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P.R. Nayak Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 350 of 1971
Judge
Reported inILR1971Delhi29
ActsConstitution of India - Article 14; All India Service (Discipline and Appeal) Rules, 1969 - Rule 3(1)
AppellantP.R. Nayak
RespondentUnion of India
Advocates: C.K. Daphtary,; B.B. Iyengar,; Bishambar Lal,;
Cases ReferredS. Govinda Menon v. The Union of India
Excerpt:
(i) interpretation of statutes--proviso to a section--construction of--fundamental rules - 56(f)--proviso to--whether an exception or a substantive: provision.; that generally speaking the proviso is an exception to the main part of the section but it is recognised that in exceptional cases a proviso may be a substantive provision itself. the proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest. the substantive portion of f.r. 56 and the proviso thereto have to be read as a whole. the proviso is not to be treated as carving something out of the purview. the proviso, thereforee, does not restrict the tenure fixed in the substantive portion of clause (f), nor.....hardayal hardy, j.(1) on 24-3-1971 the petitioner mr: p. r..nayak, an indian civil service, officer, filed a petition under article 226 of the constitution and obtained a rule nisi from this court. on 30-3-1971 he filed an amended petition. the present proceedings arc. based on the amended petition.(2) the challenge in the petition is to an order dated 23rd march, 1971 whereby the petitioner was suspended by the president of india from service with immediate effect. the petitioner prays that the said order being un-constitutional and invalid should be quashed. he also seeks a declaration that since he retired from service on 25th march 1971 he is immune thereafter against any action by the government. a declaration to the effect that the fundamental rule 56(ff) is void and ultra virus of.....
Judgment:

Hardayal Hardy, J.

(1) On 24-3-1971 the petitioner Mr: P. R..Nayak, an Indian Civil Service, officer, filed a petition under Article 226 of the Constitution and obtained a rule nisi from this Court. On 30-3-1971 he filed an amended petition. The present proceedings arc. based on the amended petition.

(2) The challenge in the petition is to an order dated 23rd March, 1971 whereby the petitioner was suspended by the President of India from service with immediate effect. The petitioner prays that the said order being un-constitutional and invalid should be quashed. He also seeks a declaration that since he retired from service on 25th March 1971 he is immune thereafter against any action by the Government. A declaration to the effect that the Fundamental Rule 56(ff) is void and ultra virus of the Constitution is also sought by the petitioner. The petitioner avers that after appearing in the competitive examination for the Indian Civil Service held in London and undergoing a period of probation for one year, the petitioner was admitted to the said Service and executed a covenant with the then Secretary of State for India. The service conditions and benefits to which the petitioner was entitled under the said covenant and other rules were protected after the coming into force of the Constitution under Article 314 thereof.

(3) The petitioner arrived in India on 25th November 1935 and would have retired under Rule 56(f) of the Fundamental Rules after 35 years service continued from the date of his arrival in India. According to the petitioner, the date of compulsory retirement in his case was 24th November 1970 but he did not retire on that date and agreed to accept extension of service by about four months up to 25th March 1971 and would have retired from service on that date.

(4) In December 1960, the petitioner was appointed Managing Director of the Indian Refineries Limited which is a public sector undertaking. From October 1963 to August 1964 he was Chairman and Managing Director of the said company. Thereafter he was appointed Chairman Oil and Natural Gas Commission and held that post till January 1965 when he was appointed Secretary to the Government of India in the Ministry of Petroleum and Chemicals. In February 1969 he was appointed Secretary to the Government of India, Ministry of Works, Housing and Urban Development and was in that post when the impugned order of suspension was served on him on 23rd March 1971. It appears that in April 1970 the Parliamentary Committee on Public Undertakings made a report on certain matters connected with the laying of the oil pipe-lines between Gauhati-Siliguri and Haldia-Barauni-Kanpur from 1961 onwards by the Indian Refineries Limited and later by the Indian Oil Corporation. On the report of that Committee. the Union Government appointed in August 1970 a one-man Commission under the Commission of Inquiries Act, 1952 consisting of Shri J. N. Takru, a retired Judge of Allahabad High Court to go into the report on the various allegations made in the report of the Parliamentary Committee. The inquiry is still in progress and is expected to be completed by about the end of August 1971.

