State of U. P. v. Rajendra Shanker Nigam — 1973 DIGILAW 232 (ALL)

JUDGMENT Satish Chandra, J. - These appeals raise a common question of law. It appears that in both these cases the authorities concerned received complaints making serious allegations of corruption against the respondent. They sent the complaints to the District Magistrate concerned for investigation and verification in one case and to the Vigilance Department in the other case and at the same time they passed an order suspending the respondent. The respondent challenged the order of suspension by a writ petition instituted in this Court. A learned Single Judge held that Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules provided for an order of suspension when an inquiry is contemplated or is proceeding. The expression "an inquiry is contemplated" refers to the formal disciplinary inquiry held under rule 55 of the Rules. The order of suspension cannot hence be passed until the authority concerned has decided to initiate the departmental inquiry. In the present cases the order was passed much prior to that stage, namely, when the complaints had been sent only for verification and before any decision to commence formal disciplinary proceedings was taken. On this view the impugned orders of suspension were quashed. Aggrieved, the State has come up in appeal. 2. In several decisions the Supreme Court has observed that suspension can be of several kinds. Every employer has an inherent right to suspend the employee but such inherent right of suspension can be exercised only for prohibiting the employee Rem attending to his work, but without affecting his emoluments or privileges. When such an order is passed the employer is not entitled to affect the statutory or the contractual right of the employee to get the emoluments and privileges of his past. An order of suspension can also be passed by way of punishment or during an inquiry into the charges of misconduct, but these categories of suspension orders can be passed only if the authority is empowered to do so either by the prescribed conditions of service or by the terms of the contract. The employer has no inherent right to pass such a suspension. See : T. Cajee v. U. Jormanik Siam, AIR 1961 S.C. 276 , Para. 14, B. P. Kapur v. Union, of India, AIR 1964 S.C. 787 , Paras. 9 and 11 and V. P. Gindroniya v. State of M. P., AIR 1970 S.C. 1494 , Paras. The employer has no inherent right to pass such a suspension. See : T. Cajee v. U. Jormanik Siam, AIR 1961 S.C. 276 , Para. 14, B. P. Kapur v. Union, of India, AIR 1964 S.C. 787 , Paras. 9 and 11 and V. P. Gindroniya v. State of M. P., AIR 1970 S.C. 1494 , Paras. 8 and 9. 3. In the present cases the authorities do not rely upon their inherent right to suspend the Government servant. The order of suspension provides that the officer shall receive suspension allowance which is one-third of the regular pay. This shows that the impugned order of suspension was not passed in the exercise of the inherent powers. The impugned order of suspension is to be justified by Rule 49-A of the C. C. A. Rule 49-A was promulgated by the notification dated 30th January 1953. This notification was made as a result of the recommendations made by the Disciplinary Proceedings Inquiry Committee appointed by the Government of U.P. in 1952. This Committee was headed by the then Chief Minister, the Hon'ble Mr. Govind Ballabha Pant. In paragraph 15 of this report the Committee holds : - "15. Under present administrative practice suspension is frequently ordered in cases where an inquiry is started into the conduct of a Government servant. In rule 49 of the C. C. A. Rules suspension is mentioned as one of the penalties which can be imposed on a delinquent Government servant. But there are several questions connected with suspension which require thorough examination. For example, it is no where laid down at what stage of an inquiry a person should be suspended and practice varies according to the inclination of the authority concerned. Sometimes a Government servant is placed under suspension as soon as there is reason to suspect any misbehaviour on his part even though there may not be full material available to frame a charge against him. Such hurried suspension obviously involves hardship to the suspended Government servant and if further inquiry results in the Government servant concerned being found not guilty, it also involves wasteful expenditure of public funds. 4. Such hurried suspension obviously involves hardship to the suspended Government servant and if further inquiry results in the Government servant concerned being found not guilty, it also involves wasteful expenditure of public funds. 4. Another point in connection with suspension which has recently been brought into prominance by rulings of certain High Courts is that suspension amounts in effect to reduction in rank and thereby attracts Art. 311 (2), and consequently suspension should only be ordered after going through the full procedure of inquiry and punishment prescribed under rule 55 of the C. C. A. Rules. 5, We have carefully examined the foregoing points and to remove these difficulties recommend as follows :- (i) Suspension should be removed from the list of punishments mentioned in rule 49 of the C. C. A. rules and other cognate rules. (ii) A separate rule should be framed to enable the competent authority to order suspension pending inquiry. (lii) If the inquiry finally results in the dismissal, or removal of the Government servant the order of dismissal or removal should take effect from the date on which suspension came into effect. (iv) The power of suspension should vest in the appointing authority and in the case of Government servants belonging to a State Service there should be no delegation of this power to any lower authority. In the case of Government servants not belonging to a State Service the power may be delegated to an authority lower than the appointing authority and the particular authority to which such power be delegated may be examined with reference to the various classes of Government servants in different departments. (v) Suspension should not ordinarily be resorted to unless the allegations are serious enough to warrant removal, dismissal or reduction and should in such cases immediately precede the framing of charges and their communication to the accused Government servant. Appendix "F" gives drafts of two new rules 49-A and 49-B embodying the above recommendation which should be added to the C. C. A. Rules." 