D. D. Suri Vs. A. K. Barren & Ors
 INSC 22 (6 February 1976)
CITATION: 1976 AIR 1069 1976 SCR (3) 350 1976
SCC (1) 967
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.
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 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
The suspension order may be quashed on the
(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]
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).
S. N. Andley and A. Subbarao for the
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 this Court on 22-l0-1970. The
writ application was directed to be admitted and disposed of in accordance with
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 service. 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
(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 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"
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 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
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 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.