Full Judgment Text
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PETITIONER:
D. D. SURI
Vs.
RESPONDENT:
A. K. BARREN & ORS.
DATE OF JUDGMENT06/02/1976
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1976 AIR 1069 1976 SCR (3) 350
1976 SCC (1) 967
ACT:
Prevention of Corruption Act, 1947-Sec. 5(2)-All India
Services (Discipline and Appeal) Rules 1955-Rule 7(3)-
Suspension order without following administrative
instructions whether valid-Meaning of investigation-Inquiry
and trial-Whether suspension comes to an end on retirement.
HEADNOTE:
The appellant was an erstwhile member of the Indian
Administrative Service in the cadre of the State of orissa.
At the relevant time in the year 1967, he was serving as
Commissioner of Land Reforms, orissa. According to the
appellant he had disputes, differences and animosity with
respondent No. 1, the Chief Secretary to the Government of
orissa and respondent No. 2 who was at the relevant time
Director of Vigilance and Additional Secretary to the
Government of orissa. The First Information Report was
lodged against the appellant under s. S(2) of the Prevention
of Corruption Act, 1947, on 24-11-1967. The appellant’s
house was searched on 27-11-1967. An order of suspension was
made against the appellant by the Government of orissa on
28-11-1967 under rule 7(3) of the All India Services
(Discipline and Appeal) Rules, 1955. The Writ Petition filed
by the appellant against his order of suspension and
investigation was dismissed by the High Court in limine.
This Court allowed an appeal filed by special leave by the
appellant against the High Court judgment and directed the
High Court to admit and dispose of the petition in
accordance with law.
The State Government approached the Central Government
to accord sanction for prosecution of the appellant. In
spite of reminders, the Central Government neither accorded
the sanction nor refused it. Appellant was compulsorily
retired by the Government in 1971. Thereafter, charge-sheet
was submitted against him in the Court of the Special Judge,
Sambalpur. The trial concluded but because of the stay order
passed by this Court judgment could not be delivered.
Against the order of the compulsory retirement, the
appellant filed a writ petition in the Delhi High Court
which was dismissed by a learned single Judge and against
which a Letters Patent appeal is pending. The orissa High
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Court dismissed the writ petition of the appellant on the
ground of it having become infructuous since the appellant
was no longer in suspension since he was compulsorily
retired. The High Court also did not think it necessary to
examine the legality of the investigation against the
appellant as chargesheet had already been submitted.
In an appeal by special leave the appellant contended:
The suspension order may be quashed on the following
grounds:
(1) It was passed without following the various
Governmental instructions on the point.
(2) The order was in violation of rule 7(3).
(3) The order was malafide.
^
HELD: (1) It is true that all the instructions
contained in the circulars issued by the Central Government
do not seem to have been strictly followed. That would,
however, not invalidate or nullify the order of suspension
made under rule 7(3). In dealing with the cases of high
officers of the Administrative Service care ought to have
been taken to follow the instructions as far as possible. On
the facts of the present case. however. failure to follow
the instructions fully, does not render the order of
suspension per se invalid. [353GH]
(2) Under rule 7(3) a member of the Service in respect
of or against whom an investigation, enquiry or trial
relating to a criminal charge is ponding, may at the
discretion of the Government be Placed under suspension. The
351
expression investigation, enquiry and trial are well known
in the realm of the A criminal law under the Criminal
Procedure Code. In the present case, the First Information
Report was lodged and the search warrants were issued before
the suspension orders were passed. Most of the allegations
against the appellant were in relation to his alleged acts
of corruption and misuse of his official position. Whether
the allegations are true or false is irrelevant. Order under
rule 7(3) was, therefore, legal and valid. [354A-E]
(3) The suspension order came to an end by the
compulsory retirement of the appellant. After retirement
from service he could no longer be deemed to be under
suspension. Since we are remitting the case back to the High
Court we permit the appellant to raise the question of his
salary and emoluments during the suspension period to be
raised in the High Court. The counsel for the appellant,
however, assured this Court that if the appellant would be
exonerated of the charges levelled against him and acquitted
in the criminal proceedings the State Government would pay
him his full pay and allowances for the period of
suspension. [354G-H, 355B-C]
(4) We do not think it advisable to decide the point of
malafide in the absence of the judgment in the criminal
cases. Since the two matters are so interwoven and
interconnected that it would be expedient for the High Court
to decide this issue after the judgment is delivered in the
criminal trial. [3 55D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 292 of
1973.
