Binoy Bhusan Mondal vs State of West Bengal

P.K. Banerjee, J.—This Rule is directed against an order of suspension passed on the Petitioner Sri B. B. Mondal, Additional Member, Board of Revenue, Government of West Bengal, dated June 7, 1972. The Petitioner joined the Indian Administrative Service in 1949. Between the period March 12, 1968, and July 7, 1971, the Petitioner was the Commissioner of Refugee Rehabilitation and Ex-officio Secretary of R.R.R. Department, Government of West Bengal. Between July 8, 1971, and August 7, 1971, the Petitioner was the Director-General of Evacuees of Bangladesh. On November 8, 1971, the Petitioner''s house was searched by the Duputy Inspector-General of Police, C.B.I., and others. On November 9, 1971, the Petitioner''s wife''s locker at the Central Bank was also opened. On November 16, 1971, the Chief Secretary to the State of West Bengal asked the Petitioner to fill up certain pro forma. On November 22, 1971, the Petitioner asked for the papers seized by the Police. On December 21, 1971, the Chief Secretary forwarded a letter of the Deputy Inspector-General of Police to the Petitioner calling for the tour programme from 1969 to October 1971. The Petitioner wanted to know about the alleged charge against him and wanted to know the particulars thereof, but! no such charge was given to the Petitioner, in the meantime, on May 27, 1972, a paper of the Ruling Party, Janabani, published a news regarding the Petitioner''s suspension. The Petitioner moved the High Court on June 1, 1972, and Rule was issued on the Respondent by the Court which was returnable on June 8, 1972. On June 8, 1972, the Petitioner went to office and received the impugned order dated June 7, 1972, by which the Petitioner was suspended. The Petitioner moved the High Court on June 8, 1972, for a Rule and obtained the Rule on the same date. The copy of the impugned order is annex. M to the main Rule which is as follows:

Dated Calcutta the 7th June, 1972 Whereas an investigation relating to a criminal charge is pending against you Shri B. B. Mondal, I.A.S., Additional " Member, Board of Revenue, West Bengal, in respect of your conduct while you were employed as Refugee Rehabilitation Commissioner and Ex-officio Secretary, Refugee Relief & Rehabilitation Department, and whereas it is considered necessary that you should be placed under suspension.

Now, therefore, in exercise of the power conferred by Sub-rule (3) of Rule 3 of the All-India Services (Discipline and Appeal) Rules, 1969, the Governor is pleased hereby to place you Shri B. B. Mondal I.A.S., Additional Member, Board of Revenue, West Bengal, under suspension with effect from the date of service of this order upon you and until the termination of all proceedings relating to that charge under investigation.

By order of the Governor, Sd. N. C. Sen Gupta Chief Secretary to the Government of West Bengal 2. On behalf of the Respondents Nos. 1 and 2 affidavit has been sworn in by the Chief Secretary to the Government of West Bengal and on behalf of the Respondents Nos. 3 and 4 the affidavit has been ,''sworn in by Sri Samit Kumar Dutt, Superintendent of Police, Delhi Special Police Establishment, Central Bureau of Investigation in Calcutta. On behalf of the State Government it ''was stated in the affidavit that upon receiving a complaint in writing on September 27, 1971, made to the Governor of West Bengal relating to malpractices committed by proprietors of some firms and some officers of the Refugee Relief and Rehabilitation Department and the Irrigation and Waterways Department of the Government of West Bengal in connection with the purchase of tarpaulin for incoming refugees of Bangladesh during 1971 ; it was suspected that offences under Sections 120B/420 of the Indian Penal Code arid P Also u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947, were committed. The Petitioner was during that period the Commissioner of the Refugee Relief and Rehabilitation Department of the Government of West Bengal. It is stated that the Governor of West Bengal directed that an investigation into the said matter be made by the Delhi Special Police Establishment, Calcutta Branch. A first information report was lodged with the Delhi Special Police Establishment, Calcutta Branch, which was recorded u/s 154 of the Code of Criminal Procedure by the Deputy Superintendent of Police of the said Delhi Special Police Establishment. An investigation by the said authorities under chap. XIV of the Code of Criminal Procedure with regard to the said charges is in progress. The said Police authorities submitted two progress reports to the Government of West Bengal. The examination of the second report submitted by the said Police authorities revealed certain facts against the Petitioner Sri B.B. Mondal. The Government of West Bengal had carefully considered the said matter and was of the opinion that the charge against the Petitioner was in connection with his position as a Government servant and that it would not be proper to allow him to carry on his normal duties until the termination of all proceedings relating to the charges under investigation. On consideration of the said matter, the Chief Minister, West Bengal, on June 3, 1972, took a decision that the Petitioner should be suspended and the order of suspension was made on June 7, 1972, in bona fide exercise of powers conferred under Sub-rule (3) of Rule 3 of the All-India Services (Discipline and Appeal) Rules, 1969. In course of investigation, the S.P.E. conducted search of the Petitioner''s house as well as the locker of the Petitioner''s wife. It is stated that the State Government considered it accessory that the Petitioner should be suspended pending the investigation relating to the criminal charge.

