C.A. Vaidialingam, J.
1. In this writ petition, Mr. M. K. Nambiar, learned counsel for the petitioner, challenges as illegal and void, the order Ex. P-11, passed by the State Government on 8-3-1963 placing, under suspension, the petitioner, who was at the material time, the 1st Member of the Board of Revenue, in the State. The order shows that the petitioner has been placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, till the disciplinary proceedings initiated against the petitioner are completed. It is necessary to state the matters which are mentioned in the order, Ex. P-11, which will show, the circumstances under which the State Government decided to take action under Rule 7.
2. It is mentioned that the Government have received several petitions containing serious allegations of official misconduct against the petitioner who is a member of the Indian Administrative Service and the First Member of the Board of Revenue and was also formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquiries are stated to have been conducted into the allegations and they reveal prima facie, according to the State Government, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. They also refer to certain comments made by a learned Judge of this Court, on the conduct of the petitioner as Commissioner, in O. P. No. 2306 of 1962, in which, judgment was delivered on 12th February 1963.
3. After adverting to the observations of the High Court that the affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Pulpulli Devas-wom, reveal a very disquieting state of affairs and, that due notice will have to be taken by the competent authority in the interest of public administration and in the preservation of the forest wealth, no less than in the interest of the institution itself, Ex. P-u proceeds to state that the judgment in the said original petition, and the preliminary report of the X-Branch Police, have disclosed the following grave charges of serious irregularity and official misconduct on the part oi the accused officer :
1. 'Notwithstanding the provisions in the Madras Hindu Religious and Charitable Endowment Act and the Rule issued thereunder, the accused officer had in several cases initiated proposals for the disposal of valuable properties belonging to several Devaswoms and then sanctioned those proposals under Section 29 of the Act.
2. One of the persons to whom the accused officer had sanctioned the lease of 200 acres of land belonging to the Pulpally Devaswom, was his own direct nephew. The action of the officer was contrary to the provision in Rules 3 of the AH India Services (Conduct) Rules 1954 which enjoin every member to maintain absolute integrity in official matters.
3. The accused officer after obtaining applications from persons, in whose favour he had sanctioned the grant of leases made out applications in their name in forms cyclostyled in his office (even making corrections in the applications in his own handwriting) and forwarded them to the 'fit person' for signature and transmission to the Collector for sanction to fell the trees on the land. The accused officer also made his Personal Assistant to write a D. O. letter to the Personal Assistant to the Collector to see that applications were granted. The accused officer thereby interfered with the District Collector who was his subordinate Officer, in the discharge of his statutory responsibilities. The accused officer also permitted persons whose leases applications were pending sanction by him, to enter upon the lands, construct sheds and post watchmen. He had also interested himself in the actual allocation of the lands between the several nominees and demarcated on a sketch prepared for the purpose, the particular portions to be given to each'.
4. In connection with item No. 1, it may also be stated that the State Government again refer to an observation of the High Court in the said writ petition regarding the conduct of the Commissioner (the accused officer herein) in the matter of sanctioning leases and the further observation to the effect that it was quite improper for the Commissioner to have initiated the proposals for lease and then acted in judgment over his own proposals.
5. Ex. P-11 further proceeds to state that detailed enquiry into the charges by the X Branch is in progress and as 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 interests of proper conduct of the enquiry, it is necessary that the officer should not be allowed to continue in that post. Ex. P-11 further states :
'Having due 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., First Member, Board of Revenue, 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.'
There is, no doubt, a further consequential direction given to the 2nd Member, Board of Revenue, to assume charge from the accused officer and to attend to the duties of the First Member, Board of Revenue, until further orders.
6. The main attack that is made as against this order is that having due regard to the scheme of the All India Services (Discipline and Appeal) Rules, 1955, with particular reference to the provisions contained in Rule 7, no action by way of suspending an officer can be taken under that Rule, unless and until charges have been actually framed as against the officer, in question as contemplated under Rule 5. I will have to advert to the scheme of these Rules a little later.
7. In the affidavit filed in support of this application, no doubt, various matters are stated but it is not necessary to go into all those, aspects in view of the order passed by me on 20-3-1963 in C. M. P. No. 1685 of 1963. The learned counsel for the petitioner, Mr. V. K. K. Menon, had then stated that the arguments on the writ petition can be restricted to a consideration of the question of jurisdiction raised by his client as a purely legal one and that the writ petition can be disposed of on that basis. Recording this representation, I had also given directions that it has become unnecessary for the State to file any detailed counter-affidavit traversing the various allegations of fact contained in the petitioner's affidavit. But I had also indicated that it is open to the State to file a counter-affidavit restricted and limited only to the question of law relating to the jurisdiction of the State Government to place the officer under suspension as they have done under Ex. P-11.
