First Member of the Board of  Revenue, Kerala  State  and was holding the post of  Commissioner  of Hindu Religious and Charitable Endowments.  On the basis  of certain  _ complaints containing allegations  of  misconduct against the appellant in the discharge of his duties as such Commissioner   the  Kerala  Government  instituted   certain preliminary  enquiries and thereafter  started  disciplinary proceedings against him and also placed him under suspension under  rule  7  of the All India  Services  (Discipline  and Appeal)  Rules.  One of the grounds urged by  the  appellant was  that the order of suspension which was dated  March  8, 1963 was not in compliance with rule 7 inasmuch as  definite charges were framed against him only on 6th June, 1963.   On the basis of rule 5(2) it was argued that the word "charges" which  occurred in ’this rule and in rule 7 should be  given the same meaning and no ,order of suspension could be passed

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under  rule 7 before the ,charges in terms of r.  5(2)  were tramed  against  him.  This was turned down  by  this  Court observing (at p. 582) :               "Rule  5(2)  prescribes that  the  grounds  on               which  it is proposed to take action shall  be               reduced  to the form of a definite  charge  or               charges.  The framing of the charge under Rule               5(2) is necessary to enable the member of  the               Service  to  meet the case against  him.   The               language of rule 7(1) is however different and               that  rule  provides that the  Government  may               place a member of the Service under suspension               "having   regard   to  the   nature   of   the               charge/charges  and the circumstances  in  any               case"  if the Government is satisfied that  it               is  necessary to place him  under  suspension.               In view of the difference of language in  rule               5(2)  and rule 7 we are of the  opinion  that.               the word charges’ in rule 7(1) should be given               a wider meaning as denoting the accusation  or               imputation against the member of the Service." It is worthy of note, that in the order of suspension it was stated as follows               "The   Government   have   received    several               petitions  containing serious  allegations  of               official misconduct               (1)   [1967]2 S.C.R. 565.               724               against Shri S. Govinda Menon . . . . Prelimi-               nary enquiries caused to be conducted into the               allegations  have shown prima facie  that  the               officer  is guilty of corruption.  The  Kerala               High Court has also occasion to comment on the               conduct  of the officer in their  judgment  in               O.P. 2306 of 1962 delivered on, 12th  February               1963............               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               XBranch  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........  is   therefore               placed  under suspension under Rule 7  of  the               All  India  Services (Discipline  and  Appeal)               Rules  1955 till the disciplinary  proceedings               initiated against him are completed.’, It  was urged before us that the order of  suspension  there was  different  from the one before us.  While there  is  no doubt that the order against the appellant in the above case was far more detailed both with regard to the nature of  the charges   and  to  the  necessity  of  placing   him   under suspension, in substance there is little difference for  the

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purpose  of rule 7 of the Service Rules.  The order in  this case dated 31st July 1964 shows that serious allegations  of corruption  and  malpractices  had  been  made  against  the respondent and he was also reported to have contravened  the provisions  of  the  All India  Service  Conduct  Rules  and enquiries   made  by  the  Government  of  Bihar  into   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 like  "the initiation of disciplinary proceedings"  and  the "starting  of  such  proceedings" we cannot  hold  that  the situation in the present case had not reached a stage  which called   for   an  order  of   suspension.    In   substance disciplinary  proceedings can be said to be started  against an 7 25 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 proceeding’, 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 matter whether he  belongs to  the All India Service or to one of a humbler cadre.   It is the exigency of the conditions of service which  requires or  calls  for an order of suspension and there  can  be  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. In   the   result  the  appeal  is  allowed   but   in   the circumstances, of the case we direct the parties to pay  and bear their own costs. V.P.S.                         Appeal allowed. 72 6