In the affidavit filed by the Respondents Nos. 3 and 4 it has been stated that the Police investigation was started on the basis of a complaint made by respectable citizen to the Government of West Bengal. The said complaint was forwarded by the Chief Secretary to the Government of West Bengal to the . Delhi Special Police Establishment at Calcutta and thereupon the said Police Establishment at Calcutta initiated a Police investigation after recording first information report according to law and registering an investigation case. It is stated therein that, at present, no judicial or quasi-judicial proceeding is pending in any Court or before any authority against the Petitioner. The Police authorities are still making investigation into cognisable offences. It is submitted that the investigation cannot be interfered with by this Court. It is further stated that the investigation is not mala fide but is in due process of law. On these pleadings the Petitioner came to trial. Before I refer to the argument advanced by the parties it is convenient for me to set out Rule 3 of the All-India Services (Discipline and Appeal) Rules, 1969: 3. Suspension during disciplinary proceedings: (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.

(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 in respect of or against whom an investigation, inquiry or trial relating to 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 all proceedings relating to that charge, 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.

(4) A member of the Service shall be deemed to have been placed under suspension with effect from the date of conviction of, in the event of conviction for a criminal offence, he is not forthwith dismissed or removed or compulsorily retired consequent on such conviction provided that the conviction carries a sentence of imprisonment exceeding forty-eight hours.

(5) Where a penalty of dismissal, removal or compulsory retirement from Service imposed upon a member of the Service under suspension 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, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

(6) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the Service is set aside or declared or rendered void in consequence of or by a decision of a Court of -law, and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of the Service shall be deemed to have been placed under suspension by the Central Government from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.

(7) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.

(b) Where a member of the Service is 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 member of the Service shall continue to be under suspension with the termination of all or any of such proceedings.

(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order

Mr. Noni Coornar Chakravarti appearing for the Petitioner contended that no order of suspension of a member of the All-India Administrative Service can be made except during the pendency of a disciplinary proceeding and there cannot be any order of suspension in contemplation of any disciplinary proceeding. Before an order of suspension is made the Government must be satisfied that there is a prima facie charge against the Petitioner for suspension. Unless a prima facie case is made out, no order of suspension can be made in contemplation of a disciplinary proceeding. Mr. Chakravarti argued that without initiation of a disciplinary proceeding under Rule 3(1), that is, without issuance of a charge-sheet, there cannot be any disciplinary proceeding and no suspension order can be made unless disciplinary proceeding is initiated by issuance of a charge-sheet. The second branch of argument of Mr. Chakravarti is that the power exercised is a power under Rule''3(1) read with Rule 3(3) of the All-India Service Rules, 1969, as the order states that the order of suspension, is being made ''whereas it is considered necessary'', ''necessary'' is the exact word which is found in Rule 3(1) of the Rules while under Rule 3(3) the word ''necessary'' is not to be found at all. It is argued by Mr. Chakravarti that from the affidavit of S.P.E- it will be found that no case is pending against the Petitioner and, as such, the order of suspension cannot be made. Mr. Chakravarti further argued that the meaning of the word ''charge'' must be read as the criminal charge as in the Code of Criminal Procedure so that, if a complaint is made against a person who is entitled to know its nature at the very earliest stage, the accused may defend himself. Reading the charge in that way, unless a criminal proceeding is pending, no suspension order can be made. Mr. Chakravarti contended that the investigation is mala fide, Mr. Chakravarti further contended that Rule 3(1) & (3) must be read together and reading together it is contended that unless a judicial proceeding is pending and a. charge is framed under the Code of Criminal Procedure no order of suspension can be made. The order of suspension under Rule 3 is also a matter for disciplinary proceeding and, unless there is a specific charge against the Petitioner, no suspension order can be passed.