(5) Since the petitioner was working as a Managing Director from 1961 to 1963 and later on. as Chairman of the Indian Refineries Limited, he alleges that it was considered necessary by the Government of India to retain him in service beyond 25th November, 1970 which, according to the petitioner, is the date of his compulsory retirement. The petitioner agreed to continue in service for a period of about four months beyond the date of his compulsory retirement. As the Commission of Inquiry had not completed its proceedings and was likely to continue till August 1971 for completion of its proceedings, the petitioner made an offer to the Government of India to continue him in service for a further period till after the receipt of the report of the Commission of Inquiry. The petitioner's offer was, however, not accepted by the Government and on March 22, 1971 he was called by the Cabinet Secretary and told that the Government of India had decided to suspend him from service. The petitioner has attached the said order of suspension dated March 23, 1971 on various grounds to which we shall refer in due course.

(6) On behalf of Union of India, Shri B. B. Lal, Secretary to the Government of India, in the Department of Personnel, Cabinet Secretariat, has filed an affidavit in. opposition. In the said affidavit it has been stated that the basic complaint of the petitioner in the petition is that the Government of India by their order dated 23rd November, 1970 notified the extension of service of the petitioner up to 25th March 1971. The said order was however, made with the petitioner's consent, to give him an opportunity to vindicate himself in an inquiry that may be held against him.

(7) The deponent admits that the petitioner completed 35 years service on 24th November 1970 as contemplated in clause (f) of F.R. 56. On 3rd November, 1970, however, the petitioner expressed his willingness to accept extension of his service by about four months from 25th November 1970 if the Government of India decided to grant such extension. By its order dated 23rd November, 1970 Government extended the services of the petitioner up to 25th March 1971. In view of this order of extension, the date of compulsory retirement of the petitioner was 25th March 1971 and not 24th November 1970 as alleged by the petitioner.

(8) The deponent states that in January 1967, the India Oil Corporation approached the Ministry of Petroleum and Chemicals for a change in the alignment of the pipe-line in the coal-field areas of Bengal and Bihar on an expenditure of about two crores of rupees. The expenditure was sanctioned but it was desired that an inquiry should be made into the circumstances in which it became necessary to change the alignment. The inquiry was made by Shri N. S. Rao, the then Central Vigilance Commissioner. He submitted his report on 16th April, 1970 but there was no adverse finding against the petitioner. Meanwhile the Parliamentary Committee on Public Undertakings also examined the pipe-line Division of the Indian Oil Corporation and submitted its report to Parliament on 30th April 1970. In that report there was reference to severalconclusions which adversely affected the petitioner. On 22nd August 1970, Government of India. appointed one-maa Commission of Shri J. N. Takru, a retired Judge of the High Court of Allahabad under the Commission of Inquiries Act, 1952 for making inquiry into the several matters arising out of the report of the Parliamentary Committee on Public Undertakings. On a careful consideration of the report of the Parliamentary Committee, the Government framed nine charges against the petitioner and referred them to the Central Vigilance Commissioner for advice. Shri S. .Datt, the .Central Vigilance Commissioner, declined to give advice to Government for certain personal reasons. In October 1970, thereforee, the Government of India, in the Ministry of Petroleum and, Chemicals referred the matter to Takru Commission for advice on.- (i) Whether, and if so what, prima facie .charges may be made against the petitioner in connection with the Report of the Parliamentary Committee on Public undertakings and (ii) Whether any other officers appeared to be involved in any of the charges which might be found is prima facie established The Takru Commission was also asked to suggest as a result of examination of the report any other charge or charges which appeared to it to have been prima facie made out for departmental action against the petitioner. The Commission examined 14 charges against the petitioner but before embarking upon an inquiry into those charges the petitioner was asked to submit his written statement in respect of these charges. The petitioner submitted his detailed Explanationn and replies followed by supplementary replies. On 13th January 1971 Shri J. N. Takru submitted an interim report wherein he came to the conclusion that barring Part (d) of Charge Iii and Charge XIII. the remaining charges against the petitioner were prima facie established. It was in view of the above circumstances that it was decided to hold disciplinary proceedings against the petitioner and the impugned order of suspension dated 23rd March 1971 was passed. The deponent stated that the decision to place the petitioner under suspension was taken at the highest ministerial level on the basis of interim report of Takru Commission. Meanwhile the date of the petitioner's compulsory retirement had been extended under F.R.56(f) up to 25th March 1971 with his own consent.