8. The State Government have accordingly filed a counter-affidavit limited to the matter referred to above.
9. Therefore, I will only advert to the averments made in the affidavit in so far as they relate to this legal aspect.
10. According to the petitioner, he is a senior officer of the Indian Administrative Service having put in a total service of 25 years and' he has been a Member of the Board of Revenue from 1955 and functioning as the First Member of the Board of Revenue from December, 1961, till about October 1962.
11. Then he refers to the Pulpally Devas-wom situated in Wynad Taluk which was one of the Devaswoms or Hindu Religious Institutions under the Supervisory control of the Religious and Charitable Endowments (Administration) Department, during the petitioner's term of office as Commissioner. Then he refers to various matters in relation to the lease of the properties belonging to that institution and several other matters. The petitioner appears to have taken action as Commissioner against the Manager of the said institution and had placed him under suspension pending disciplinary proceedings. That action of the petitioner appears to have been challenged by the manager in O. P. No. 2306 of 1962. It is in the course of the judgment pronounced in the said writ petition, that certain observations appear to have been made which, according to the petitioner, are obiter dicta, in relation to the disposal of the forest land belonging to the institution.
12. Then the petitioner refers to the order of suspension passed as against him evidenced by Ex. P-11. According to the petitioner an order of suspension under Rule 7 can be passed only after the mandatory conditions provided therein are satisfied and one of the pre-requisites for exercising jurisdiction under Rule 7 is stated to be the framing of charges as against an officer. In this case as admittedly no charges have been framed or served upon the petitioner, it is urged that in consequence the order is one passed without jurisdiction. This aspect is elaborated in tho various grounds mentioned in the affidavit.
13. There are several additional affidavits filed by the petitioner which again more or less reiterate the legal aspect referred to above in different ways.
14. The Chief Secretary to the State Government has filed the counter-affidavit on behalf of the State. It is specifically stated that in view of the representation of the petitioner's counsel and recorded by this Court on 20th March, 1963, in C. M. P. No. 1885 of 1963, the various averments on facts made in the affidavit or additional affidavits filed by the petitioner have not been traversed and, therefore, those allegations cannot and should not be deemed to have been admitted.
15. According to the State, on a proper understanding of the rule and of the facts placed in the affidavit the action of 'he Government in passing the order, Ex. P-11, is perfectly valid and justified. The State Government takes up the stand that there is no violation of any of the petitioner's constitutional protection as a senior I. A. S. Officer nor has there been any violation of the All India Services Act or the Rules --framed thereunder. The State Government controvert the stand taken by the petitioner that suspension pending enquiry can be ordered only after charges against the officer have been actually framed. Such an interpretation is, according to the State Government, not warranted by the provisions of Rule 7; and the very object of Rule 7 itself would be defeated and frustrated, if the interpretation sought to be placed upon it by the petitioner is accepted. According to the State Government, the expression 'charges' in Rule 7 merely means accusation or a gist of allegations as against an officer, and in this case, the petitioner. The State Government also aver that the observations made by a learned Judge of this Court in O. P. No. 2306 of 1962 cannot be considered to be mere obiter and they are entitled to very great weight and consideration.
16. It is further stated that though at the time of the passing of the order, Ext. P-11, the petitioner had ceased to be the Commissioner for Hindu Religious and Charitable Endowments, nevertheless it was found that the petitioner's presence as 1st Member. Board of Revenue, considerably hindered the investigation, that has already been set up against him and it was rendered almost impossible for the investigating officer to get at records even after the petitioner ceased to be the Commissioner of Hindu Religious and Charitable Institutions. Therefore, the Government reasonably felt that this situation existed because the petitioner continued as the First Member of the Board of Revenue and the relevant records and files were with the Third Member of the Board of Revenue.
17. It is further stated that apart from the observations contained in the judgment of the High Court in O. P. No. 2306 of 1962 regarding the conduct of the petitioner as commissioner, long before those observations were made, enquiry was proceeding in regard to those very matters which had been alleged as against the petitioner.
18. The State Government further take up the position that it is not correct to say that no disciplinary proceedings have been actually initiated as against the petitioner. According to them, the initiation of investigation by the X-Branch Police is sufficient to constitute the initiation of disciplinary proceedings under Rule 7. In any event, according to the State Government, from the observations of the High Court in O. P. No. 2306 of 1962 and also from the preliminary report of the X-Branch dated 23-2-1963 received by the Government on 27-2-1963 the Government were satisfied that disciplinary proceedings had to be started against the petitioner and for that they directed further investigation and placed the petitioner under suspension.