6. Appendix "F" gives drafts of two new rules 49-A and 49-B embodying the above recommendation which should be added to the C. C. A. Rules." 6. The Government appears to have accepted the report of this Committee in its entirety and in consequence thereof issued the notification dated January 30, 1953 introducing Rule 49-A. The rule as enacted runs as follows : - "49-A. A Government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority: Provided that in the case of any Government servant or class of Government servants, not belonging to a State service, the appointing authority may delegate its power under this rule to the next lower authority. N.B. As a rule, suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. Suspension, where deemed necessary should, as far as possible, immediately precede the framing of charges and the communication to the Government servant charged." 7. The Note put in the form of N.B. was a part of the notification. This is as much a part of Rule 49-A as the preceding two paragraphs. It has statutory force. 8. By Notification dated October 29, 1968 the Governor amended Rule 49-A. It was provided : - "2. In the Civil Services (Classification, Control and Appeal) Rules, as adopted in their application to persons under the rule making control of the Governor of Uttar Pradesh, for the rule set out in column 1, the rule set out in column 2 shall be substituted : - Column I Existing rule 49-A 49-A. A Government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority : Provided that in the case of any Government servant or class of Government servants, not belonging to a State service, the appointing authority may delegate its power under this rule to the next lower authority. Column 2 Rule 49-A as hereby substituted. Column 2 Rule 49-A as hereby substituted. 49-A(l) A Government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority: Provided that in the case of any Government servant or class of Government servants, not belonging to a State service, the appointing authority may delegate its power under this sub-rule to the next lower authority. Provided further that any other authority empowered by the Governor by general or special order in this behalf, may place a Government servant under suspension under this sub-rule. (2) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed, under suspension by an order of the appointing authority- (a) with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours; and (b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding, forty-eight hours and is not forthwith dismissed or removed consequent to such conviction. Explanation: - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3) Where a penally of dismissal or removal from service imposed upon a Government servant is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions :- (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid be deemed to have continued in force on and from the date of the original order of dismissal or removal; (b) if he was not under suspension, he shall, if so directed by the appellate or reviewing authority, be deemed lot have been placed under suspension by an order of the appointing authority on and from the date of the original order of dismissal or removal. Provided that nothing in this sub-rule shall be construed as affecting the power of the competent authority, in case where a penalty of dismissal of removal from service imposed upon a Government servant is set aside in appeal or on review under these rules on grounds other than the merits of the allegations on which the said penalty was imposed but the case is not remitted for further inquiry or action or with any other directions, to pass an order of suspension pending further inquiry against' him on those allegations so, however, that any such suspension shall not have retrospective effect. (4) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the appointing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their particulars better specified or any part thereof of a minor nature omitted:- (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall subject to any directions of the appointing authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal; (b) if he was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal. (5) (a) Any suspension order or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by any authority specified in sub-rule (1). (b) there a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings. (6) To the extent of any repugnancy between this rule and subsidiary rule 199, Financial Hand Book, Volume II, Parts II to IV, the letter shall cease to apply to Government servants governed by this rule." 9. It may be seen that the first two paragraphs of the preexisting Rule 49-A were repealed and re-enacted. The Note existing in the original Rule 49-A headed as N.B. was not substituted or amended or repealed. That Note continued to form part of Rule 49-A. The amended Rule 49-A retained the original first two paragraphs but added several more paragraphs thereto. The power to place a Government servant under suspension was exercisable in the same situation after the amendment as before. The power accrued when an inquiry is contemplated or is proceeding against the conduct of a Government servant. The Note appended at the end of Rule 49-A does not confer power of suspension. It provides for the occasion and the time when the power of suspension may be exercised. The first part of the Note says that as a rule suspension should not be resorted to unless the allegations against the Government servant are so serious that dismissal, removal or reduction may ordinarily be expected. This is the normal rule but the phrase "as a rule" occurring at the beginning of the Note makes it clear that there may be an exceptional situation where the power of suspension may be exercised even though the conditions of this part of the Note are not satisfied. Similarly, the second clause of the Note providing that suspension should "as far as possible" precede the framing of charges and their communication to the Government servant points to the point of the time when normally the power to suspend should be invoked. The use of the phrase "as far as possible" leaves latitude to the authority to exercise the pre-existing power of suspension even before the framing and communication of the charges. But, of course, this is not to be done as a normal rule, but in an emergent situation. 