P. Subramanian Poti, J.
1. The petitioner is the II Member of the Board of Revenue of the Kerala State, now under suspension. Justice M. U, Isaac of This Court had been appointed as Commissioner under the Commissions of Inquiry Act, 1952, to enquire into certain matters relating to the acquisition of land for the Kerala Agricultural University. In the light of the facts that came out in the enquiry conducted by Issac, J., Government contemplated disciplinary proceedings against the petitioner Sri K.K. Ramankutty and this was communicated to him by a memo, dated 12-11-1971, the copy of which is Ext. P-2. Six charges were framed against the petitioner and his statement of defence was called for. At that stage the petitioner came to This Court seeking to quash Ext. P-2 memo of charges on the ground that the charges were, on the face of them, unsustainable. This Court felt that it was too premature to say that the charges were unsustainable and, therefore, the petition O.P. No. 5454 of 1971 was dismissed. The judgment indicated that the merits of the charges had not been considered by This Court. The State was asked to consider the explanation of the petitioner which had been in the meanwhile submitted by him when the Original Petition No. 5454 of 1971 was pending. Therefore, as it is, the disposal of that original petition is no bar to the contentions in this petition.
2. After receipt of the written statement of defence the matter was considered by the Government. With reference to the file available with counsel Sri T.C.N. Menon, appearing for the respondents, it was pointed out at the hearing before me that on 16-10-1971 the Council of Ministers met and considered the report of the Isaac Commission, but that, at that time, no decision was taken in regard to the action to be taken against any officer on the basis of that report. At a subsequent meeting of the Council of Ministers held on 5-11-1971 the decision to take action against the petitioner was taken and that resulted in the issue of Ext. P-2 dated 12-11-1971. There was an interpellation on the floor of the Legislative Assembly by some of the members on the question of the action to be taken against the petitioner on the report of the Isaac Commission. The written statement in defence was filed by the petitioner on 7-12-1971 and this is seen to have been examined by the Law Department of the Government. Later the Council of Ministers is said to have considered the explanation at their meeting on 8-1-1972 and it is said that an informal decision was taken leaving it to the Chief Minister to take such action against the petitioner as he deemed fit. On the same day the Chief Minister who proceeded to decide the matter found, on a consideration of the defence, that the charges had to be proceeded with and further that it was necessary to keep the petitioner under suspension pending enquiry into the charges. It was also decided that Sri P. Govinda Menon, retired Judge of This Court should be appointed as Commissioner to hold the enquiry. All these decisions were embodied in Ext. P-1 order passed on 8-1-1972. Counsel for the State submits that this action of the Chief Minister was ratified on 13-1-1972 by the Council of Ministers at their meeting. The petitioner came to This Court on 14-1-1972 impleading the State as well as the Chief Minister of the State as respondents. Though the petitioner prayed for the stay of operation of Ext. P-1 order of suspension pending disposal of the original petition, no interim order of stay of such operation was granted by This Court. But with regard to the enquiry pursuant to Ext. P-1, Sri T.C.N. Menon who took notice on behalf of the respondents undertook that no further proceedings will be taken against the petitioner. Therefore, as it is, the petitioner remains under suspension and the enquiry against him has not been commenced.
3. Charges which have been framed against him and which are contained in Ext. P-1 order are six in number and are the following:
1. That you, Sri K.K. Ramankutty, being entrusted by the Government as per G. 0. Rt. No. 3276/70/AD dated 28-12-1970 with the responsible duty of inquiring into and submitting a report on the facts mentioned therein, instead of going into the questions with an open mind, approached the same with your own pre-conceived notions and deliberately persuaded yourself to be biased by your predilection as against the need of an Agricultural University in this State and thus failed to maintain in the conduct of the enquiry and the making of the report the absolute integrity and the devotion of duty enjoined on you by Rule 3(1) of the All India Services (Conduct) Rules, 1968.
2. That you, Sri K.K. Ramankutty, in the discharge of the specific duty entrusted to you by the Government as per the aforesaid G.O. dated 28-12-1970 was grossly rash, negligent and irresponsible in that without caring to properly ascertain the market value of the Vellanikkara Estate and without taking into account the other relevant particulars you assessed without any basis the cost of its acquisition at the fabulous figure of Rs. 2 crores, and without taking into account the nature of the land and the numerous improvements thereon and the cost for acquiring them you suggested some other unsuitable land as more suitable for the purpose of the Agricultural University and made deliberate use of the irrational conclusions so worked out by you without any basis to recklessly condemn the Government's decision for acquisition of the estate as 'mid-summer madness' and thus wantonly maligned the Government you are serving and brought it under disrepute in a manner unbecoming of a member of the service to which you belong and displayed lack of the absolute integrity and devotion to duty enjoined on you by Rule 3(1) of the All India Services (Conduct) Rules, 1968.
3. That you, Sri K.K. Ramankutty, in conducting the aforesaid enquiry and making your report, rashly, and in an irresponsible manner and without any basis made the wanton assertion that it was under heavy pressure from some powerful quarter that Dr. Money recommended the acquisition of the Vellanikkara Estate and also that in fact the decision to acquire the Estate had been taken at the highest level, by which you meant the Ministry as a whole, even before Dr. Money's mission to Trichur and thereby without any justification attempted to malign and bring into disrepute Dr. Money and the Government you are serving and thus misconducted yourself in a manner unbecoming of a member of the service to which you belong, thus violating Rule 3(1) of the All India Services (Conduct) Rules, 1968.
4. That you, Sri K.K. Ramankutty, in the report submitted by you made without any basis and for no justifiable reason, disparaging remarks against Dr. Money that he is a timid person and ridiculed his appointment as special officer as presumably on that qualification of timidity and further recklessly and without any basis found fault with Dr. Money in not having consulted the Revenue Officers of the district before making his recommendation for the acquisition of the estate and thus misconducted yourself in a manner unbecoming of a member of the service to which you belong and also failed to show the absolute integrity which as an officer of the service you were bound to do under Rule 3 of the All India Services (Conduct) Rules, 1968.