19. The State Government further aver that several petitions alleging serious irregularity and misconduct as against the petitioner had been received by them. The files disclosed that such petitions were received even in 1960 and that as early as 1961 an enquiry by the X-Branch had been ordered into those allegations. The files, according to the State Government, will show that the petitioner was resisting the attempt made by the investigating officers to get at the records and pursue the investigation and, therefore, little progress could be made in regard to the investigation. Ultimately, investigations into some of, the allegations, disclosed in the petitions received by Government, were made and a preliminary report dated 23-2-1963 was submitted by the Inspector General of Police to the State Government with a forwarding letter dated 27-2-1963 and the said report was received by Government oft 27-2-1963.
20. It is further averred that the said preliminary report disclosed prima facie evidence of serious irregularities and misconduct as against the petitioner. It was at that stage the judgment in O. P. No. 2306 of 1962 had also been delivered by the High Court. On the basis of those materials. Government decided that it was necessary to pursue the disciplinary proceedings against the petitioner and for that purpose further investigations have been ordered and it was felt very necessary to keep the petitioner under suspension. According to the State, having due regard to the conduct of the petitioner at the earlier stage of the enquiry in preventing access to the records either directly or indirectly, and having regard also to the fact that at the enquiry to be pursued, evidence will have to be taken from very many of the subordinates of the petitioner, it was felt necessary in the interests of justice, that an order has to be made suspending the petitioner pending enquiry against him and it was under those circumstances that the order Ex. P-11 was passed.
21. In a reply affidavit that has been filed by the petitioner, the allegation of the Government that the petitioner adopted obstructive tactics at an earlier stage has been controverted. But it is not necessary for me to go into all those aspects in this writ petition, because the question that arises for consideration is one of law, namely, as to whether the contention of Mr. M. K. Nambiar, learned counsel for the petitioner that there is no jurisdiction in the Government to place the officer under suspension under Rule 7, before framing charges as against him, is to be accepted or not.
22. The All India Services (Discipline and Appeal) Rules, 1955, hereinafter to be called the Rules, have been framed by the Central Government, after consultation with the Governments of the States concerned in exercise of the powers conferred by Sub-section (1) of Section 3 of the All India Services Act, 1951, Central Act 61 of 1951.
23. The Act itself is a very short one containing only four sections. The All India Services Act, 1951, is an Act to regulate the recruitment and the conditions of service of persons appointed to the All-India Services common to the Union and the States. Section 2 defines the expression 'an All India Service' as a service known as the Indian Administrative Service or the service known as the Indian Police Service. Section 3 (1) provides for the Central Government, after consultation with the Governments of the States concerned, making rules for the regulation of recruitment and the conditions of service of persons appointed to the All India Services. Sub-section (2) of Section 3 and Section 4 are not material lor the present purpose.
24. The rules have been framed, as I have mentioned earlier, by virtue of powers conferred upon the Central Government under Sub-section (1) of Section 3 of Central Act 61 of 1951. Clause (b) of Rule 2 defines the expression 'Government'. At this stage I may mention that Mr. M. K. Nambiar, learned counsel for the petitioner, has not taken any contention before me that the State Government in this case, will have no jurisdiction to place the officer under suspension under Rule 7, provided the conditions mentioned therein are satisfied. Therefore, it is clear, that if action has been taken in accordance with Rule 7, the competency of the State Government to take such an action is beyond controversy. Therefore, it is not necessary for me to consider in detail the definition of the expression 'Government' in Rule 2 (B). Clause (c) of Rule 2 again defines the expression 'Member of the Service' as a member of the Indian Administrative Service or a Member of the Indian Police Service as the case may be. Rule 3 provides the various penalties that may be imposed on a member of the service for good and sufficient reasons 'as hereinafter provided'. There are six Explanations in this rule which are not also necessary to be noted.
25. Rule 4 (1) provides that the penalty of dismissal, removal or compulsory retirement shall not be imposed on a member of the service except by an order of the Central Government. Sub-rule (2) of Rule 4 refers to the Government which is competent to institute disciplinary proceedings against an officer and to impose penalty in the circumstances mentioned therein. Rule 5 on which considerable reliance has been placed by Mr. M. K. Nambiar, learned counsel for the petitioner, together with the various sub-rules, is as follows :
5. 'Procedure for imposing penalties :
(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 ie 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 writ Vest statement of his defence and to state whether he desires to be heard in person.
(4) The member of the Service concerned may request for an access to official records for the purpose of preparing his written statement provided that the Government may, for reasons to be recorded in writing refuse him such access if in its opinion such records are not strictly relevant to the case or it is not desirable in the public interest to allow such access.