Mr. Advocate-General on behalf of the Respondent contended that an investigation was pending before the Superintendent of Police, Delhi Special Police Establishment, and as such, the matter was considered by the Chief Minister and who was of the opinion that the Petitioner should be suspended till the termination of all proceedings relating to the charges pending investigation. It is argued that under Rule 3(3) of the Rules the State Government has a right to do the same. Mr. Advocate-General contended that the criminal charge in Rule 3(3) means accusation or allegation having committed an offence. It has not the same meaning as charge is known to have under the Code of Criminal Procedure. It is argued that the State Government has not initiated any departmental proceeding under Rule 3(1) of the. All-India Services (Discipline and Appeal) Rules, 1969. A complaint was made by the ''respectable citizen'' which was forwarded to the Special Police Establishment unit for investigation. The complaint was recorded u/s 154 of the Code of Criminal Procedure and reports about the progress of investigation were sent to the Respondent and, on perusal thereof, the Petitioner was suspended pending investigation. It is argued that the criminal charge under Rule 3(3) does not mean charge framed by the Court. It is argued by Mr. Advocate-General that no departmental proceeding has been initiated by the State Government at all and the question of issuing a charge-sheet does not therefore arise.

The first contention of Mr. Chakravarti is that, in respect of an Indian Administrative Service Officer, no order of suspension can be made except during the pendency of a disciplinary proceeding, and there can be no order of suspension in contemplation of any disciplinary proceeding and that before the suspension order is made there must be an initiation of departmental proceeding. In support of his contention Mr. Ghakravarti strongly relied upon the case of P.R. Nayak Vs. Union of India (UOI), . The fact of the case was that the Appellant joined the Indian Civil Service after being selected pursuant to his success at the competitive examination held in London in 1934. The Appellant was appointed as the Managing Director of the Indian Refineries Ltd. There was allegation against Mr. Nayak and the Government contemplated the disciplinary proceeding against him and Mr. Nayak was placed under suspension in contemplation of the disciplinary proceeding. The Appellant Mr. Nayak challenged the order of suspension in contemplation of the disciplinary proceeding. The Supreme Court held in favour of Mr. Nayak. Number'' of points were argued but the second contention of Mr. Nayak succeeded before the Supreme Court. The contention which succeeded is in para. 13 of the judgment which is as follows:

The next argument pressed before us on behalf of the Appellant was that under Rule 3 of the All-India Services (D & A) Rules, 1969, the Appellant could be placed under suspension only after disciplinary proceedings with respect to'' a definite charge or charges against him were actually initiated or started, and not merely when they were in contemplation as the impugned order of the President dated March 23, 1971, expressly purports to do. Reference to Takru Commission, according to this argument, could by no means be considered to be the initiation or commencement of disciplinary proceedings. The language of Rule 3, according to the learned Counsel, is clear and unambiguous and it is not permissible on plain reading of Sub-rule (1) to order the Appellant''s suspension merely because there are some accusations or imputations against him which call for an enquiry in the guise of interpretation. Courts cannot rewrite a rule to accord with their view of what it should be. The order of suspension dated March 23, 1971, argued the counsel, . must, therefore, be held to be illegal and liable to be quashed.