(9) The deponent docs not dispute that the petitioner would have retired from service on the 25th March 1971 if prior to that date he had not been placed under suspension. But in view of the provisions of clause (ff) of F.R.56 until the contemplated inquiry into the charges against him was concluded and a final order was passed by the competent authority he could not be required to or permitted to retire from service. The order of suspension has been passed under Rule 3 of the All India Services (Discipline and Appeal) Rules, 1959 and not under rule 56(ff) of the Fundamental Rules. The grounds on. which the impugned order has been attacked by the petitioner and his right to claim other reliefs have been traversed and it is asserted that the petitioner is not entitled to any relief as claimed by him. At the hearing of the petition. Mr. C. K. Daphtary counsel for the petitioner, submitted that under F.R.56(f), a specific date has been prescribed with regard to a member of Indian Civil Service and it is Jaid down that a member of that Service shall retire after 35 years of service accounted from the date of his arrival in India. The petitioner having arrived in India on 25th November, 1935 was due to retire on 24th November, 1970 when he had completed 35 years' service. The .proviso to the said clause lays down that if at the end of 35 years service the petitioner was holding a post for less than five years, he could be permitted with the sanction of the President to retain that post until he had held it for five years. According to the petitioner. the last post held by him was that of Secretary to the Government of India in the Ministry of Works, Housing and Urban Development. It was in February 1969 that he was appointed to that post. He could, thereforee, with the sanction of the President be permuted to retain that post till February 1974 but he could do so only if he wanted to retain that post. The election to hold that post was entirely his. and if he desired to hold that post he could hold it for five years and not that he could be compelled to do so. Since the petitioner was due to retire on 24th November 1970, that was the date of his compulsory retirement. Thereafter, if he was retained in that post, it could be till February 1974 and he could not be asked to leave that post before that time.

(10) The argument was however not persisted in as it was realised that though the election to hold that post lay with the petitioner no effect could be given to that election if the President did not give the necessary sanction. The sanction to retain that post could be for the maximum cried of five years and not that the President was bound to give that sanction for that period. A period of five years was the outside limit of the President's sanction.

(11) Mr. Daphtary next contended that in any event since the petitioner did not want to retain that post his services automatically came to an end and he could retire after 35 years service. That period expired on 24th November 1970 and could not be extended by any action taken by the President beyond that period, for that is the period of compulsory retirement in the case of a member of the Indian Civil Service who 'shall retire after that period.' The argument of Mr. Daphtary sounds quite attractive for F.R.56 which deals with the compulsory retirement of Government servants lays down in various clauses the maximum period of service at the close of which the Government servant has to retire. It also lays down the period for which an officer can be allowed to retain a post. or his service is extended beyond the date on which he is due to retire. In the case of a member of the Indian Civil Service that period begins with the arrival of the officer in India and ends with the expiry of 35 years counted from that date. In proviso to clause ( i ) which applies to a member of the Indian Civil Service the words used .are 'permitted to retain his post.' When a member of the Indian Civil Service, thereforee, completes the period of 35 years and he is allowed to hold the post under the proviso he merely 'retains that post.' His right to hold that post beyond the period of 35 years is merely to

'RETAIN that post,' and not that he continues to be a member of the .Indian Civil Service, for the tenure of the post in that service is limited to 35 years. We do not think this is the proper way of interpreting clause (f) with its proviso which reads as under:- 'A member of the Indian Civil Service shall retire after thirty-five years' service counted from the date of arrival in India. Provided that if he has at the end of thirty-five years' service held his post for Jess than five years, he may, with the sanction of the President, be permitted to retain his post until he has held it for five years.'