(5) After the written statement is received from the member of the Service in accordance with Sub-rule (3) or if no such written statement is received within the time allowed Government may, if it considers it necessary, appoint a Board of Inquiry or an Inquiry Officer to inquire into the charges framed against the member of the Service and shall have the charges inquired into as provided in Sub-rule (6). If the Government does not consider it necessary to appoint a Board of Inquiry or an Inquiry Officer, the Government shall inquire into the charges in such manner as it deems fit.
(6) If the member of the Service desires to be heard in person, he shall be so heard. If he desires that an oral inquiry be held or if the Government so directs, an oral inquiry shall beheld by the Board of Inquiry or the Inquiry Officer, as the case may be. At such inquiry evidence shall be heard as to such of the allegations as are not admitted and the member of the Service shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish.
Provided that the Board of Inquiry or the Inquiry Officer, as the case may be, may for reasons to be recorded in writing, refuse to call a witness.
(7) Where a Board of Inquiry is appointed, it shall consist of not less than two senior officers, provided that at least one member of such Board shall be an officer of the Service to which the member of the Service belongs.
(8) The proceedings conducted against a member of the Service under the provisions of this rule shall contain a sufficient record of the evidence and a report setting out the findings and the grounds on which they are based, but shall not contain any recommendation relating to the penalty to be imposed unless the Government has specifically called for such recommendation.
(9) After the inquiry against a member of the Service has been completed and after the punishing authority has arrived at any provisional conclusion in regard to the penalty to be imposed, if the penalty proposed is dismissal, removal, compulsory retirement or reduction in rank, the member of the Service charged shall be supplied with a copy of the report of inquiry and be given a further opportunity to show cause why the proposed penalty should not be imposed on him:
Provided that if the punishing authority disagrees with any part or whole of the findings of the Board of Inquiry or the Inquiry Officer, the point or points of such disagreement together with a brief statement of the grounds thereof, shall also be communicated to the member of the Service. (10) Notwithstanding anything contained in this rule, --
(a) it shall not be necessary to follow the procedure laid down in Sub-rules (2) to (9) in cases where it appears to the authority competent to impose the penalty at the initial stage of the proceedings that the penalty of censure would be adequate, but if at any later stage it is proposed to impose any other penalty specified in Rule 3, the procedure laid down in the said Sub-rules (2) to (9) shall be followed;
(b) it shall be lawful for the authority competent to impose the penalty to waive, for good and sufficient reasons to be recorded in writing, any of the provisions of this rule in any exceptional case where such authority is satisfied that there is difficulty in strictly complying with such provisions and that compliance with such provisions can be waived without any injustice to the member of the Service concerned;
(c) the provisions of this rule shall not apply in relation to the imposition on any member of the service of any of the penalties specified in Rule 3 -
(i) where the penalty is imposed on the ground of conduct which has led to his conviction on a criminal charge; (ii) where the authority empowered to impose a penalty is satisfied that, for some reason to be recorded in writing, it is not reasonably practicable to follow the provisions of this rule; and
(iii) where the authority empowered to impose a penalty is satisfied that in the interest of the security of the State, it is not expedient to follow the provisions of this rule'.
26. It will be seen that Rule 5 specifically refers to the procedure for imposing penalties. Sub-rule (1) provides that no order imposing any of the penalties specified in Rule 3 shall be passed 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. Sub-rule (2) provides for the grounds on which it is proposed to take action being reduced to the form of a definite charge or charges and to their communication to the member of the Service charged along with a statement of the allegations on which each charge is based and any other circumstances which it ia proposed to take into consideration in passing orders on the accused. Sub-rule (3) gives a right to the member of the Service concerned to put in a statement of his defence and also to state whether he desires to be heard in person. Sub-rule (4) relates to the giving of access to official records subject to the limitations mentioned therein. Sub-rule (5) provides for the appointment of a Board of Inquiry or an Inquiry Officer to 'inquire into the charges framed' against a member of the Service and the charges being inquired into as provided in Sub-rule (6). If no Board of Inquiry or Inquiry officer is appointed the Government are to inquire into the charges in such manner as they deem fit.