The decision on the said contention is to be found in para. 15 of the Supreme Court judgment which is as follows:

In our view, the second. contention possesses merit and deserves to be upheld. In case we uphold this contention, it would be unnecessary for us t8 express any considered opinion either way on the other contentions. Rule 3 of the All-India Services. (D. & A.) Rules, 1969, which has already been set out in extenso, provides for suspension during disciplinary proceedings. Sub-rule (1) of this Rule on its plain reading empowers the Government, which initiates disciplinary proceedings, on being satisfied, having regard to the nature of the charges and the circumstances, of the necessity or desirability of placing under suspension, the member of the Service against whom such proceedings are started, to pass an order placing him under suspension or if he is serving under another Government to request that Government to suspend him. (emphasis supplied). It does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. The language used in Sub-rules (4) to (7) also suggests that these Rules do not authorise order of suspension of the delinquent member of the Service merely because disciplinary proceedings against him are contemplated. Suspension under those Sub-rules may be ordered only either after conviction (deeming provision under Sub-rule (4) or when criminal proceedings are actually in progress (Sub-rule 5) or when .after the penalty imposed on him haying been set aside the disciplinary authority decides to hold further enquiry (deeming provision under Sub-rule 6). Clause (b) of Sub-rule (7) similarly provides for continuation of order of suspension, if any other disciplinary proceeding is commenced against the delinquent member of the Service, during the continuance of the earlier suspension--actual or deemed. The legislative scheme underlying Rule 3 is thus clearly indicative of the intention of the rulemaking authority to restrict its operation only to those cases, in which the Government concerned is possessed of sufficient material, whether after preliminary investigation or otherwise, and the disciplinary proceedings have in fact commenced and not merely when they are contemplated. An order of suspension before the actual initiation or commencement of disciplinary proceedings appears to us, therefore, to be clearly outside the ambit of Rule 3 and we find no cogent ground for straining the plain language of Rule 3(1) so as to extend it to cases in which disciplinary proceedings are merely contemplated and not actually initiated or commenced. It is no doubt true that this Court (G.K. Mitter and A.N. Ray JJ.) has in The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, , expressed the view that under Rule 7(1) of the All-India Seryices (D & A) Rules, 1955, (replaced in 1969 by Rule 3(1) with which we are concerned) the Government is entitled to place an officer under suspension even before definite charges are communicated to him when preliminary investigation has been made into his conduct following allegations of corrupt or malpractice levelled against him''. In support of this view, reliance in that decision was placed on Govinda Menon Vs. Union of India (UOI), , an earlier decision by a Bench of two Judges. After referring to the facts and the decision in S. Govinda Menon''s case (supra) it was observed in the case of Tarak Nath Ghosh''s case (supra) as follows:

It was urged before us that the order of suspension there was different from the one before us. While there is no doubt that the order against the Appellant in the above case was far more detailed both with regard to the nature of the charges and to the necessity of placing him under suspension, in substance there is little difference for the purpose of Rule 7 of the Service Rules. The order in this case dated 31st July, 1964, shows that serious allegations of corruption and malpractices had been made against the Respondent and he was also reported to have contravened the provisions of the All-India Services Conduct Rules and enquiries made by the Government'' of Bihar into the allegations had revealed that there was a prima facie case made out against him. . Merely because the order mentioned that disciplinary proceedings were contemplated against the Respondent, as compared to Rule 7 which contains phrases like ''the initiation of disciplinary proceedings'' and the ''starting of such proceedings'' we cannot hold that the situation in the present case had not reached a stage which called for an order of suspension. In substance, disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him for the framing of charges. When the order of suspension itself shows that Government was of the view that such a prima facie case of departmental proceedings has been made out the fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rules of service an order of suspension may be made when ''disciplinary proceedings were contemplated'' should not lead us to take the view that a member of an All-India Service should be dealt with differently. The reputation of an officer is equally valuable no matter whether he belongs to the All-India -Services or to one of the humble cadre. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference in regard to this matter as between a member of an All-India Service and a member of a State Service or a Railway Service.