(12) When a member of the Indian Civil Service is at his election. allowed by the President to retain that post he still continues to do so as a member of the Indian Civil Service. There is no other capacity in which he can be allowed to retain that post which he was holding at a time when he was still a member of the Indian Civil Service for it is that very post that he is permitted to retain until he has held it for five years. The substantive portion of F.R. 56 and the Proviso have to be read as a whole, each portion throwing light, if need be, on the rest. The proviso is not to be treated as carving out some thing out of the purview. Our attention was invited by the learned Attorney General to a decision of the Supreme Court in Commissioner of Commercial Taxes and others v. Ramkishan Shrikishan Jhaver and others : [1967]66ITR664(SC) where it was said that generally speaking, it is true that the proviso is an exception to the main part of the section but it is recognised that in exceptional cases a proviso may be a substantive provision itself. Reference was made in that case to Rhonda Urban District Council, v. Taff Vale Railway Co. 1909 A C 253 where it was pointed out by Lord Loreburn that though Section 51 of Railways Clauses Consolidation Act, 1845 framed as a proviso upon preceding sections, the latter half of it though in form a proviso, was in substance a fresh enactment adding to and not merely qualifying that which went before.

(13) In the case before the Supreme Court a decision of Madhya Pradesh High Court in Commissioner of Income-tax v. Nandlal Bhandari and Sons : [1963]47ITR803(MP) and an earlier decision of the Supreme Court in State of Rajasthan v. Leela Jain : [1965]1SCR276 were cited. In the latter case the question was whether the proviso in the Act was a limited provision to the main provision or was a substantive provision self. It was observed that 'so war as the general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part.' But the proviso in that particular case was really not a proviso in the accepted sense but an independent legislative provision which provided an alternative remedy to that which was prohibited by the main part of the section. Applying the rule laid down in that case it seems to us that the proviso to clause (f) is of this exceptional nature and the proper course is to apply the broad general rule of construction, which is that a section, or enactment must be construed as a whole, each portion throwing light, if need be, on the rest. Viewed in. that light the true renaming of clause (f) and its proviso is that the ordinary tenure of service of a member of the Indian Civil Service is 35 years counted from, the date of the arrival of that member in India. But if at the end of 35 years', service the member is still holding a post for less than 5 years he may with the sanction of the President be permitted to retain his post for the maximum period of 5 years. The post that e holds is the post which a member of the Indian Civil Service is entitled to hold and the effect of the President's order is that he can Continue to retain that post for the maximum period of five years. In other words, the period of his retirement is extended. The proviso, thereforee, does not restrict the tenure fixed in the substantive portion of clause (f) nor does it carve out an exception. Instead it extends that period and is, thereforee, a substantive provision in itself. That the petitioner himself understood this to be the view of clause (f), is apparent from the fact that one of his prayers in the petition is that it should be declared that the petitioner retired from service on 25th March 1971. On behalf of the petitioner, reference was also made to F.R. 86 which is one of the rules relating to grant of leave in Section Iv of the Fundamental Rules. The rule deals with leave admissible to a Government servant in his leave account in the case of compulsory retirement. An examination of the rule, however, shows that clauses (a), (b) and (c) of that rule deal with different situations. In clause (a) leave at the credit of a Government servant in his leave account shall lapse on the date of his compulsory retirement provided that if in sufficient time before that date, he has formally applied for leave due as preparatory to retirement and that leave has been refused, or he has ascertained in writing from the sanctioning authority that such leave if applied for, would not be granted to him. In either case the ground of refusal being the requirements of the public service, the Government servant may be granted after the date of retirement the amount of leave refused, subject to a maximum of six months. In clause (b) where a Government servant has been retained in service after the date of his compulsory retirement, he shall ea,rn leave on average pay at the rate of l / l1th of duty performed after that date and shall be allowed to add there to any amount of leave which could have been granted to him under clause (a) had he retired on that date. The total period which he may take on each occasion shall however not exceed six months. When his duties finally cease the Government servant may be granted leave up to a maximum of six months in the manner mentioned in clause (b). Under Clause (c) the grant of leave under this rule, extending beyond the date on which the Government servant must compulsorily retire or beyond the date up to which the Government servant has been permitted to remain in service, not be construed as an extension of service.