Sub-rule (6) provides for the hearing of the member of the Service if he so desires and for the conduct of an oral inquiry again if he so desires or if the Government directs and that inquiry is to be held by the Board of Inquiry or the Inquiry Officer as the case may. It also provides for adducing of evidence in respect of the allegations that are not admitted and the member of the Service being entitled to cross-examine witnesses, give evidence in person and also adduce evidence on his behalf, subject again to a limitation indicated in the proviso. Sub-rule (7) relates to the manner in which a Board of Inquiry is to be constituted. Sub-rule (8) again relates to the proceedings containing a sufficient record of the evidence and a report setting out the findings and the grounds on which they are based. There is to be no recommendation relating to the penalty to be imposed unless Government has specifically desired such a recommendation to be made. Sub-rule (9) again deals with the further action to be taken by the punishing authority after the inquiry has been completed and after a provisional conclusion in regard to the penalty has been arrived at. Sub-rule (10) provides for the various contingencies under which the procedure indicated in Sub-rules (2) to (9) need not be necessarily followed.
27. Rule 6 makes provision to the effect that no order imposing on a member of the Service any penalty specified in Rule 3 shall be passed by the Government except after consultation with the Commission. There is also a proviso to Rule 6 dealing with cases where there is a difference of opinion between the State Government and the Commission,
Rule 7 again, on the basis of which, the State Government in this case have passed the order under attack, is as follows:
'1. Suspension during disciplinary proceedings :
(i) If having regard to the nature of the charges and circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started, the 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 :
Provided that in cases where there is difference of opinion between two State Governments, the matter 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 against whom 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 the proceedings 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'.
ft is not really necessary to consider the various' other rules.
28. According to Mr. M. K. Nambiar, learned counsel for the petitioner, a perusal of Rule 7, under which action has been taken, clearly shows that it is mandatory that the State Government must have (a) regard to the nature of the charges and (b) the circumstances in any case, before it is satisfied that it is necessary or desirable to place a member of the Service under suspension. In this connection, the learned counsel placed considerable reliance upon the use of the expression 'charge' occurring in Rule 7 (1) and urged that the said expression must bear the same meaning that it must have, when it is used in Rule 5 referred to above. The learned counsel urged that Rule 5, and in particular Sub-rule (2) therein, has clearly laid down that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges and they are to be communicated to the member of the Service; and it is the existence of such a definite charge or charges referred to in Sub-rule (2) of Rule 5 that is again indicated in the expression 'charge' occurring in Rule 7 (1). That is, in short, according to the learned counsel, unless a definite charge or charges have been framed, as is pontemplated under Sub-rule (2) of Rule 5, for the purpose of imposing penalty against an officer, no action can be taken by way of suspending an officer under Sub-rule (1) of Rule 7. The learned Counsel, no doubt, urged that the heading of Rule 7 itself is 'suspension during disciplinary proceedings'. According to the learned counsel, disciplinary proceedings cannot be considered to be initiated as against a Government servant unless the charge or charges referred to in Sub-rule (2) of Rule 5 have been framed.
29. The learned counsel also urged that unless the charge or charges have been framed as against a Government servant, it is idle to expect a compliance with Sub-rule (1) of Rule 7 wherein one of the essential requisites is that the State Government must have 'regard to the nature of the charges'. In this case, according to the learned counsel, even on the averments made in the order under attack and also in the stand taken by the State Government in its counter-affidavit, it is clear that the proceedings as against the petitioner are only in the stage of allegations which are under investigation by the X-Branch. After such an investigation, the State Government may or may not think it necessary to ask the petitioner to face an enquiry by framing definite charge or charges. Therefore, till the stage of framing of a charge has been reached, the learned counsel urged, that no action cart be taken under Sub-rule (1) of Rule 7.
30. In this connection, the learned counsel referred me to the different phraseology used in the matter of suspension, pending an enquiry in certain other rules. The learned counsel referred me to Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules 1957, framed by the President in exercise of the powers conferred by the proviso to Article 309 and Clause 5 of Article 148 of the Constitution. The material part of this rule is Rule 13 (1) (a) wherein it is provided that the authorities mentioned therein may place a Government Servant under suspension 'where a disciplinary proceeding against him is contemplated or is pending'. The learned counsel also referred me to Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, regarding the suspension of a Government servant where a disciplinary proceeding against him is contemplated or is pending. That Rule is more or less identical with the Central Civil Services Rules referred to above. That is, according to the learned counsel, under the Central Service Rules and the Kerala Service. Rules power has been given to suspend a Government servant even when a disciplinary proceeding is contemplated. According to the learned counsel evidently in view of the high position occupied by officers in the Indian Administrative Service, it was thought that action by way of suspension, under Rule 7, can be taken only after the particular stage of framing charges has been arrived at. It is intended as a safeguard or protection to such officers, according to the learned counsel.