Reading the said argument and the decision of the Supreme Court it is clear that the Supreme Court head that an order of suspension before the actual initiation of disciplinary proceeding is clearly outside the ambit of Rule 3 and their Lordships do not find any cogent ground for sustaining the plain language of Rule 3(1) so as to extend it to cases in, which disciplinary proceedings are merely contemplated and not actually initiated or commenced. The Supreme Court held that the case of The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, is wrongly decided. Be that as if may, the result of Mr. Nayak''s case (supra) is that no order of suspension of the member of Indian Administrative Service can .be made unless disciplinary proceeding is actually commenced or started and not otherwise. There cannot be any order of suspension in contemplation of starting a disciplinary proceeding. On the basis of this judgment Mr. Chakravarti contended that in Rule 3(3) also, unless a disciplinary proceeding is started and unless the Petitioner is made known of the charges against the Petitioner, the order of suspension cannot be made. Mr. Chakravarti relied upon the case of R.P. Kapur Vs. Union of India (UOI) and Another, and argued that the suspension pending investigation of criminal charges related to the disciplinary matters, and on that basis Mr. Chakravarti argued that under Rule 3(3) the order of suspension related to the disciplinary, matters and, therefore, unless disciplinary proceeding is initiated under Rule 3(1), no order of suspension can be made. In the said case it appears that the Supreme Court was considering the scope of the words ''disciplinary matters'' contained in Article 314 of the Constitution and held that the words "disciplinary matters'' under Article 314 must be given their widest meaning consistent with what disciplinary matters may reasonably include suspension. The suspension is of two kinds, namely, as a punishment, or as an interim measure pending a departmental enquiry or pending a criminal proceeding. Both these kinds of suspensions must be comprised within the words ''disciplinary matters'' as used in Article 314. The Supreme Court set aside the order of suspension because the same was passed by the Governor and not by the Secretary of the State or the Governor-General in Council in absence of the Secretary of State. The judgment only says who is an authority and the meaning to be given to the words ''disciplinary matters'' as contained in the said Article. It has been held that the ''disciplinary matters'' include the order of suspension pending disciplinary enquiry or pending criminal charges. The Supreme Court decided who was competent to pass an order of suspension on an Indian Civil Service personnel and held that under Article 314 of the Constitution this power is only given to the Governor-General in Council. This power is given to the Government of India or otherwise it is the President who can pass the" order of suspension and not the Governor and the power of suspension exercised by the Governor was struck down. In my opinion, this case does not support the broad contention put forward by Mr. Chakravarti. The case of P. R. Nayak (Supra ), as I have already said, makes it clear that, in contemplation of a departmental proceeding no order of suspension can be made. Mr. Ghakravarti relied upon the case of Govinda Menon Vs. Union of India (UOI), of the said judgment. The said . paragraphs are as follows:

The next question to be considered is whether the disciplinary proceedings against the Appellant were validly instituted as required by Rule 4(l)(b) of the Rules. It was submitted by the Appellant that there was no formal order of the Government for instituting these proceedings. For the Respondents it was contended that the question was barred by res judicata by reason of the decision of the Kerala High Court in S. Govinda Menon v. Stale of Kerala, (1963) Ker.L.T. 1162. In that case, the order of suspension was challenged by the Appellant by a writ petition in O.P. No. 485 of 1963 which was dismissed by Vaidialingam J. Against that decision the Appellant preferred an appeal which was dismissed by the Division Bench. It was . contended by the Appellant that the only issue considered in - that case was whether the Appellant could be suspended before the charges were framed and the rule of res judicata was not applicable. We shall assume in favour of the Appellant that the question is not barred by res judicata. Even so, we are of the opinion that there is no substance in the contention of the Appellant that there was no valid institution of the disciplinary proceedings under Rule 4(1). A perusal of the order of the Government, Exhibit P-l, would itself indicate that disciplinary proceedings had been initiated against the Appellant. . Exhibit P-l reads as follows:

The Government have received several petitions containing serious allegations of official misconduct against Shri S. Govinda Menon, I.A.S., First Member, Board of Revenue, and formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquiries caused to be conducted - into the allegations have shown, prima facie, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. The Kerala High Court had also occasion to comment on the conduct of the officer in their judgment in O.P. No. 2306/62 delivered on 12th February,-1963. The judgment begins with the observation that "this case, if it has served little else, has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Sree Pulpally Devaswom of which I trust due notice will be taken by the competent authority in the interests of the public administration and preservation of our forest wealth no less than in the interests of this particular institution.