(Appeal by special leave from the judgment and order
dated the 25-4-1972 of the orissa High Court of Judicature
at Cuttack in O.J.C. No. 82 of 1968).
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S. N. Andley and A. Subbarao for the appellant.
M. C. Bhandare and B. Parthasarathi for respondent No.
3.
M/s. S. N. Prasad and Girish Chandra for respondent No.
4.
The Judgment of the Court was delivered by E
UNTWALIA, J.-The appellant in this appeal by special
leave is Shri D. D. Suri-an erstwhile member of the Indian
Administrative Service in the cadre of the State of Orissa.
Shri A. K. Barren, I.A.S. the Chief Secretary to the
Government of orissa at the relevant time was impleaded as
respondent no. 1. He died during the pendency of this
appeal. Therefore, his name is directed to be expunged. For
the sake of convenience, however, he will be referred to
hereinafter in this judgment as respondent no. 1. Shri S. K.
Ghosh, l.P.S. respondent no. 2 was at the relevant time
Director of Vigilance and Additional Secretary to the
Government of orissa in the Political and Services
Department. He has since retired and no notice of this
appeal could be served on him. Even so the appeal proceeded
to hearing as for the disposal of this appeal, his
appearance was not necessary. The State of orissa is
respondent no. 3, and the Government of India is respondent
number 4. Respondents 5 and 7 are other officers of the
Government of Orissa.
It is an unfortunate protracted litigation with a
chequered history. Yet we do not find it possible to bring
it to conclusion by our judgment.
The appellant was appointed to the Indian
Administrative Service and joined as an Additional District
Magistrate in the State of orissa in November, l950.
According to his case due to some actions which he took
against some big political persons, he incurred their
displeasure
352
in the year 1952. Sometime after he came on deputation to
the centre but went back to orissa in April, 1965. At the
relevant time in the year 1967 he was serving as
Commissioner of Land Reforms orissa. According to his case
he had disputes, differences and animosity with respondent
no. 1 and later with respondent no. 2 also. The appellant by
stating very many facts, which are not necessary to be
enumerated in this judgment endeavoured to make out a case
of male fides against respondents 1 and 2 and asserted that
he was put to trouble and unwarranted and illegal actions
were taken against him by or at the instance of respondents
1 and 2.
A First Information Report was lodged and Sambalpur
Vigilance P.S. Case No. 23/1967 was instituted against the
appellant on November 24, 1967 under section S(2) of the
Prevention of Corruption Act, 1947. An application for
search warrant was made before the Additional District
Magistrate, Sambalpur on the same date i.e. 24-11-1967 and a
search warrant was issued. The appellant’s house at Cuttack
was searched on and after 27-11-1967. An order of suspension
was made against the appellant by the Government of orissa
on the 28th November, 1967 under Rule 7(3) of the All India
Services (Discipline and Appeal) Rules, 1955-hereinafter
referred to as the Rules. The appellant filed a writ
petition (OJC 82/1968) in the orissa High Court in January,
1968 to challenge the order of suspension and the
investigation made and proceeded against him. The writ
application was dismissed by the orissa High Court in
limine. Civil Appeal No. 679/70 filed by special leave
against the order of the orissa High Court was allowed by
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this Court on 22-l0-1970. The writ application was directed
to be admitted and disposed of in accordance with law.