31. The learned counsel also referred me to certain decisions to the effect that the same word occurring in the same section of the same set of rules must be given the same meaning unless there is anything to indicate the contrary. That is, according to the learned counsel, the same meaning that is to be given to the expression 'charge'' or 'charges' occurring in Sub-rule (2) of Rule 5 must be given to the expression 'charge' occurring in Sub-rule (1) of Rule 7. The proposition enunciated by the learned counsel admits of no controversy because that is well laid down. I am not referring to the decisions of certain High Courts relied on by the learned counsel. It is enough if reference is made to the decision of the Supreme Court in Guruswamy v. State of Mysore, AIR 1954 SC 592 and in particular to the observation at page 595 wherein the proposition referred to above is laid down by their Lordships. But as I am indicating later this principle will not assist the petitioner.
(32) The learned counsel also referred me to the decision of the Calcutta High Court in Amnlya Ratan Mukherjee v. Deputy Chief Mechanical Engineer, Eastern Rly., AIR 1961 Cal 40 where the learned Judge had to consider the distinction between a fact-finding enquiry and departmental enquiry. In that connection, the learned Judge has observed that the Departmental enquiry starts from the charge-sheet and the charge-sheet must be specific and must set out all necessary particulars. The learned counsel relied upon this decision in support of his contention that unless a charge-sheet has been framed, it cannot be stated that an enquiry has commenced in this case. I do not think that this decision of the Calcutta High Court will assist the learned counsel in this matter. There can be no controversy, that if this Court is concerned to find out whether an enquiry has commenced as against an officer having due regard to the provisions contained in Rule 5, certainly the proposition laid down, by the learned Judge can very well be applied and it can be held that enquiry proceedings for purposes of imposing a penalty, can be considered to commence only from the framing of a definite charge or charges. But that certainly is not the position in the case before me,
(33) Mr. M. K. Nambiar, learned counsel for the petitioner, referred me to the decision of the Allahabad High Court in Mehar Chand v. City Board, Shahjahanpur, AIR 1959 All 230 wherein the learned Judge has held that the framing of charge must precede or at any rate synchronise with the suspension. The reliance placed upon this decision, again, by the learned counsel, is for the purpose of establishing that unless charges have been framed, no suspension pending enquiry can be ordered.
(34) As rightly pointed out by the learned Advocate General, this decision cannot and will not assist the learned counsel for the petitioner. No doubt, the order placing an officer, in the employ of the Municipal Council under suspension, was challenged and that challenge, was on the basis of Section 69-A (1) of the U. P. Municipalities Act, Act 2 of 1916, which is as follows:
'69-A(1). If the President has reasons, to believe that the Executive Officer or the Secretary or any of the other officers of the Board appointed under Section 68, is corrupt or has persistently failed in the discharge of his duties or is otherwise guilty of misconduct, he may frame charges against him and where he is satisfied that it is so necessary, he may, for reasons to be recorded, suspend him pending the completion of the enquiry.
(2) Whenever the President takes action under Sub-section (1) he shall inform the State Government and also forward to it a copy of the charges framed.
(3) The enquiry under Sub-section (1) shall be carried on in such manner as may be prescribed by rules,
(4) After the inquiry is completed, the President shall submit the record with his own recommendation to the State Government or to the Board as he may consider fit. The State Government, or the Board, as the case may be, shall thereupon, notwithstanding anything contained in Sub-section (1) of Section 58, or 67 or 69, proceed to consider the report and may, after such further inquiry as it may deem necessary, punish, dismiss, remove or exonerate the Executive Officer or the Secretary or such other officer to whom Section 69 applies, as the case may be.
(5) Whenever the Board acts under Sub-section (4), the condition prescribed in Section 58 shall apply and an appeal shall lie to the State Government in the manner and to the extent provided in the said section'.
It will be seen that Section 69-A (1) specifically provides that under the circumstances mentioned therein, the President has to frame charges against the officer and where he is satisfied that it is necessary he can place the officer under suspension pending the completion of the enquiry. Therefore, the placing of an officer under suspension pending inquiry is closely linked up, by the sub-section with the framing of charges as against the officer. It is in considering that section the learned Judge, if I may say so with respect. Quite rightly, came to the conclusion that in view of the grammatical construction to be placed on Section 69-A, the inquiry contemplated by that section can be considered to be initiated only by the framing of the charges and that only then can suspension be ordered. This decision again, in my view, does not assist Mr. M. K. Nambiar, learned counsel for the petitioner.