The judgment in the above case and the preliminary report of the X-Branch Police have disclosed the following-grave charges of the serious irregularity and official misconduct on the part of the accused officer.

The detailed enquiry into the charges by the X Branch is in progress. 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 interest of the proper conduct of the enquiry it is necessary that the Officer should not be allowed to continue hi that post. Having 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.

A perusal of this document shows that the Government had accepted the proceedings taken in the matter until that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under Rule 4(1) of the Rules and the order of the State Government under Ex. P-l must be deemed to be an order under Rule 4(1) of the Rules initiating disciplinary proceedings.

It was lastly submitted that the order of suspension of the Appellant, dated March 8, 1963, is not in compliance with Rule 7 of the Rules which states:

Suspension during disciplinary proceedings--(i) 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....

It was pointed out that definite charges were framed, on June 6, 1963, and the Government had no authority to suspend the Appellant before the date of framing charges. Reference was made to Rule 5(2) which states:

5(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 it is proposed to take into consideration in passing orders on the case.

It ..was argued by the Appellant that the word ''charge'' which occurs in Rule 5(2) and Rule 7 should be given the same meaning and no order of suspension could be passed under Rule 7 before the charges are, framed under Rule 5(2) against the Appellant. We do not think there is any substance in this argument. Rule 5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under Rule 5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under Rule 5(2) is necessary to enable the member of Service to meet the case against him. The language of Rule 7(1) is, however, different and that Rule provides that the Government may'' place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in Rule 5(2) and Rule 7 we are of the opinion that the word ''charges'' in Rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We, accordingly, reject the argument of the Appellant on this aspect of the case.

Mr. Chakravarti contended that it would be clear from the said judgment that suspension order cannot be made in contemplation of a disciplinary proceeding. The Supreme Court held in that case that in the facts of the case there was no formal order necessary to initiate disciplinary proceeding under Rule 4(1) of the Rules and the order of the State Government under Ex.T''-l must be deemed to be an order under Rule 4(1) of the Rules initiating disciplinary proceedings. If the order of suspension in the present case is an order of suspension pending initiation of disciplinary proceeding, the order cannot be sustained; and if the order of suspension is in contemplation'' of a criminal investigation, then the order cannot be sustained. The principle laid down by the Supreme Court upto date is that ''in contemplation'' of any disciplinary proceeding, no order of suspension can be made.. While discussing the proposition of Rule 3 the Supreme Court considered from that angle and when the Supreme Court referred to sub-s. (5),. (6) and (7) of Rule 3 they arc only considering whether an order of suspension can be made in ''contemplation'' of any disciplinary proceeding or criminal investigation or proceeding. The Supreme Court has laid down in para. 14 of the judgment of P. R. Nayak''s case (Supra ) recording the contention and with reference to other provision of Rule 3 that order of suspension can be made pending disciplinary proceedings. The Supreme Court further held that no order of suspension can be made in contemplation of a disciplinary proceeding and the emphasis is that the disciplinary proceeding has to be commenced or criminal investigation or proceedings are actually in progress when the suspension order pending disciplinary proceeding or criminal investigation can be passed. The Supreme Court held that the legislative scheme underlying r. 3 is thus clearly indicative of the intention of the rule-making authority to restrict its operation only to those cases in which the Government concerned is possessed of sufficient material whether after preliminary investigation or otherwise and the disciplinary proceedings have in fact commenced and not merely when they are contemplated. Applying the said principle in the facts of the case it will be clear that under Rule 3(3) the Government the disciplinary authority has no power to direct a suspension ''in contemplation'' ''of an investigation, inquiry or trial relating , to a criminal charge or, in other words, unless an investigation, inquiry or trial relating to a criminal charge is pending no order of suspension can be made. In my opinion, if it is found that an investigation is pending, the order of suspension under Rule 3(3) can be made on the satisfaction of the competent authority. In the facts of the present case, there is no doubt that investigation is pending on the basis of a complaint made by a citizen to the S.P. of the S.P.E. and that from the affidavit of the S.P. a case has been recorded u/s 154 of the Code of Criminal Procedure and the investigation is in progress.