5. That you, Sri K.K. Ramankutty, improperly misused the assignment entrusted to you as per the aforesaid G.O. dated 28-12-1970 to make most uncharitable and totally baseless, fantastic, wanton, callous and irresponsible allegations against Sri K. P. K. Menon, the Chief Secretary of the State and thus attempted to malign and bring into disrepute the State and its Chief Executive Officer and thereby misbehaved and misconducted yourself in a manner totally unbecoming of a member of the service to which you belong and also acted with a deplorable lack of integrity and devotion to duty in violation of Rule 3 of the All India Services (Conduct) Rules, 1968 ; and
6. That you, Sri K.K. Ramankutty, having been entrusted by the Government with the responsible duty of conducting an enquiry and making a report as per the aforementioned G.O. dated 28-12-1970, after conducting the inquiry therein, gave out to press representatives even before submitting your report to the Government that entrusted you with the enquiry the findings and conclusions in your report and thus acted in violation of Rules 7 and 8 of the All India Services (Conduct) Rules, 1968.
4. It is necessary to refer, in brief, to the history of the case to understand the background of the circumstances that resulted in Ext. P-1 order of suspension. This is necessary since the main plea of the petitioner is that in suspending him and in deciding to take disciplinary action against him the Chief Minister of the State was actuated by mala fides, that it was a sequel to extraneous influence brought to bear on the Government and that in passing the order of suspension the Chief Minister was acting under the dictates of his party, namely, the Communist Party of India.
5. It was by order of Government dated 16-2 1970 that the State decided to establish an Agricultural University at Mannuthy, Trichur District and directed the appointment of a special officer to attend to the work relating to the establishment of the university. One Dr. Money who was then holding the charge of Vice-Principal, Agricultural College, Vellayani, was appointed as special officer. He is seen to have submitted reports to the first respondent on 6-5-1970 and 7-5-1970 based on his inspection of the Mannuthy area on 3-5-1970 and 4-5-1970, the reports being that concerning the extent, value, location and nature of the lands required for the Agricultural University. He recommended that the Agricultural University may have to start with a campus area of 1750 acres which, according to him, could consist of 450 acres from the Central Farm, Mannuthy, 300 acres from the reserve forest nearby and 1000 acres of rubber estate known as the Vellanikkara Estate belonging to one Mrs. LucyKochuvareed. It is this proposal to acquire the Vellanikkara Estate that has led to the subsequent controversy and that arose because of a news item in one of the dailies in the State that the proposal to acquire Vellanikkara Estate was at the instance of the Communist Party of India which stood to gain substantially by such acquisition. Dr. N. S. Money re-commanded that steps may be taken to acquire Vellanikkara Estate and also to declare the adjoining lands in five villages as project area under Section 47A of the Kerala Land Acquisition Act. According to Dr. Money the land in and around the area of the Vellanikkara Estate would cost about Rs. 10,000 to Rs. 15,000 per acre. These reports of Dr. Money dated 6-5-1970 and 7-5-1970 were considered by the Additional Secretary for Agriculture one Sri K.V. Ramakrishnan and the Agricultural Production Commissioner Sri Chandrabhanu on 7-5-1970 itself and approved by them on the same date. The matter was also placed before the Minister for Agriculture, Sri Koran, on the same day and he also approved the proposal on the same day. There is a comment by the petitioner on this conduct of the officers concerned and also the Minister, in evidencing such undue haste in the matter of an acquisition which would result in a heavy commitment to the State. That I will come to in due course.
6. It is also seen from the records that the matter came to the notice of the Chief Minister and he also approved this on 12-5-1970. Consequent upon this, a notification was issued by the State sanctioning the acquisition of Vellanikkara Estate and directing the District Collector, Trichur to take immediate steps. Accordingly the District Collector issued orders under Section 19(4) of the Kerala Land Acquisition Act, 1962 on 23-6-1970 directing that, in view of the urgency of the case, the provisions of Section 5 of the Act shall not apply to the acquisition of the property. Declaration under Section 6 of the Act was also issued by the Board of Revenue and the first respondent subsequently. While so Dr. Money, the Special Officer, again submitted a note to the Government on 6-7-1970 pointing out that it was necessary to take possession of the Vellanikkara Estate as quickly as possible for starting the construction of the buildings and for completing the general lay-out for the university. In his note dated 6-7-1970 he also pointed out that it was necessary to pay an advance compensation for the land for the said purpose and, therefore, an amount of Rs. 50 lakhs had to be made available for the acquisition of land in the first stage. He requested the State for approval of transfer from the Contingency Fund of Rs. 50 lakhs for such advance payment. According to the petitioner there was no protest against this proposal but only a discussion of the Head of Account under which the advance compensation had to be made available and this was the only question which was considered at the meeting of the Council of Ministers held on 23-7-1970. It is said that it was decided that there was no need to make such transfer since there was already a token provision in the budget for the establishment of the Agricultural University and as such necessary expenditure could be incurred for the acquisition of the land by resorting to paragraph 81(f) of the Budget Manual. These facts are referred to to show that at that stage the question of acquisition of Vellanikkara Estate was a settled proposition and if nothing else had intervened the payment of Rs. 50 lakhs as advance compensation would have been made on the basis of the recommendation of Dr. Money as a matter of course. It is the fact that subsequent events aroused public interest that stemmed the course of events that would have otherwise normally followed and that was initiated by a news item in the 'Thaniniram' on 1-9-1970. That news item imputed irregularity and corruption in the matter of acquisition of Vellanikkara Estate and further alleged that some political leaders were interested in the matter and they exerted influence for the acquisition of the said estate. In the meanwhile the Legislative Assembly had been dissolved on 26-6-1970 and the then Ministry headed by the 2nd respondent as the Chief Minister resigned on 1-8-1970. On 24-9-1970 it was ordered by the Government that the allegations contained in the news item in 'Thaniniram' may be enquired into by the Vigilance Department. The files were forwarded to the Vigilance Secretary and it is said that the Secretary was of the view that a re-consideration of the matter was necessary since the sanction for acquisition of the estate was made without consultation with the Finance Department and without conforming to the procedure prescribed for acquisition of land by Government. It would also appear that the District Collector, Trichur wrote to the Government that the Vellanikkara Estate would cost about Rs. 70 lakhs on a rough valuation out of which Rs. 29 lakhs would be the cost of the improvements and that a large part of the tree growth would have to be cleared. This letter apparently was intended to make the first respondent to reconsider whether such a huge amount had to be spent on the above matter. It would appear that the District Collector had also proposed an alternative site including a portion of the Vellanikkara Estate for acquisition for the Agricultural University. Naturally the matter was raised on the floor of the Legislative Assembly. This was in November, 1970. The petitioner avers in his petition that the Vigilance Secretary in his note dated 24-9-1970, after examining the relevant facts, took the view that the first respondent acted hastily and without considering relevant matters in ordering the acquisition of the Vellanikkara Estate and that the conduct of Dr. Money, the Special Officer, on whose report the Government acted, called for an enquiry by the Vigilance Director. This was concurred in also by the Finance Secretary. The Additional Secretary, Agriculture and the Agricultural Production Commissioner who had agreed to accept the report of Dr. N. S. Money earlier had, according to the petitioner, necessarily to differ from the views of the Vigilance and Finance Secretaries to justify their earlier stand. But notwithstanding this fact when the matter went back to the Vigilance Secretary he reiterated the view expressed by him earlier and insisted that the whole matter should be re-examined by the Government in the light of the several factors detailed in his report. According to the petitioner these are the circumstances which compelled the State Government to take a decision to have an enquiry conducted in the matter and, therefore, an order was passed on 28-12-1970 appointing the petitioner, who was at that time III Member of the Board of Revenue, to enquire into the question of selection of land for the proposed Agricultural University. The terms of reference were-
(a) Does the proposed Agricultural University require more land than is already available for acquisition for the university, considering all aspects including cost of acquisition ?