Certain subsequent developments and events are
necessary to be noted. The State Government moved the
Central Government on November 23, 1968 after stating the
facts in detail to accord sanction for prosecution of the
appellant as the materials collected during investigation
revealed a prima facie case in relation to the charges of
cor ruption and misuse of his official position by the
appellant. In spite of reminders the Central Government
neither accorded sanction for the prosecution of the
appellant nor refused it. Without sanction of the Central
Government no Charge-Sheet could be submitted against the
appellant for his prosecution so long he remained in
government ser vice. It seems. however, that the appellant
was compulsorily retired by the appropriate government on
June 9, 1971. Thereafter on November 8, 1971 Charge-Sheet
was submitted against him in the Court of the Special Judge,
Sambalpur. In Transfer Petition No. 2/73 this Court
transferred the case to the file of another Special Judge.
On the splitting up of the original case the trial of
several cases proceeded against the appellant in the Court
of the Special Judge. The trial concluded but because of the
stay order passed by this Court, judgment could not be
delivered until the disposal of this appeal and LPA 3/73
pending in the Delhi High Court. Against the order of
compulsory retirement, the appellant fired a writ petition
in the Delhi
353
High Court. It was dismissed by a learned single Judge on
November 16, 1972. LPA 3/73 is directed against the said
order of dismissal
A Bench of the orissa High Court by its order dated the
25th April, 1972, the order under appeal, has again
dismissed the writ petition (OJC 82/1968) as being
infructuous. It has taken the view that since the appellant
has already retired from service he is no longer under
suspension. Therefore, the legality of the suspension order
is not necessary to be examined. Nor did the High Court
think it necessary to examine the legality of the
investigation against the appellant as Charge-Sheet had
already been submitted.
Mr. S. N. Andley, learned counsel for the appellant
asked us to quash the suspension order and strenously urged
the following three grounds:
(1) That it was passed without taking the various
preliminary steps of prelirninary enquiry or
investigation as was necessary to be done in
view of the various governmental
instructions. D
(2) That the order was not warranted by and was
in violation of Rule 7(3) of the Rules.
(3) That the charges levelled against the
‘appellant were all baseless, frivolous and
false. They were levelled and the suspension
order was made mala fide.
In support of the first submission our attention was
drawn to the various executive instructions issued by the
Central Government as also the State Government of orissa to
show as to how and in what manner preliminary steps had to
be taken and enquiry made by the governmental authorities
concerned before putting a government servant and especially
a member of the Administrative Service under suspension.
Counsel submitted that nothing was done in accordance. with
those instructions before the lodging of the First
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Information Report on November 24, 1967. The action was
taken male fide in all haste without observing the
requirements of the law as contained in the executive
instructions. On the other hand, Mr. M. C. Bhandare, counsel
for the Government of orissa pointed out that the Vigilance
Department of the state Government had made preliminary
enquiries and then taken action. We do not consider it
necessary to discuss in any detail or record any definite
finding one way or the other in respect of this bone of
contention between the parties. We may only observe that all
instructions contained in the various letters and circulars
of the Central Government do not seem to have been strictly
followed. But that will not invalidate or nullify the order
of suspension made under Rule 7(3) of the Rules. In dealing
with the. cases of high officers of the Administrative
Service, care ought to have been taken to follow the
instructions as far as possible. Yet on the facts of this
case we are not prepared to hold that failure to follow the
instructions fully, per-se, made the order of suspension
invalid.
354
Sub-rule 1 of Rule 7 of the Rules provides for the placing
under suspension a member of the service against whom any
disciplinary proceeding has been initiated. Under that sub-
rule without the initiation of the disciplinary proceeding
an order of suspension could not be made. Under sub-rule 2 a
member of the service who is detained in official custody
for a period longer than 48 hours is to be deemed to have
been suspended by the government concerned. We shall now
read sub-rule 3 of Rule 7.
"A member of the Service in respect of, or against
whom. an investigation, inquiry, or trial relating to a
criminal charge is pending, may, at the discretion of
the Government under which he is serving, be placed
under suspension until the termination of all
proceedings relating to that charge, if the charge is
connected with his position as a Government servant or
is likely to embarrass him in the discharge of his
duties or involves moral turpitude."