Mr. Chakravarti contended that Rule 3(1) & (3) must be read together, inasmuch as, in the order of suspension it is stated that the Government considered it necessary. The words ''considered necessary'' is to be found in Rule 3(1) of the Rules. Therefore, the order was passed under Rule 3(1) & (3) read together. In my opinion, that is not proper interpretation of the said words. It is clear from the order that, investigation relating to a criminal charge is pending against the Petitioner and that the Government considered it necessary to place the Petitioner under suspension, and that he was placed under suspension until the termination of all proceedings relating to that charge under investigation. In that circumstance, therefore, in my opinion, the identical words as ''considered necessary'' cannot be construed as the order was made under Rule 3(1), more so when the order states that the investigation relating to the criminal charges is pending and the suspension will continue till the termination of proceedings relating to the said charges under investigation. The identical words have been used in the impugned .order, as contained in Rule 3(1) & (3), but it does not make the order as if under Rule 3(1) while in the order itself rules quoted clearly show that the order is made under Rule 3(3) of the Rules. The next point argued by Mr. Chakravarti is that the word ''charge'' ''in Rule 3(3) means a criminal charge as used in the Code of Criminal Procedure.

In order to appreciate the arguments, advanced, it is necessary for me to refer to the definition of ''investigation'', ''inquiry'', ''trial'' and meaning of ''charge'' under the Code of Criminal Procedure. The said definitions are as follows:

Investigation. ''Investigation'' includes all the proceedings under this Code for the collection of evidence conducted by a Police "officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Inquiry, Inquiry'' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.

Trial. ''Trial'' means the proceedings taken in Court after a charge has been drawn up and includes the punishment of the offender.

Charge, ''Charge'' includes any head of charge when the charge contains more heads than one.

Insofar as the power of investigation is concerned, it is contained in chap. XIV of the Code of Criminal Procedure. If any information is received relating to the commission of a cognizable offence, the Officer-in-charge of a Police Station may investigate into the said information. ''Investigation'' is defined--''investigation'' includes all the proceedings under this Code for the collection of evidence conducted by a Police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. Investigation ends with the collection of evidences by the Police officer or any other person so authorised and after the report is given u/s 157 of the Code of Criminal Procedure. I am not referring to any other provisions of the statute regarding the investigation as those are not necessary for the purpose of our case.

Mr. Chakravarti contended that ''charge'' has been defined in Section 4(1)(c) of the Code of Criminal Procedure. ''Charge'' has not been defined but the judicial decision has given a definition to the word ''charge'' as used in the Code of Criminal Procedure in Reily v. The King Emperor IX.R. (1901) 28 Cal. 434 that the word ''charge'' is said to be a precise formulation of a specific accusation made against a person who is entitled to know its nature at the very earliest stage. Mr. Chakravarti further relied on a case (1888) 21 QB.D. 109 (1W) where is Lordship held that the ''charge'' is a solemn act of calling before a Magistrate and stating the accusation so that they may be defended. Mr. Chakravarti relied upon Section 221 of the Code of Criminal Procedure wherein it is stated that every charge under, this Code shall state the offence with which the accused is charged. He further referred to Section 207(A), 251A(3) and 254, Code of Criminal Procedure, which deal with the charge in warrant cases and Section 242 which deals with the summons cases. Mr. Chakravarti contended that the offence and the charge are not synonymous and in the present case no charge has yet been given and, as such, the order of suspension is without jurisdiction. Mr. Chakravarti further contended that there cannot be any investigation into the charges but only investigation for cognizable offence. Mr. Chakravarti contended on this branch that the word ''charge'' a& appears in Rule 3(3) means an. imposition or imputation or accusation or allegation of having committed an offence. ''Charge'' has not been defined in the Code of Criminal Procedure, but there cannot be any trial or inquiry before the investigation is completed and, after the inquiry and trial commenced, there cannot be any investigation into any charges.