(14) The position, thereforee, is that under F.R. 86 all leave at the credit of Government servant lapses on attaining the age of his compulsory retirement. This rule. however, provides for grant of leave beyond such. date if the Government servant concerned has in sufficient time, formally applied for leave due as preparatory to retirement and the same has been refused or if he has ascertained in writing from the sanctioning authority that such leave, if applied for, would not be granted, the ground of refusal being the requirement of the public service. The maximum limit up to which leave can be refused is six months in the case of persons governed by the Fundamental Rules and 120/180 days in the case of persons governed by the Revised Leave Rules. 1933. This position holds good even if a Government servant is granted extension of service. The leave earned during the period of extension has also to be similarly refused if it is to be enjoyed after the expiry of the extension period. The concession of refused leave is, however, admissible in exceptional eases only where the individual cannot be spared to avail of the leave and has to be kept in service to enable him to work in the public interest. The words 'compulsory retirement' have been used in this rule for that specific purpose and they do not restrict the scope of retirement from service in F.R. 56. The reference in the Rule being to two stages in the service of the officer the words 'compulsory retirement' and 'the officer retained in service' after the date of compulsory retirement have been used to denote two stages. The next contention urged by Mr. Daphtary is that an order of suspension from service in terms of clause (a) of sub-rule (1 ) of rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 could only be made after the disciplinary proceedings had been initiated against the petitioner. It was then for the Government to see whether having regard to the nature of the charges and the circumstances in any case, it was necessary or desirable to place under suspension the member of the Service against whom such proceedings had been stated. It is common ground that no disciplinary proceedings have so far been initiated against the petitioner. On. the contrary the order of suspension merely states that such proceedings arc contemplated. The covering letter forwarding the order of suspension to the petitioner indicates that the proceedings contemplated have reference only to matters arising out of the report of the Parliamentary Committee on Public Undertakings. Since those matters are themselves under inquiry by Takru Commission no disciplinary proceedings could be initiated against the petitioner until at least the receipt of the report of the Commission.

(15) The counter-affidavit filed on behalf of the respondent makes it clear that the proceedings contemplated against the petitioner do not have reference to the final report of the Takru Commission. The proceedings contemplated against the petitioner relate to matters .arising out of the interim report of Takru Commission dated 13th January 1971 in which it was reported that barring one or two exceptions all the charges against the petitioner were prima faces established and could be inquired into in departmental proceedings against him. In the Government of India. Ministry of Home Affairs & others v. Tarak Nath Ghosh : (1971)ILLJ299SC which was a case under the All India Services (Discipline and Appeal) Rules, 1955. rule 7 of the said Rules which with the modifications contained in rule 3 of the 1969-Rules. is more or less the same. it was said that the Government is entitled to place on officer under suspension even before definite charges arc communicated to him when preliminary investigation has been made into his conduct, following allegations or corrupt or mal-practice leveled against him. This was also the view taken by the Supreme Court in S. Govinda Menon v. The Union of India : (1967)IILLJ219SC . The appellant in that. case was a member of the Indian Administrative Service. One of the grounds urged by him was that the order of suspension was not in compliance with rule 7 in as much as definite charges were not framed against him when the order was made. The contention was repelled and it was said that the language of rule 7(1) clearly 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.' The word ''charges' in. rule 7(1) was, thereforee, given a wider meaning as denoting the accusation or imputation against the member of the Service.