35. According to the learned Advocate General, the scheme of Section 5, which deals with the procedure to be adopted for imposing penalties, is entirely different from the scheme of Rule 7 which gives jurisdiction to the State Government to place an officer under suspension. The learned Advocate General also urged that 'disciplinary proceedings', cannot certainly be' restricted only to the actual framing of the charge and an inquiry being conducted as against the officer. Even prior to that stage, the learned Advocate General urged there may be instances where very grave and serious allegations of misconduct are made as against an officer, which if proved, will entail any of the penalties referred in Rule 3. The Government will have to necessarily investigate and collect the necessary materials before an actual enquiry is commenced as against the officer. When once the allegations of such a character have been received, and the Government have initiated an enquiry into those allegations, the learned Advocate General urged that the disciplinary proceedings must be considered to have been initiated as against the officer. That is exactly what has happened in this case. Apart from the observations contained in the judgment of the High Court in O. P. No. 2306 of 1962 regarding the conduct of the petitioner as Commissioner, there is the other circumstance, namely that even as early as 1960, the Government have been receiving various allegations of misconduct as against the petitioner, and those allegations were being inquired into by the X-Branch. A preliminary report has been submitted by the Inspector General of Police which was received by the Government on 27-2-5063. Those materials available before the Government clearly show that there are very serious charges of misconduct as against the petitioner, which, if established, will result in imposing any one of the penalties referred to in Rule 3.
36. The learned Advocate General has also urged that the expression 'charges' in Rule 7 has been used in the general sense of an imputation or accusation or allegation as against an officer; whereas Rule 5 has specifically laid down the procedure for imposing the penalties. Before imposing those penalties, the Rule has laid down very clearly the procedure to be adopted and in that connection it is stated that the grounds on which it is proposed to take action are to be reduced to the form of definite charge or charges and have to be communicated to the member of the Service charged. The charges, in Rule 5 (2) has relation, to what an officer has to meet in an inquiry.
37. The fact that in the Central Civil Services Rules or in the Kerala Rules, power has been given specifically to place an officer under suspension even when disciplinary proceedings are contemplated has no relevancy at all in the matter of construction of Rule 7.
38. In this case, according to the learned Advocate General, Rule, 7 has been properly complied with, namely, that the Government had regard to the nature of the grave allegations or serious allegations received as against the petitioner and having due regard to the circumstances of this case they thought it fit to place the petitioner under suspension.
39. In this connection, the learned Advocate General has also referred me to the observations of the Supreme Court regarding the object of placing an officer under suspension pending enquiry. In Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Ram Sarup. AIR 1957 SC 82 the Supreme Court has laid down that suspension pending enquiry is not a punishment at all and orders of suspension are meant only as security measures or precautionary ones taken in the interest of the service. No doubt, these observations were made in connection with an industrial dispute. But in a more recent judgment, their Lordships again in Khem Chand v. Union of India, (1963) 1 SC WR 127 : (AIR 1963 SC 687) observe at page 135 (of SCWR) : (at p. 691 of AIR) :
'Nobody can seriously doubt the importance and necessity of proper disciplinary action being taken against Government Servants for inefficiency, dishonesty or other suitable reasons. Such action is certainly against the immediate interests of the Government servant concerned; but is absolutely necessary in the interests of the general public, for serving whose interests, the Government machinery exists and functions. Suspension of a Government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him, a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the procedure.'
These observations, if I may say so with great respect, emphasise that suspension of a Government servant pending an inquiry is really a necessary part of the procedure for taking disciplinary action as against him.
40. Having due regard to the various aspects that have been presented before me by Mr. M. K. Nambiar, learned counsel for the petitioner, and the learned Advocate General appearing for the State, in my view, it cannot be stated that the order Ext, P-11, which is under attack in this writ petition is one passed by the State Government, without jurisdiction,
41. I have already referred to the scheme of the Rules by referring to the various matters mentioned therein. Rule 5 lays down the specific procedure for imposing penalties and it is in connection with that that Sub-rule (2) clearly says that the grounds on which it is proposed to take action should be reduced to the form of a definite charge or charges. In this connection it is also seen that Sub-rule (2) also uses the expression that the definite charge or charges have to be communicated 'to the member of the service charged'. It is also obligatory under Sub-rule (2) of Rule 3 that along with the charge or charges the statement of the allegations on which the charge is based and any other circumstances have also to be communicated to the member of the Service charged. The various other provisions in Rule 5 clearly show how exactly the further proceedings, for the purpose of imposing penalty, as against a member of the service are to be continued.