(b) Is the site specified in G.O. Ms. No. 225/70/Agri. dated 29-5-1970 suitable for acquisition for the University, considering all aspects including costs of acquisition ?
(c) Is there any other alternate site for acquisition for the University which would be more suitable or equally suitable considering all aspects including cost of acquisition ?
(d) Has the selection of the site specified in G. O. Ms. No. 225/70/Agri. dated 29-5-1970 been motivated by extraneous consideration ?
7. There is an incident which is alleged to have taken place on 5-1-1971 which has to be mentioned here as it has relevance to one of the charges, At the time when the petitioner was functioning as Enquiry Officer, Sri K.P.K. Menon, who was the Chief Secretary of the State then, as well as now, is said to have met the petitioner on the morning of 5-1-1971 in the Chamber of the Chief Minister where he was present with two other Secretaries for discussion on certain important matters with the Chief Minister. According to Sri Ramankutty, the Chief Secretary Sri K.P.K. Menon took him aside and told him that a decision had, more or less, been taken to appoint him as Vice-Chancellor of the Agricultural University. But the petitioner would aver that he did not show any enthusiasm or interest in the matter which was not what the Chief Secretary expected and the Chief Secretary tried to convince the petitioner that he was the most suitable to hold the post of the first Vice-Chancellor of the Kerala Agricultural University. The petitioner would further aver that when three or four days later certain reports about his reaction to the acquisition of the Vellanikkara Estate after the inspection of the site appeared in some of the newspapers the Chief Secretary called him over the telephone and expressed great annoyance and also told him that he had spoiled his case. The petitioner, in reply, is said to have told the Chief Secretary that he had not expressed to the Press any reaction adverse to the interest of the Government, that the reports which appeared in the news item were not uniform, that he had not said anything objectionable at that time but only indicated that in the circumstances the Government was not likely to go in for the acquisition of the Vellanikkara Estate. He would also say that he did not hold any press conference but only spoke to pressmen at the Rest House, Palghat when he accidentally came across those gentlemen and they asked him about the acquisition.
8. Sri Ramankutty's report about the propriety of acquisition of the Vellanikkara Estate was submitted to the Government on 9-2-1971. This was placed on the table of the Legislative Assembly on the demand of several members and at that time the Chief Minister made it clear that the Government was unable to accept the findings in the report. A statement was also made by the Chief Minister justifying the rejection made by the Government. It was further mentioned by the Chief Minister at that time that the Government was of the view that it was necessary to subject the whole question to an enquiry under the Commissions of Inquiry Act by a Judge of the High Court of Kerala, that the Acting Chief Justice of the High Court had been contacted and that the Chief Justice had agreed to make available the services of Mr. Justice M. U. Isaac to hold the inquiry.
9. The petitioner would say that he was not a party to the enquiry and that since notice was given by the Commission directing the petitioner to be present at the time of the enquiry he made his appearance. In the report submitted by Justice Isaac the conduct of the petitioner had been commented upon. According to the petitioner these observations about him are extraneous to the terms of reference. He would also say that the conclusions of the Commission about the conduct of the petitioner were incorrect and it is not impossible to take a view different from that expressed in the report of the Commission on the materials available, particularly regarding the desirability of acquisition of Vellanikkara Estate and also the conduct of Sri K. P. K. Menon. He would also say that the report of the Commission is silent on the conduct of the Chief Minister who had, on 12-5-1970, approved the recommendations for the acquisition of Vellanikkara Estate by the Agricultural Production Commissioner, the Additional Secretary and the Minister for Agriculture.
10. In his report Justice Isaac had pointed out that when Dr. Money indicated in his note that the acquisition of the Vellanikkara Estate would cost about Rs. 142.5 lakhs, the authorities responsible for passing the order for its acquisition should have examined that matter, before ordering acquisition, and that, if they found that it would cost an amount anywhere near that, they should not have accepted his recommendation to acquire this estate. It is further found that if Dr. Money's proposal had been properly considered, the whole public scandal with regard to the acquisition could have been avoided. The Commissioner also expressed its apprehension whether a huge amount would not have been awarded as compensation for the estate in the light of the fabulous figures mentioned in Dr. Money's note. The conduct of the Additional Secretary and the Agricultural Production Commissioner in approving Dr. Money's proposal in the course of a day also came up for criticism by the Commission and these are also referred to in support of the petitioner's case of mala fides.