(16) In the present case there arc accusations or imputations against the petitioner which call for an inquiry and the Government is satisfied that in the circumstances, it is necessary to place him under suspension. The contention urged on behalf of the petitioner thereforee fails and is rejected. The next argument of the petitioner which has been pressed at some length, is that though the order of suspension is purported to have been made under Rule 3(1) (a) of the All India Services Discipline & Appeal) Rules. 1969 it has in mind the provision of F.R. 56 (ff) which the petitioner maintains is unconstitutional, ultra virus and vocative of Article 14 of the Constitution and is thereforee void. Rule 56(ff) which came into existence in October 1970 reads as under: 'Notwithstanding any thing contained in causes (a) (d) and (f), where an officer who is member of the Indian Administrative Service or the Indian Police Service and who before becoming such member was a member of the Indian Civil Service or the Indian Police, is under suspension on a charge of misconduct, he shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall he retained in service until the inquiry into the charge is concluded and a final order is passed thoreon by the competent authority.' The necessity for this rule was felt as under:-- On 6th November. 1946 the then Secretary of State for India promulgated Fundamental Rule 56(d) which reads as under:- (d) Notwithstanding any thing contained in clauses (a), (b) and (c) a Government servant under suspension on a charge of misconduct 'shall not be required or permitted to retire on reaching the date of compulsory retirement but shall be retained in service until the enquiry into the charge is concluded and a final order passed thereon by competent authority.' This rule was removed and deleted on 22nd August 1962 from the Fundamental Rules. With effect from that date, the Government of India amended instead Civil Service Regulation (C.S.R.) 351-A. The relevant provisions from this Regulation read as under :- The President further reserves to himself the right of withholding or withdrawing a pension or any part of it. whether permanently or for specified period and the right of ordering; the recovey from a pension of the whole or part of any pecuniary loss caused to Government, if in a department or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during, the period of his service, including service rendered upon re-employment after retirement :- Provided that.- (a) Such departmental proceedings, if instituted while the officer was in service, whether betore his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) Such departmental proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment; (i) shall not be instituted save with the sanction of the President; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during the service; (c) No such judicial proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment, shall be instituted in respect of acause action which arose or an event which took place more than 4 years before such institution; and (d) the Union Public Service Commission will be consulted.' As a consequence, the officers of the former Indian Civil Service ceased to be governed by the old F.R.56(d) as the same was no longer in existence. At the same time the provisions of C.S.R. 351-A did not apply to those officers. From 1954 on wards the officers of the former Indian Civil Service became part of the Indian Administrative Service by virtue of clause (a) and (b) of sub-rule (1) of Rule 3 of the Indian Administrative Service (Recruitment) Rules 1954. From 22nd August. 1962 on wards till 6th October. 1970 there was no rule or regulation like F.R.56(ff) which empowered the Government to prevent the retirement from service of the former Indian Civil Service officers on reaching the date of compulsory retirement by suspending them from service prior to the date of compulsory retirement. Under F.R. 56(ff) an officer of the former Indian Civil Service can be suspended from service before reaching the date at compulsory retirement and preventing him from retiring, from service; the primary object of suspension being to take punitive action against him on a charge of alleged misconduct.

(17) Under the provisions of Rule C.S.R. 351-A read with F.R.56. a government servant, other than a former member of the Indian Civil Service, cannot be prevented from retiring from service after reaching the date of compulsory retirement but pending disciplinary proceedings against him can be continued and new proceedings can be intiated. provided the latter relate to anything done within 4 years preceding the date of instituting the proceedings. On the other hand. under Fundamental Rule 56(ff) an officer of the former Indian Civil service can be prevented from retiring on the date of compulsory retirement and can be proceeded against for any alleged misconduct or any of commission or omission committed at any time during, his entire service. There is no limitation of period like the one which exists in C.S.R. 351-A which limits the period to only 4 years preceding the date of initiating proceedings after compulsory retirement. Thus, Fundamental Rule 56(ff) was alleged to be discriminatory in character and vocative of Article 14 of the Constitution of India. This discrimination, it was contended, was clearly visible because two members of the same service, one belonging to the former Indian Civil Service and the other directly recruited to the Indian Administrative Service will be dealt with and proceeded against differently in the matter of disciplinary proceedings; the former Indian Civil Service officer under Rule 56(ff) and the other officer directly recruited to the Indian Administrative Service under C.S.R. 351-A. although both the officers belong to the same service and may be equally situate and circumstanced. The officer directly recruited to the Indian Administrative Service will only be responsible in any new proceedings initiated after the date of compulsory retirement for the alleged acts of misconduct committed during the period of 4 years immediately preceding the date of instituting new proceedings while in the case of an officer of the former Indian Civil Service he can be compulsorily retained in service beyond the date of compulsory retirement and be subjected to disciplinary action for alleged misconduct committed at any point of time during the period of his entire service. It was further contended that there was no jurisdiction in law for treating the' officers of the same service who may be equally situated and circumstanced on a different footing and thus discriminate one from the other in such matters. There was no rational basis for treating the members of the former Indian Civil Service differently under F.R.56(ff) from all the Government servants who were equally highly placed and circumstanced when the object in view was to inflict punishment upon the member concerned for the acts of alleged misconduct. The classification between F.R.56(ff) and C.S.R. 351-A is thereforee not based on any rational differentia between the two The petitioner is right when he says that between 22nd August 1962 when clause (d) of F.R,56 was deleted and Rule 351-A which was in force from 1939 was amended and 6th October 1970 there was no provision, under which disciplinary proceedings could be instituted against a member of the former Indian Civil Service after he had retired from service on the date of his compuslory retirement nor could he be prevented from retiring on or after that date even if a disciplinary proceeding was contemplated against him. This was because of the mistaken view which the Government had entertained to the effect that rule 351-A as amended would adequately cover the cases of all officers including the members of the Indian Administrative Service who were formely members of the erstwhile Indian Civil Service.