42. In my view, the matters provided for in Rule 5 have to be strictly limited only for the purposes for which they are intended, namely, the procedure for imposing penalties. It is really in that connection that the expression 'charge' taken along with the expression 'member of the service charged' assumes importance that there must be a framing of a charge as against the officer. But in my view, these circumstances have no bearing in considering Rule, 7. In my opinion, the expression 'charges' no doubt, occurring in Rule 7 cannot certainly be considered to have the same connotation as the expression 'definite charge or charges' as against 'a member of the service charged' occurring in Sub-rule (2) of Rule 5 or 'charges framed' occurring in Sub-rule (5) of Rule 5. In my view, the very restricted meaning sought to be given to the expression 'disciplinary proceedings' by Mr. M. K. Nambiar, learned counsel for the petitioner, namely, that it takes in only the stage when a charge is framed and an inquiry is held, cannot certainly be accepted. In fact, it will be seen that Rule 7 deals with a wider sphere, namely, during the entire course of disciplinary proceedings. It is in that context that the expression 'charges' occurring in Rule 7 (1) is to be understood. If so understood, in my 'view, that expression has no reference to the actual charges that are framed as against a public servant and in respect of which he is asked to face an inquiry before a penalty is imposed under Rule 5, but really takes in serious allegations of misconduct that may have been made as against an officer. If the State Government, having due regard to the nature of such serious allegations of misconduct and other circumstances, are satisfied that an officer is to be placed under suspension under Rule 7 (1), in my view, such an action cannot be characterised as one taken without jurisdiction. If the intention was that an I. A. S. Officer can be placed under suspension under Rule 7, only after charges for an inquiry have been actually framed, and if those are the charges that are referred to as 'charges' in Rule 7, in my view, the Rule would have been framed by adding the word 'framed' immediately after the words 'the charges' in Rule 7 (1). The rule making authority has used such an expression as 'inquire into the charges framed' in Sub-rule (5) of Rule 5. The absence of such an expression 'framed' after the word 'charges' in Rule 7 (1) in my view is a clear indication that 'charges' referred to in Rule 7 (1) are not identical with charges framed as against an officer for purposes of an inquiry under Rule 5 (1).
43. I am in agreement with the contention of the learned Advocate General that in this case the disciplinary proceedings must be considered to have commenced, even when very serious allegations of misconduct as against the petitioner are stated to have been received by the Government and these allegations of misconduct are pending investigation, by order of Government, at the hands of the Police. 'The learned counsel Mr. M. K. Nambiar, has stated that the observations made in the judgment of the High Court in O. P. No. 2306 of 1962 cannot be taken into account at the present stage because that judgment will be the subject of an appeal. I will proceed on that basis for the present. But even then, the State Government have categorically stated that even from 1960 onwards, there have been several allegations of misconduct as against the petitioner and after an investigation into those matters, a preliminary report has been received from, the Inspector General of Police by the State Government on 27-2-1963. In the order Ext. P-11, the State Government have also stated that the said preliminary report has disclosed three grave charges of serious irregularity and official misconduct referred to therein. No doubt, the proposition is well-settled that where an authority takes action under an Act or the Rules framed thereunder, it must conform to the provisions of the statute or the rules, which have conferred upon it the power to take such action, and if there is any violation of the said provisions, the public servant will have a right to challenge the decision of that authority. Having due regard to that principle, it must be stated, in the circumstances of this case, that the action taken by the State Government, in passing Ext. P-11, is clearly in accordance with the provisions of Rule 7.
44. Acceptance of the contentions of Mr. M. K. Nambiar, learned counsel for the petitioner, that under Rule 7, suspension can be effected only after charges have been framed will, in my opinion, lead to very anomalous results. For instance, there may be very serious allegations of misconduct against an officer, though he may belong to the Indian Administrative Service; and the Government may be investigating into that matter by way of collecting materials for ultimately conducting an enquiry against the officer. If no action can be taken as against the officer under these circumstances by way of suspension at that stage, the position would be that the Government servant concerned will be continuing to hold office, notwithstanding such serious allegations of misconduct levelled as against him. It is to avoid such contingencies, that provision has been made to enable the Government to place officers under suspension, when the nature of the allegations is fairly serious enough to warrant the taking of such an action.
45. There are two minor contentions raised on behalf of the State, namely, that the order plating the petitioner under suspension is a purely administrative act and, therefore, no interference should be made under Article 226 of the Constitution. The further contention is that under Rule 22 of the Rules, it is provided that if any question arises relating to the interpretation of the Rules, it shall be referred to the Central Government whose decision thereon shall be final. It is mentioned that inasmuch as the petitioner has raised a dispute regarding the construction of Rule 7, the Government have, after the filing of this original petition, addressed the Central Government to confirm that the understanding of the Rule, by the State Government is correct.
46. But inasmuch as 'both these aspects have not been pursued during the course of the arguments by the learned Advocate General, I do not think it necessary to express any opinion on those matters.
47. In the result, the writ petition fails and is dismissed. Parties will bear their own costs.