Indian Kanoon - Search engine for Indian Law

40. On these allegations the appellant raised these contentions in the petition. First, the Government acted under Fundamental Rule 56(ff) and there was no order of suspension in existence on the date of compulsory retirement of the appellant. A member of the Indian Civil Service cannot be proceeded against in any disciplinary proceeding after the date of his compulsory retirement from service. Second, the order of suspension passed after the expiry of the date of compulsory retirement cannot prevent the appellant from retiring on 25 March, 1971. The order of suspension is repugnant to law. Third no disciplinary proceedings namely, inquiry had been initiated against the appellant. The order of suspension from service can be passed only in terms of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969. The provisions of Rule 3(1)(a) contemplate suspension of an officer against whom Government initiates any disciplinary proceedings. The order of suspension merely stated that proceedings are contemplated. Therefore, the order is bad. Fourth, Fundamental Rule 56 (ff) is discriminatory in character and violative of Article 14 of the Constitution.

57. The question which therefore arises is whether the case of a member of the Indian Civil Service being permitted with the sanction of the President to retain the post after 35 years of service can be brought within the scope of Fundamental Rule 56 (ff). When there is an extension of service as a result of the sanction by the President under Fundamental Rule 56(f) there is no retirement. The service is continuous with such adjustments as to leave or promotion or posting as are permissible or possible. To accede to the contention on behalf of the appellant is to hold that a member of the Indian Civil Service cannot be placed under suspension during the period of extension of service. The fallacy of the appellant's contention lies in not appreciating that the suspension is not under Fundamental Rule 56(ff). Fundamental Rule 56(ff) is the consequence of an order of suspension. It will be illogical to hold that a member of the Indian Civil Service will not be permitted to retire because the order of suspension is before the date of compulsory retirement whereas a member of the Indian Civil Service who is on extension of service can be-permitted to retire even when an order of suspension has been passed. This is on the assumption that the order of suspension is otherwise valid. The authority and power of the Government to suspend the appellant in the present case will be dealt with hereinafter. The date of compulsory retirement mentioned in-Fundamental Rule 56(ff) is to receive a meaning in harmony with the various sub-rules of Fundamental Rule 56. On a reading of the entire rule it is apparent that when the date of compulsory retirement is allowed to pass by an extension of service the words 'reaching the date of compulsory retirement' in Fundamental Rule 56 (ff) will apply to the postponed date of retirement because the actual date of retirement is shifted. A member of the Indian-Civil Service receiving an extension has not in fact retired inasmuch as the Rules indicate that a member of the Indian Civil Service has to resign and apply for annuity at retirement. A member of the Indian Civil Service does not cease to be a member of the service during the period of extension of service. Therefore, Fundamental Rule 56(ff) will apply to a member of the Indian Civil Service during the period of extension of his service.

(a) if the member of the Service is serving under it, pass an order placing him under suspension.

The three features of the rule are these. The first is the authority which places a member of the service under suspension. The second is the time when such order is made. The third is the person against whom the order is made. The authority under Rule 3(1)(a) for placing a member under suspension is the Government which initiates any disciplinary proceedings. The words which initiates any disciplinary proceedings' are descriptive of the word 'Government'. The tune when such an order is passed is when the Government is satisfied that it is necessary or desirable to place under suspension the member of the service. It is not that the Government can pass an order of suspension against anyone. The person against whom an order can be made is a member of the service against whom such proceedings are started. Here again, the words 'against whom such proceedings are started' are descriptive of the words 'member of the services. There is no restriction on the power to suspend by making it dependent on the condition precedent of the commencement of inquiry into articles of charge against the Government servant.

70. In the case of Government of India, Ministry of Home Affairs and Ors. v. Tarak Nath Ghosh this Court had to consider whether suspension of a member of the Service would only be ordered after definite charges had been communicated in terms of the old Rule 5(2) which corresponds to the present Rule 8 or whether the Government was entitled to place an officer under suspension even before that stage had been reached after the preliminary investigation had been made into the conduct of the officer concerned following allegations of corrupt practice leveled against him. The earlier decisions of this Court were referred to and thereafter it was said 'Merely because the order mentioned that disciplinary proceedings were contemplated against the respondent, as compared to Rule 7 which contains phrases like 'the initiation of disciplinary proceedings' and the 'starting of such 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 officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him for the framing of charges. When the order of suspension itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rules of service an order of suspension may be made when 'disciplinary proceedings were contemplated' should not lead us to take the view that a member of an All India Service should be dealt with differently. The reputation of an officer is equally valuable no matter whether he belongs to 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 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".