Under the sub-rule aforesaid it is clear that a member of
the service can be placed under suspension if against him an
investigation, inquiry or trial relating to criminal charges
is pending. The expression ’investigation’, ’inquiry’, or
’trial’ are well-known in the realm of the criminal law
under the Code of Criminal Procedure. In the instant case
when a First Information Report was filed against the
appellant and steps were taken for obtaining a search
warrant for the search of his house, investigation within
the meaning of Rule 7(3) became pending on and from November
24, 1967. The suspension order, therefore, made on November
28, 1967 was well within the ambit of the power of the
government under the said provision of law. Most of the
charges levelled against the appellant, and at this stage,
we do not know whether they were right or wrong, true or
false, were in relation to his alleged acts of corruption
and misuse of his official position.
In our view the making of the suspension order against
the appellant under rule 7(3) of the Rules was legal and
valid. But did It come to an end, if so, when ? The rule
provides that the suspension order may last "until the
termination of all proceedings relating to" the charges.
Appellant’s counsel submitted that, as mentioned in one of
the letters of the State Government to the Central
Government, the investigation was complete on November 23,
1968, hence on the termination of the investigation the
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suspension order terminated. We have no difficulty in
rejecting this argument as unsound. Under rule 7(3) the
suspension order can be made to continue until the
terminanation of all proceedings viz. investigation, inquiry
or trial which may follow the investigation. Strictly
speaking, the investigation could not be said to be complete
until the submission of the Charge-Sheet. Factual completion
of the investigation in November, 1968 did not terminate all
proceedings in relation to the charges levelled against the
appellant. But obviously the suspension order came to an end
by the compulsory retirement of the appellant. After
retirement from ser vice he could no longer be deemed to be
under suspension.
355
During the-hearing of the appeal and in view of certain
new stands A taken in the petition filed in this Court by
the appellant, an interesting point cropped up and that is
this. What was the effect of the appellant’s compulsory
retirement on his suspension ? He was not prosecuted before
his retirement. What is to be the effect of his retirement
on the appellant’s pay and allowances for the period of his
suspension viz. between November 28, 1967 and June 9, 1971.
Does rule 9 of the Rules cover the appellant’s case’?’ If
so, is he entitled to an order in his favour for paying him
full pay and allowances for the said period because he was
made to compulsorily retire without any stigma and not by
way of punishment ? We did not feel persuaded to decide this
aspect of the matter for the first time in this appeal.
Since we are remitting the case back to the High Court, we
permit the appellant to raise this point there, if
necessary, by amendment of his writ petition. We may,
however, hasten to add that the counsel for the State of
orissa assured us that if the appellant would be exonerated
of the charges levelled against him and acquitted in the
criminal proceedings, then the State Government will pay him
his full pay and allowances for the period of his
suspension.
Evidence at the trial is over and only the judgment has
to be delivered. Without the aid of the judgment in the
criminal cases, we did not find it advisable or possible to
decide the third point urged on behalf of the appellant. On
the materials in the records of this case, it will not be
possible to say that the charges levelled against the
appellant were false and that action was taken against him
mala fide. The two matters are so interwoven and
interconnected that we think it expedient to leave the
matter for a fresh decision by the High Court after the
judgment is delivered at the criminal trial which is already
concluded. We vacate the order of stay made by this Court
and direct the Trial Judge to deliver his judgment without
any further delay. The High Court, if necessary, will go
into the question of mala fides when the case goes back to
it on remand and it will do so taking note, inter alia, of
the judgment in the criminal cases.
Nothing we have said in this judgment is meant to
prejudice either party in the disposal of the letters patent
appeal pending in the Delhi High Court in which the
appellant is persuing his challenge to the order of his
compulsory retirement. But it will be desirable, may,
necessary to dispose of LPA 3/1973 pending in the Delhi High
Court at a very early date so that the judgment may be made
use of by . either party, if necessary, in the orissa High
Court in aid of the disposal of the case being remitted back
by us to that court.
In the result we allow this appeal, set aside the order
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of the High Court, remit the case back to it for fresh
disposal in the light of this judgment. We make no order as
to costs.
P.H.P. Appeal allowed.
356