Govt. of India, Ministry of Home
Affairs & Ors Vs. Tarak Nath Ghosh [1971] INSC 50 (12 February 1971)
MITTER, G.K.
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 preliminary 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 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.
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 considering 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
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
alsoasked 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 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 members 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 himself.
(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 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 suspension 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 the contrary, the master cannot punish a servant for alleged
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 concocted 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 sub cl. (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.
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 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 . . . .
Preliminary 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 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........ 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 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.
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