11. According to Sri Ramankutty he came to an independent conclusion in the matter of the desirability of acquiring the Vellanikkara Estate after perusing all these relevant files. The case of the petitioner, as urged at the hearing, is that, perusing and examining these files at the time when he had to take a decision as the officer appointed to enquire into the matter he felt that the conduct of Dr. Money, Mr. Ramakrishnan, the Additional Secretary and Mr. Chandrabhanu, the Agricultural Production Commissioner were rather strange, especially that of the latter two officers who had actually experience in land acquisition matters. He would say that the haste with which the matter was pushed through, the enormity of the compensation that was proposed, the acceptance of this without demur by two experienced officers and the Minister, an equally hasty approval by the Chief Minister were all matters which came to his notice at the time he had to prepare the report and naturally these had their impact on the decision on the question of the bona fides of the proposal to acquire Vellanikkara Estate. He would further say that if on such material he came to a decision that the acquisition of that estate would not be warranted, he cannot be charge-sheeted for this finding,
12. It is also urged that Sri Ramakrishnan, the Additional Secretary as well as the Agricultural Production Commissioner Sri Chandrabhanu having been found in the report of the Isaac Commission to be guilty of a very serious charge they have not been dealt with seriously. The very fact that they acted in the manner they did in approving of Dr. Money's proposal on 7-5-1970 without proper verification should have been considered very seriously and before initiating action against the petitioner action against them should have been taken. It is urged that though show cause notices were issued to the Additional Secretary and Agricultural Production Commissioner, no orders have been passed against them, the reason being they are supporters of the action of the first respondent and what is now attempted is a camouflage of taking action against them without any real intention to pursue such action. This is characterised as favouritism amounting to discrimination. These circumstances are relied on to indicate mala fides in the conduct of the respondents.
13. It is further pointed out that while the second respondent is seen to have stated, as apparent from the report in Malayala Manorama dated 1-10-1971, that Government had not examined the necessity to take proceedings against the petitioner a report appearing in the 'Indian Express', dated 23-10-1971 under the caption 'CPI's Demand' indicates that the State Executive of that party has suggested that the petitioner should voluntarily retire from service since his allegations against the Communist Party of India had been rejected by the Isaac Commission and the action suspending the petitioner which followed thereafter must be deemed to have been engineered by the Communist Party of India. The petitioner also refers to demands by some members of the Legislature belonging to the Communist Party of India on the floor of the Assembly for taking exemplary action against the petitioner and it is said that this is yet another reason why action was taken. These are the matters which are relied on by the petitioner to show that the real motivation behind the action taken against him was one of victimisation due to his conduct in submitting a report which, though honest, was not palatable to the Communist Party of India and, therefore, to the second respondent also.
14. Apart from the plea of mala fides two other pleas are also raised and urged. According to the petitioner, suspension could be decided upon only when decision has been taken to initiate disciplinary proceedings and that is not the case in the matter of passing Ext. P-1 order. The other argument raised is that suspension was not called for in the circumstances of the case as the purpose of suspension could only be to remove an officer from his sphere of influence and in the circumstances of this case such a proceeding was not necessary in the case of the petitioner.
15. The second respondent, the Chief Minister of Kerala State, has filed a counter-affidavit answering the plea of mala fides. In that it is stated that in coming to a decision to take action against the petitioner he was not influenced by any extraneous consideration, there was no political or any other pressure exerted on him, he had made an objective approach to the explanation submitted by the petitioner, the action was not merely based on the findings in the report of Justice Isaac but also upon the materials gathered at the enquiry held by Justice Isaac, the charges required to be enquired into are matters to be established by evidence, the Council of Ministers at their meeting on 8-1-1971 informally directed that the Chief Minister should take such action as he deemed necessary, pursuant to that he decided that the charges should be proceeded with and the petitioner should be suspended and finally this action of his was ratified by the Council of Ministers. In this context I may also notice the argument of counsel, Sri T.C.N. Menon that under the rules of business the Chief Minister was, by himself, entitled to take action as that taken under Ext. P-1 and that it wasnot even necessary to refer to the Cabinet or to have a ratification by the Cabinet. This stand of the second respondent is not disputed. But according to the petitioner the very fact that the Chief Minister has chosen to make it appear that the decision was that of the Cabinet was not without significance.
16. On behalf of the State also a counter-affidavit explaining the circumstances under which the action was taken against the petitioner has been filed. In the petition it is not only the order of suspension that is challenged but also the framing of charges against the petitioner. As to that it is stated in the counter-affidavit that such charges were framed on the basis of materials disclosed at the enquiry by Justice Isaac under the Commissions of Inquiry Act and not merely the report of the Commission, that the matterrequires to be gone into and at this stage it cannot be said by This Court that the charges will not be maintainable, that it is not as if the charges as they stand could be held to be unsustainable on the face of them and, therefore, the attack against the framing of the charges cannot succeed. As to the stand that the State was not competent to pass the suspension order, it is said that it was passed because it was necessary to keep the petitioner off from his office during the course of the enquiry to avoid embarrassment and such suspension has been effected only after a decision to take action had been reached.
17. I will now consider whether the action suspending the petitioner is bad for the reason that it has been taken before the initiation of disciplinary proceedings, as contended. The petitioner is governed by All India Services (Discipline and Appeal) Rules, 1969 (hereinafter referred to as the Rules). The rule relating to suspension during disciplinary proceedings is Rule 3 and the relevant part of the rule for the purpose of this case is only Sub-rule (1) and that reads thus:
3. (1) If, having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the service against whom such proceedings are started, that Government may-
(a) if the member of the service is serving under it, pass an order placing him under suspension, or
(b) if the member of the service is serving under another Government, request that Government to place him under suspension pending the conclusion of the inquiry and the passing of the final order in the case:Provided that, in cases where there is a difference of opinion between two State Governments, the matter shall be referred to the Central Government for its decision.