10. The Note does not delimit the scope or amplitude of the power to suspend which is deducible from the opening paragraph of Rule 49-A. The Note, on the other hand, relates to the exercise of the power. The two provisions operate in different fields. 11. 10. The Note does not delimit the scope or amplitude of the power to suspend which is deducible from the opening paragraph of Rule 49-A. The Note, on the other hand, relates to the exercise of the power. The two provisions operate in different fields. 11. Under Rule 49-A the power to suspend arises when an inquiry against the conduct of a Government servant is either contemplated or is proceeding and the power continues to exist fill the conclusion of the inquiry. 12. Rule 49-A does not define or elaborate the nature of the inquiry mentioned in it beyond saying that the inquiry should be against the conduct of the Government servant. Rule 55 provides the procedure for a departmental inquiry for taking action by way of dismissal, removal or reduction in rank. Rule 49, however, provides several other kinds of penalties which may be imposed upon a Government servant for good and sufficient reasons like censure, withholding of increments including stoppage at an efficiency bar, recovery from pay of any pecuniary loss caused to Government and suspension. Take a case where the authority at the conclusion of the inquiry is disposed to pass an order of suspension as a substantive punishment under Rule 55. The inquiry preceding such an order is not an inquiry contemplated by rule 55. The Note appended to Rule 49-A does not as a matter of law preclude an order of suspension in such a case because it provides that as a general rule an order of suspension should not be passed unless dismissal, removal or reduction in rank is going to be the outcome of the inquiry. The power to suspend is available even where an officer is ultimately punished by an order of suspension. Such interim suspension can be ordered where an inquiry against the conduct of a Government servant is contemplated or is proceeding even though ultimately the awarded punishment is an order of suspension. Rule 49-A read as a whole, therefore, does not confine the existence of the power of suspension thereunder to only such cases where the contemplated inquiry is in respect of a proposal to dismiss, remove or reduce in rank. The term `inquiry' occurring in Rule 49-A cannot hence be confined to an inquiry held under rule 55. 13. The material and relevant expression in Rule 49-A is "an inquiry is contemplated or is proceeding". The term `inquiry' occurring in Rule 49-A cannot hence be confined to an inquiry held under rule 55. 13. The material and relevant expression in Rule 49-A is "an inquiry is contemplated or is proceeding". The term "contemplated" is not a term of art. It has been used in its plain ordinary meaning. The Shorter Oxford & Dictionary, Volume I at page 380 defines the word `contemplated' to mean "to have in view, to expect, to take into account as a contingency". It indicates a stage where an inquiry into the conduct of a Government servant is imminently expected with a view to impose some punishment upon him. On receipt of complaints against the conduct of a Government servant the competent authority sets in motion an informal inquiry to certify the correctness of the allegations or to collect material with a view to hold a disciplinary inquiry so that if the alleged misconduct is established suitable punishment be awarded. The inquiry which will result in imposition of punishment can be said to be expected or contemplated. When the Government sets in motion its machinery for investigating the alleged complaints so that it may hold a formal inquiry more properly the formal inquiry is clearly contemplated, and the power to suspend comes into play. In S. C. Kharbanda v. State of U. P., S.A. No. 441 of 1972. D/d. 21.7.1972 a Division Bench observed : - "The mere fact that a preliminary: enquiry has been admittedly instituted is proof positive of the fact that the departmental enquiry is contemplated. Were it otherwise, the authorities would decline to undertake the preliminary enquiry." According to this decision, the power to suspend will accrue when an informal inquiry has been instituted. 14. As already noticed, the existence of power is not to be confused with the limitations, if any, imposed upon its exercise. The Note appended to Rule 49-A specifies the occasion when alone the power of suspension may be exercised, normally. Under it suspension, where deemed necessary, should as far as possible, immediately precede the framing of charges and their communication to the Government servant charged. This is the normal rule. If the Government exercises the power of suspension at an earlier point of time the burden is upon it to establish that it was not possible to comply with the conditions of the Note. This is the normal rule. If the Government exercises the power of suspension at an earlier point of time the burden is upon it to establish that it was not possible to comply with the conditions of the Note. In both the present cases there is not even a whisper in the affidavits filed on behalf of the Government explaining or giving any reason why this part of the statutory rule was not capable of being complied with. It cannot hence be said that the appellant State has affirmatively established that there was any exceptional or compelling circumstance because of which the stage mentioned in the second part of the Note could not be awaited. 15. The order of suspension passed against Shri R. S. Nigam the respondent in Special Appeal No. 114 of 1973 only mentions that the Government has received serious complaints of corruption from which doubt about his honesty and integrity has arisen. The existence of such serious complaints is to our mind not relevant and material for the purposes of the Note. If the Government desired that it was not feasible to retain the charged officer at his post it was open to it to pass an order of suspension in the exercise of its inherent power. The only difference would have been that the officer would have been entitled to full pay and allowances instead of one third allowance. Since no circumstances making out a case of emergency or of exceptional circumstances have been even attempted to be established we deem it unnecessary to express a concluded opinion upon this aspect of the case. 16. In our opinion, both the orders of suspension were liable to be quashed though on grounds different than the ones that appealed to the learned Single Judge. 17. In the result, both the appeals fail, and are dismissed but we make no order as to costs.