(18) According to the affidavit filed on behalf of the respondent this lacuna in the rules was discovered when the Government of India had to consider the question of taking disciplinary action against the petitioner. The new clause (ff) was, thereforee, introduced in F.R.,56 in October 1970. This clause is simply a re-enactment of the old clause (d) which was deleted on 22nd August 1962 and it merely restores the position as it was prior to August 22. 1962 so far as members of the former Indian Civil Service are concerned. The power of suspension of a member of the former Indian Civil Service is derived from Rule 3 (1) (a) of the All. India Services (Discipline and Appeal) Rules, 1969 and not by keeping in view clause (ff) of Rule 56. Clause (ff) simply provides that if such an officer is under suspension on a charge of mis-conduct he shall not he required nor permitted to retire on reaching the date of compulsory retirement but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by the competent authority. It is true that after 1954 the members of the former Indian Civil Service are members of the same All India Service as the members of the Indian Administrative Service hut for historical reasons, the members of the former Indian Civil Service have many other rights and privileges guaranteed to them including the rights not to be proceeded against departmentally after their compulsory retirement. These are not available to those members of the Indian Administrative, Service who were not members of the former Indian Civil Service. The other members of the Indian Administrative Service cannot complain of lack of those rights and privileges by reason of the fact that they too belong to the same service. The members of the Indian Administrative Service who were not the members of the Indian Civil Service cannot complain that so far as disciplinary proceedings instituted. before the date of compulsory retirement arc concerned they are under greater disadvantage than officers like the petitioner who were in the former Indian Civil Service. The fact that they too belong to the same service after 1954 will not help them. If such proceedings are concluded before the date of compulsory retirement, their position is identical irrespective of whether they had been placed under suspension or not. In both cases, such proceedings can be instituted in respect of misconduct committed at any time throughout the official career of the person concerned. If on the other hand. such proceedings. though instituted before the date of compulsory retirement. are not concluded before that date they cannot be continued after such date against a member of the former Indian Civil Service if he was not placed under suspension .before the date of compulsory retirement. However, in the case of other officers including members of the Indian Administrative Service who were not members of the former Indian Civil Service, such proceedings can be continued even after the date of compulsory retirement under Rule 3 51-A of the Civil Service Regulations or Rule 6 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, as the case may be. Similarly, after the date of compulsory retirement no Such proceedings can be instituted against a member of the former Indian Civil Service where as in the case of other officers such proceedings can be instituted even after the date of compulsory retirement as envisaged in Civil Service Regulation 351-A or Rule 6 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 as the case may be.