It is evident from the rule itself that suspension can be decided upon only when disciplinary proceedings are initiated against; the member of the service. The question raised before me is as to the time when it could be said that the proceedings are initiated. Of course, I need not go into the question whether even by the issue of tentative charges the proceedings could be said to have been initiated so as to enable the Government to keep the officer under suspension. That is because in the case before me the statement of defence to Ext. P-2 has been called for, that has been obtained and considered and then Ext. P-2 order has been passed. Rule 8 of the rules concerns the procedure for imposing major penalties. Sub-rules (1) and (2) which are relevant for the present purpose are extracted here:
8. (1) No order imposing any of the major penalties specified in Rule 6 shall be made except after an inquiry is held, as far as may be, in the manner provided in this rule and Rule 10, or provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a member of the service, it may appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
Sub-rule (2) indicates that the disciplinary authority must form an opinion as to whether there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against the member of the service. In a case such as the one before me where the explanation of the member of the service has been obtained, that is considered and a decision is taken to proceed with the charges, it cannot still be said that the authority has not come to a decision that there are grounds for inquiring into the truth of the misconduct alleged. In other words, at that stage, at any rate, initiation of proceedings must be deemed to commence.
18. Rule 3 of the Rules corresponds to the earlier rule which replaced it namely, Rule 5 of the All India Services (Discipline and Appeal) Rules, 1955. The question whether even before reducing the imputations of misconduct to the form of definite and distinct articles of charges and communicating them to the member of the service he could be suspended has been considered by the Supreme Court in Govinda Menon v. Union of India 1967-II L.L.J. 249 : : (1967)IILLJ219SC . The Supreme Court has noticed that the reference to the nature of charges in Rule 7(1)(corresponding to Rule 3(1) of 1969 Rules) cannot be understood in the same sense as the term 'charge' is meant in Rule 5(2) of the Rules. In other words the Supreme Court was of the view that the term 'charges' referred to in Rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the service. The consequence was that the Supreme Court took the view that even before communicating definite charges to the officer concerned he could be suspended.
19. Of course, the relevant rule provides that it is only on the initiation of disciplinary proceedings and not on mere contemplation of such proceedings that an order of suspension could be passed. The Supreme Court in Government of India v. Tarak Nath Ghosh : (1971)ILLJ299SC , took the view that disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him for the framing of charges. If the order of suspension itself shows that the Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order also mentions that such proceedings were contemplated makes no difference. In spite of the use of the word 'contemplated' in relation to disciplinary proceedings, on a reading of the circumstances the Supreme Court took the view that there has been initiation of proceedings. In a recent decision of the Supreme Court the position has been quite well stated and it is sufficient to look to the statement of law in that decision. I am referring to the decision in P.R. Nayak v. Union of India : (1972)ILLJ535SC . One of the contentions raised in that case was that the order of suspension against the appellant passed under Rule 3(1)(a) of the All India Services (Discipline and Appeal) Rules, 1969 (the same rule considered here) was bad because no disciplinary proceedings by way of enquiry had been commenced prior to the order of the suspension. The appellant there was a member of the Indian Civil Service. On 23-3-1971 the Central Government passed an order suspending the appellant. This was a sequel to findings of misconduct against him in the report of the Parliamentary Committee on Public Undertakings and a subsequent report under the Commissions of Inquiry Act, 1952 by Sri Takru, a retired Judge of the High Court of Allahabad. On 13th January, 1971 Sri Takru who had been so appointed as commissioner submitted an interim report recording his findings in regard to the question whether there was any prima facie case against the appellant for departmental enquiry into 14 charges against him. Barring part of 2 charges, all the remaining charges were prima facie found to be established. It was then that the suspension order followed. That order mentioned that disciplinary proceedings against Sri P.R. Nayak were contemplated and also referred to the President having considered the available material and further having regard to the nature of the charges against him and the circumstances of the case, was satisfied that it was necessary and desirable to place Sri P.R. Nayak under suspension. Therefore, the position was that the Government had material before it to take action. It was mentioned that the disciplinary proceedings were 'contemplated'. But it was also said that considering the available material and having regard to the nature of the charges it was satisfied that the suspension was called for. Whether this would be sufficient to bring the case under Rule 3(1) of the Rules was the matter that the Supreme Court had to deal with. The Court referred to the earlier decision in Govinda Menon v. Union of India : (1967)IILLJ219SC , and the subsequent case in Government of India v. Tarak Nath Ghosh : (1971)ILLJ299SC , and held thus:
The entire gamut of disciplinary proceedings will, therefore, embrace the preliminary inquiry into allegations, a prima facie opinion of the Government as a result thereof and the formal enquiry giving the Government servant full opportunity to defend against the articles of charge. Secondly, disciplinary proceedings cover the entire range of proceedings from the preliminary investigation into complaints against the honesty and conduct of a Government servant to the final order of punishment after inquiry under Rule 8. Thirdly, no formal order of initiation of disciplinary proceedings is contemplated in the Rules nor is the initiation of disciplinary proceedings in the entire context of facis. Fourthly, suspension is not an inscrutable matter. It speaks, it acts and it affects. It is a disciplinary matter. It is a part of disciplinary proceedings. Fifthly, there can be suspension of a Government servant after a preliminary investigation when disciplinary proceedings in the form of departmental inquiry are contemplated. This suspension is not a punishment but a disciplinary matter in aid of disciplinary proceedings. Suspension is ordered to facilitate free investigation and collection of evidence. It may be that there is not adequate evidence. Again, where suspension takes place during investigation of a criminal case there may be departmental enquiry even after conviction or acquittal. The departmental enquiry is for inflicting punishment. Suspension is not so. That is why if there is favourable report after a departmental inquiry the Government servant may obtain restoration of reduction of pay during the period of suspension. Departmental proceedings, disciplinary proceedings, preliminary enquiries for setting up an authority under the provision of the Public Servants Inquiry Act, 1950, are all variants of disciplinary proceedings.
In this view the suspension of Sri P.R. Nayak was held to be justified.
20. In regard to the petitioner the suspension order has been passed not only after the framing of charges under Ext. P-2 but apparently only at a time when, on a consideration of the written statement of defence, the Government had come to the conclusion that the charges had to be proceeded with and had to be enquired into. I see no reason to say that within the meaning of Rule 3(1) of the Rules disciplinary action had not been initiated at the time when the order of suspension was passed. Therefore, this contention of the petitioner must fail.
21. I will now advert to the case of mala fides. Mala fides is often a matter of inference from the circumstances of the case. Direct evidence of mala fides cannot normally be expected. If the conduct of a person leads to an irresistable conclusion supporting the charge of mala fides the Courts will have to find so. The case here is that the Chief Minister, who passed Ext. P-1 order, was influenced by the political party to which he belonged in the matter of taking action and it was not his own independent will or judgment as the Chief Minister of the State that was exercised. It is in this context, that the conduct of the Chief Minister, in seeking to get the imprint of a Cabinet decision on his action in suspending the petitioner, is very seriously commented upon by counsel for the petitioner. According to him if the rules of business permitted the Chief Minister to pass an order of suspension or an order to proceed with the disciplinary action, without reference to his Cabinet there was no necessity to make it appear that it was the Cabinet which decided the matter. As a matter of fact it was also said that the Cabinet did not decide the matter on the 8th. According to counsel 'informal decision' is a term which makes no sense. A decision is either taken or it is not taken at all. If a decision is taken in the manner in which it is to be taken it is a valid decision. Otherwise it is not a decision at all. There is no necessity of seeking ratification if a decision had already been taken properly. Moreover, if the Chief Minister by himself was competent to take a decision, ratification was uncalled for too. This, in short, is the case of counsel for the petitioner on this part of the case. I do not think that the mere fact that the Chief Minister chose to place the question before the Cabinet though he could have taken a decision by himself should be considered as indicating any mala fides on his part. In view of the criticism in the Press and elsewhere imputing corruption to the party to which the Chief Minister belonged, possibly the Chief Minister thought that the prudent course was to take the matter to the Cabinet and get the approval of the Council of Ministers. I am unable to read into this circumstance any conduct which should lead me to doubt the good faith of the second respondent.
22. The circumstances which, according to the petitioner, should be more than sufficient to illustrate the want of good faith of the Government have been referred to by me earlier. In particular the petitioner's counsel Sri S. Easwara Iyer emphasises certain events which, according to him, clearly indicate that the Communist Party of India was after the blood of his client. It is his case that the party had decided upon that as a revenge against the conduct of the petitioner, in what they thought was maligning the Communist Party of India by means of the report submitted by him. The 'Janayugam' is the newspaper organ of the Communist Party of India and in its editorial dated 18-10-1971 the conduct of the petitioner is said to have been commented upon. The Communist Party of India (State Executive) is said to have resolved, as seen from a report in the 'Indian Express', dated 23-10 1971 under the caption 'C.P.I.'s Demand' that the petitioner should voluntarily retire from service since his allegations against the C.P.I, had been rejected by the Isaac Commission. Reference is also made to interpellations on the floor of the Legislative Assembly on 23-11-1971 by some of the members who belong to the Communist Party of India seeking action against the petitioner. These, it is said, were influences which acted against the petitioner. It is further said that the Chief Minister himself belongs to that party which felt aggrieved at the petitioner's report in which the petitioner had, on materials available to him, made observations not to the liking of the Communist Party of India. It is further the case that discriminatory treatment evidenced by a soft approach to the Agricultural Production Commissioner and the Additional Secretary for Agriculture is quite a significant fact.
23. The 'Janayugam' editorial itself is not before the Court and the Court is not in a position to know the contents thereof or whether it could have any hearing on the decision by the Chief Minister or the Cabinet. It is not the petitioner's case that State Executive called upon the Government to take any action against the petitioner. The interpellation on the floor of the Legislative Assembly on 23-11-1971 is long after the issue of Ext. P-2 memo of charges to the petitioner and, therefore, it cannot be said that the Chief Minister was influenced in commencing action against the petitioner by reason of the questions asked by the members of his party in the Legislature. Apart from these, it is not possible to say that merely because the party newspaper or the party itself makes a demand for action, action should not follow, if other-wis3 such action could be justified. It is true, that in a sense the Communist Party of India to which the Chief Minister himself belonged was in the dock even before Sri Ramackutty was appointed to hold the inquiry and possibly his report not only did not mend the situation but made it more difficult for the party. I do not think that for this reason a'.one 1 should assume that the Chief Minister, acted without good faith unless it is further shown that there was no material at all to take any action against the petitioner or that it would appi-rently be perverse for any authority to consider that such an action should be initiated upon the materials available. That, of course, is a different matter and relates to the realm of sustainability of the charges.
24. Though the action against Sri Ramakrishnan, Additional Secretary and Sri Chandrabhanu, Agricultural Production Commissioner had not been initiated at the time when Ext. P-2 notice was issued to the petitioner, it is seen that later show cause notices have been issued to them. Sri S. Easwara Iyer points out with particular reference to the report of the Isaac Commission (a copy of which was made available to me by Sri T.C.N. Menon at the hearing) that while what is urged against the petitioner is only a want of proper care, in the case of those two officers there are findings in the report of the. Inquiry Commission of want of good faith in a matter relating to a very huge commitment to the State and that deserves much more serious notice than the charges against the petitioner. If nevertheless their cases have been viewed lightly, according to counsel, it is apparent that the consideration which weighed with the Government was not any expediency of action against the petitioner and Ors., but victimisation of the petitioner.
25. I am afraid, I cannot fully agree with this contention as, in regard to the action against Sri Ramakrishnan and Sri Chandrabhanu, I would only say 'wait and see'. It is too premature now to hold that action against them would not be pursued and if found guilty they would not be properly dealt with.
26. I will now sum up the case as to the plea of mala fides. The circumstances do indicate that the petitioner was appointed to hold the enquiry by orders of the Government when there were imputations of corruption against the political party to which Chief Minister belonged. The report of the petitioner which, in a great measure, attempted to substantiate those imputations, would not have been welcome to the party. Under those circumstances the Communist Party of India is seen to have demanded the petitioner's voluntary retirement from service on the basis of the Isaac Commission report. It may be true that the Chief Minister was in a position to be influenced by his own party and it was also possible that he might have taken action at their instance. But it is equally possible that as the Chief Minister he took action on his own initiative irrespective of any external pressure. The mere fact that the 'Janayugam' publishedan editorial adverse to the petitioner or that the State Executive of the Communist Party of India, by resolution, wanted the petitioner to voluntarily retire or even the fact that subsequently after the framing of the charges some members of Legislature belonging to the Communist Party of India raised the question in the Assembly are not matters sufficient to lead a Court to the one and only conclusion that the Chief Minister could not have acted independently. To find a plea of mala fides the Court must be in a position to hold positively that the authority whose act is impugned could have been acting only with a dishonest motive. It is not sufficient to find that it was probably so. On an anxious consideration of the circumstances of the case, I do not think that the Government or the Chief Minister could have acted as it did only because of malice entertained against the petitioner or because of the influence of the Communist Party of India. Therefore, I must conclude that the petitioner has not succeeded in establishing the plea of mala fides against the Chief Minister and the Government.