(19) The distinction between the other officers and members of the Indian Administrative Service on the one part and the members of the former Indian Civil Service on the other part, arises because of the classification based on historical reasons and the protection afforded to the members of the former Indian Civil Service under Article 314 of the Constitution which lays down that except as otherwise expressly provided by the Constitution their conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit, shall be protected. This classification having been recognised by the Constitution cannot be declared invalid or offending Article 14 of the Constitution and has to be accepted. The members of the Indian Administrative Service who were also members of the former Indian Civil Service, thereforee, stand in class by themselves inasmuch as no proceedings can be instituted against them under the rules after the date of compulsory retirement. Clause (ff) of F.R.56 does not subject the petitioner and persons similarly situated to any hostile discrimination vis-a-vis other Government servants and thereforee the question of there being no rational basis for classification does not arise. Rule 56(ff) is nothing more than a re-introduction of old clause (d) of rule 56 which was deleted on 22nd August 1962. It does not, thereforee, impose on the members of the erstwhile Indian Civil Service any new liability.

(20) It was urged on behalf of the petitioner that under Rule 6 of the All India Services (Death-cum- Retirement Benefits) Rules, 1958 which are analogous to Rule 351-A of Civil Service Regulations the Central Government has the right of with-holding or withdrawing a pension or any part of it whether permanently or for a specified period if the pensioner is found in a departmental or judicial proceeding, to have been guilty of grave mis-conduct or to have caused pecuniary loss to the Central Government or State Government by mis-conduct or negligence during his service, including service rendered on reemployment after retirement. Such departmental or judicial proceedings if not instituted while the petitioner was in service, whether before his retirement or during his re-employment, shall not be instituted save with the sanction of the Central Government. It shall also be in respect of an event or cause of action which took place not more than four years before the institution of such proceedings. This rule thereforee shows that an action for with-holding or withdrawing 4-685HCD/71 a pension can be taken against a pensioner while he was still in service or after he has ceased to be in service, provided that the event in respect of which departmental or judicial proceedings are instituted, should not have taken place more than four years before the institution of such proceedings. The loss that the officer to whom this rule applies, suffers is one of withholding or withdrawing a pension or any part of it. It was said that where as an officer of the Indian Administrative Service who was not a member of the former Indian Civil Service can be merely subjected to a loss of pension, the petitioner on the other hand, is being subjected to an order of suspension which deprives him of his right of retiring from service. The economic benefits of which he would have enjoyed including the right of seeking private service after his retirement and the right to live in a place of his own choice, after his retirement. According to the order of suspension he cannot leave his headquarters without obtaining the previous permission of the Central Government. He can also be dismissed or removed from service where as the other officers who are governed by All India Services (Death-cum-Retirement Benefits) Rules, 1958 or Civil Service Regulations, do not have to suffer any such disability. There is also no limitation of four years period like the one which exists in C.S.R. 351-A.

(21) It is true that in the case of a member of the former Indian Civil Service there is no such limitation as to period. Likewise an officer other than a member of the former Indian Civil Service, can be prevented from retiring from service after reaching the date of compulsory retirement. The circumstance that pending disciplinary proceedings can be continued and new proceedings can also be initiated against him provided the latter relate to anything done within four years preceding the date of institution of such proceedings, is a great disadvantage. As against that, in the case of a member of the former Indian Civil Service it is only those proceedings which have been initiated before he reaches the date of compulsory retirement that can be continued against him. There are thus advantages and disadvantages on either side. But all these differences arise because the members of the former Indian Civil service constitute aseparate class. What they lose on the swings they gain on the rounds. For these reasons there is no question of any discrimination involving the infraction of Article 14 of the Constitution. During the course of proceedings we asked the counsel for the petitioner if the petitioner was willing to wait till the conclusion of the inquiry by Takru Commission or he wanted to have a departmental inquiry into the charges that may be farmed against him. We had this in mind because the petitioner is otherwise known to have had an un-blemished record of service. According to the affidavit filed by the Government in the proceedings before the Takru Commission, we are told that the Government of India itself up-held the decision taken by the various authorities including the petitioner, in connection with the execution of the pipe-line projects. We do not not know how far that is correct because it was contended by the learned Attorney-General that the Government itself had not taken any particular stand. But assuming it was so, we would like the charges against the petitioner to be inquired into without any further delay and if it is feasible, departmental proceedings should be held against him at an early date so that if he is innocent of the charges he may be absolved without any un-necessary delay.

(22) With these observations, we are of the opinion that there is no merit in any of the contentions urged on behalf of the petitioner. The petition is accordingly dismissed but in the circumstances, there will be no order as to costs.


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