27. The 3rd and the last attack to the order suspending the petitioner is that the circumstances of the case do not warrant keeping the petitioner away from his office. I have already adverted to Rule 3(1) of the rules. The rule in terms does not indicate the purpose of the order of suspension. But it refers to matters which are to be noticed in deciding whether a member of the service is to be suspended or not. It is to be on the satisfaction of the Government that the suspension order has to be passed and such satisfaction is to be reached having due regard to the nature of the charges and the circumstances of each case. Based on this Sri Easwara Iyer, counsel for the petitioner, urges that the Government is not justified in issuing an order of suspension merely because some charges are framed against a member of the All India Service. There must be material for satisfaction that during the course of the disciplinary proceedings it is necessary to keep the officer under suspension. Satisfaction referred to in Rule 3 is not the subjective satisfaction of the Government. Sri T.C.N. Menon, counsel for the Government, does not contend differently. On a reading of the rule it is evident that the satisfaction of the Government in passing an order must be based on relevant material and such objective satisfaction is open to judicial review. But the scope of interference by Courts by way of judicial review must necessarily be limited as the Government must primarily be the Judge as to whether circumstances warrant suspension or not. But if it is shown to the Court that the considerations which weighed with the Government for passing an order of suspension were wholly irrelevant or extraneous the Court would be justified in interfering with such order. In this context it is necessary to consider what exactly is the purpose of keeping an officer under suspension during the course of disciplinary proceedings against him.
28. The suspension of a member of an All India Service or for that matter of any civil servant against whom disciplinary proceedings are initiated is not to be intended as a punishment. The order of suspension should not normally depend merely on the gravity of charges but should depend upon a consideration of the question whether it is necessary to keep him away from the post or office that he occupies. The effect of passing an order of suspension is to keep such officer away from his office for the time being and is intended to deprive him of the powers of the office temporarily. Its objective is to remove him from his sphere of influence during the investigation into and trial of the charges against him and this may be necessary to avoid embarrassment to the officer as well as his subordinates and associates in office. It may be that some or many of the records which are in his custody may have to be looked into. His colleagues or subordinates or sometimes even his superiors in office may have to be questioned. To keep the officer in his office when there is necessity to find out facts from people working under him or with him, and to examine papers in his office would be causing considerable embarrassment, if not annoyance, to him as well as to others. There may be cases where such suspension may be justified also to avoid misuse of the authority of his office, misuse which may result in obstruction to the proper trial of the charges against him. The situation could be met by the officer being kept under suspension or in some cases merely by transferring the officer away from the scene, the choice necessarily depending upon theexigencies of the situation. There may be yet another set of cases where criminal proceedings are pending against an officer, and in such cases the officer is to be kept away from the office for avoiding embarrassment to all concerned. If a Court called upon to review an order of suspension finds that the Government purported to act on the basis of materials available to it and such materials are not irrelevant to the issue, there will be no scope for the Court to form an independent opinion on the necessity of suspension. But where neither on the basis of the order of suspension nor on the materials disclosed in the case any relevance is shown to justify resort to suspension or where the considerations resulting in the suspension or the objects intended to be served by the suspension are irrelevant and extraneous the Court should not be slow to act. The Supreme Court said in Government of India v. Tarak Nath Ghosh : (1971)ILLJ299SC , in regard to suspension as follows:
When serious allegations of misconduct are imputed against a member of a service normally it would not be desirable to allow him to continue in the post where he was functioning. If the disciplinary authority takes note of such allegation and is of opinion after some preliminary enquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed, it would not be improper to remove the officer concerned from the sphere of his activity inasmuch as it may be necessary to find out facts from people working under him or look into papers which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it was to make the enquiry to do so while the officer was present at the spot. Such a situation can be avoided either by transferring the officer to some other place or by temporarily putting him out of action by making an order of suspension.
In the later decision in P.R. Nayak v. Union of India : (1972)ILLJ535SC , referring to the same question, the Supreme Court said thus:
Before the inquiry is started the Government may find it necessary in the circumstances of cases to place a Government servant under suspension. Having regard to the charges the presence of the Government servant in the department where he worked may embarrass and impede the full investigation and collection of evidence. In the circumstances of a case the Government may suspend a Government servant. The inquiry will take place afterwards.
29. I have referred to the charges earlier in this judgment. The contention of the petitioner is that even if he is allowed to continue in office as a Member of the Board of Revenue there would be no embarrassment or annoyance to anybody who is likely to be a witness in the proceedings against him much less to any of his subordinates or associates and further the course of the disciplinary proceedings was not likely to be in any way affected by keeping him in office. With regard to some of the charges at least what the petitioner has said here is true. If that cannot be said of all the charges against him and if with regard to any of the charges keeping him out of office is called for, then, of course, there is no scope for interference. In paragraph 11 of the counter-affidavit on behalf of the State, the Additional Secretary toGovernment, Agriculture Department, states thus:
Suspension can be ordered when the charges are grave and the continuance of the delinquent official in office would be detrimental to the maintenance of discipline among the members of the service and the same would cause embarrassment for senior officers of the Government to work with the official, against whom grave charges of this nature are made. The necessity of keeping the petitioner under suspension is indicated in Ext. P-1 order itself. The averment that the petitioner's presence as the II Member, Board of Revenue, will not in any way he embarrassing to the person enquiring into the charges is totally irrelevant. But certainly, his continuance in office during the enquiry will be embarrassing to other officers who are to be examined as witness in the enquiry.
In para 19 of the counter-affidavit it is averred that two officers who have to give evidence are subordinate officers of the Board of Revenue.
30. The first of the charges is that Sri Ramankutty did not keep an open mind in the inquiry and thereby has not shown devotion to his duty. The second charge concerns the preparation of the report in a grossly rash, negligent and irresponsible manner. It is said that he has not taken care to properly ascertain the market value of the Vellanikkara Estate and without taking into account the other relevant particulars he had determined the value of acquisition at the fabulous figure of 2 crores, that he suggested some other unsuitable land as more suitable for the purpose of the Agricultural University and made deliberate use of the irrational conclusions so worked out by him without any basis. The 3rd charge concerns the observations in the petitioner's report that Dr. Money's recommendations were made under heavy pressure from some powerful quarter. It is said that by making such a finding the petitioner has maligned the Government he was serving and this is a conduct quite unbecoming of a member of the service to which he belonged. Similar conduct is the subject-matter of the 4th charge. The charge of wanton, callous and irresponsible allegation against Sri K.P.K. Menon, the Chief Secretary of the State, is the subject-matter of the 5th charge. The last of the charges is that, having been entrusted with the responsible duty of conducting an enquiry and making a report, the petitioner gave out to press representatives, even before submitting his report, the findings and conclusions in his report and thus acted in violation of Rules 7 and 9 of the All India Services (Conduct) Rules, 1968.
31. I narrated the contents of the charges just to appreciate the case of the petitioner as to the impropriety of the suspension or the irrelevancy of suspension in the context. In ground 'F' the petitioner pleads that there was no reason to remove the petitioner from service temporarily for fear of his activity (as II Member of the Board of Revenue) because of the necessity of finding out facts from people, working under the petitioner or looking into papers, which are in his custody. It is further stated by him that-
The subject-matter of the charges, it is undeniable, are wholly unconnected with the duties of the petitioner as a Member of the Board of Revenue and having regard to the dictum of the Supreme Court that suspension may be warranted only if the exigencies of the condition of service require or call for an order of suspension the order of suspension after obtaining the written explanation of the petitioner on Ext. P-2 (said to be not formal charges in Ext. P-4 counter-affidavit of the respondent) can only be the result of bad faith.
In paragraph 37 of the affidavit the petitioner would state that the order of suspension was only intended as 'a sop for the gullible among the supporters of the said political party.' In view of these averments and particularly in view of the allegation that the Chief Minister waspressurized and compelled by the Communist Party of India for taking drastic action against the petitioner, I would have expected a better statement of the case of the State in regard to the reason for suspension than what is seen stated in the counter-affidavit of the Additional Secretary, Agricultural Department. In a case where there is a plea of bad faith against such a high placed authority as the Chief Minister of the State and that at the instance of a very senior official of the Government, I would have expected the State to disclose more particulars to the Court than what has been made available in the counter-affidavit. It cannot be denied that it is not Sri Ramankutty's function as a Member of the Board of Revenue as such that is called in question. It is his conduct arising consequent to his appointment to hold the enquiry that has given rise to the controversy. Some of those charges, as pertinently pointed out by the petitioner, are those which do not call for evidence and some, such as communication to the press call for evidence only from non-official witnesses, like the members of the Press. In these circumstances the respondents would have done well to answer the petitioner's case by mentioning to the Court clearly as to how and in what manner embarrassment or prejudice would have been caused by keeping the petitioner in office. They would also have been well advised to indicate why the resort to suspension was considered as the only proper or prudent course. If it is that the examination of witnesses would be prejudiced by keeping the petitioner in office the counter-affidavit could have indicated the particulars of the witnesses whose examination will be so affected. I must confess that I am not quite happy with the approach to the matter by the State Government in its counter-affidavit. At the hearing Sri T.C.N.Menon, counsel for the State, mentioned that Dr. Money, Sri Ramakrishnan. Sri K.P.K. Menon, the Tahsildar, Trichur and the District Collector, Trichur may have to be examined as witnesses and according to him this list was not exhaustive of the official witnesses. Though this be the position, I do not think that the Court should assume the role of an appellate-authority to decide independently whether the materials disclosed to the Court are such that on it, it would have reached the same decision as that taken by the Government. The examination must be limited to the consideration of the relevancy of the materials and not its adequacy. I cannot say on the contentions in the counter-affidavit and the materials disclosed, that the suspension was based on no relevant or material consideration or that there was no basis at all for the action taken. Hence I am not setting aside Ext. P-'l order in regard to suspension.
32. In the light of what I have stated here, the matter of suspension would be more a question for the Government itself to reconsider than This Court to interfere. I have indicated herein the real purpose and scope of an order of suspension. I have also indicated that the purpose could be achieved in some cases by methods other than suspending an officer. The petitioner is a senior officer in the service of the Government. He is about to retire. The very fact that he was appointed to enquire into a controversial matter of considerable stake would indicate that he was an officer on whom Government had confidence. The procedure of keeping an officer from any particular post by posting him elsewhere, or other similar means is not unknown to the State Government. I am referring to these because, though on the materials disclosed, there is no scope for intervention with the the order of suspension, I have to observe that fairness requires that the case of suspension should engage the re-consideration by the Government. This the Government is empowered to do under Sub-rule 7(3) of Rule 3 of the Rules. That rule invests the Government with power to modify or revoke any order of suspension made by it. Thus, while finding that the order of suspension does not call for interference, I think this is a case in which the Government should re-consider the question of suspension in the light of what I have stated here and particularly the purpose of suspension and other effective methods by which such purpose could be achieved. I believe that in doing so respondents will act fairly. Since this is a matter of considerable concern to the petitioner this will be done expeditiously also.
33. Though in the original petition there is a challenge to that part of the order in which the charges have been finally settled against the petitioner, that is not very seriously challenged before me. It is only natural since, as I stated on the earlier occasion when I decided O.P. No. 5454 of 1971, it is too premature now to say that the charges are unsustainable. If any one of the charges did require examination and that would call for evidence, necessarily no question of quashing the charges at this stage would arise. From a resume of the substance of the charges made earlier in this judgment it would be apparent that the charges require further consideration in the light of materials which should be adduced at the trial.
34. In the result, the original petition is dismissed subject to what I have stated above. But in the circumstances of the case, I direct the parties to suffer costs.