Mr. Advocate-General contended that there could not be any charge-sheet in the matter of any summons cases but still in summons cases charges are made. In is argued that the charge in the case means accusation.

It appears that under, Rule 3(3) a member of the Service in respect of or against whom an investigation, inquiry or trial relating to a criminal charge is pending, may be suspended until the termination of all, proceedings relating to that charge. Insofar as Rule 3(3) is concerned, it does not mean of the same nature as ''charge'' is used in the Code of Criminal Procedure. ''Charge'' here, in my opinion, means accusation or imputation which is a nature of crime. Giving that meaning, in my opinion, there is no difficulty in reading the words ''investigation'', ''inquiry'' or ''trial''. At the trial of a criminal case ''charge'' has a definite meaning. In the present case, there is no doubt that there was a first information report and on that basis of the first information report investigation is pending. Investigation as defined in the Code of Criminal Procedure includes all the proceedings under the Code for the collection of evidence. At the investigation stage there cannot be any inquiry or trial. ''Inquiry'' has been defined as that ''inquiry'' includes every inquiry other than a trial. The ''inquiry'' or ''trial'' is to be found in pt. VI of the Code of. Criminal Procedure which is proceeding in prosecution. ''Inquiry'' is not a trial. Therefore, ''inquiry'' and ''trial'' in the criminal case cannot go hand in hand at the same time. ''Investigation'' "is a stage before either enquiry or trial has commenced. -

If Mr. Chakravarti''s contention is correct, then no meaning can be given to the word ''investigation'' appearing in Rule 3(3) of the rules. In, my opinion, the word ''charge'' in Rule 3(3) means to impute blame or guilt (Webster''s- Dictionary) or accusation and accused him of (Oxford Dictionary). The criminal charge in Rule 3(3) means accusation, of a criminal nature. The criminal charge, in my opinion, in the context of Rule 3(3) of the Service Rules, does not mean ''charge'' as framed by the Code of Criminal Procedure. In the facts of this case it is admitted that there was no judicial proceeding pending at the present moment. A complaint was made to the S.P.E. by a citizen which was recorded u/s 154 of the Code of Criminal Procedure and investigation is proceeding on the basis of the said complaint in respect of the ''charges'' relating to the criminal offences. In that view of the matter it cannot be said that unless a charge-sheet is issued no suspension order can be made. In my opinion, therefore, Mr. Chakravarti is not correct in his submission that unless a criminal proceeding is pending, that is, inquiry or trial is pending, no suspension order can be made. Mr. Chakravarti next argues that the word ''investigation'' is not at all redundant if Rule 3(3) is read along with Rule 3(1) of the Rules, that is, if suspension order is made with regard to the nature of charge, that is, investigation into the nature of charge is made which may be of a criminal nature. In that case, suspension can only be directed when the order with disciplinary proceeding is drawn up against the Petitioner and there cannot be any suspension order before the pendency of such disciplinary proceeding. In my opinion, that is not the correct way of reading Rule 3(3) of the Rules.

Mr. Chakravarti next argues that the investigation is mala fide The allegation of mala fide is to be found in paras. 19, 19A and 24 of the petition. The Respondent has denied the allegation of mala fide and the Police officer has definitely stated in the affidavit that the complaint was made to the Police and the case has been recorded u/s 154 of the Code of Criminal Procedure and investigation is continuing. It is further stated that the complaint contained very serious allegation of corrupt practices involving the Petitioner and that in the said complaint it appears that the Petitioner is mainly responsible or liable for the corrupt practices. In my opinion, the fact, as it stands to-day, it cannot be said that the Respondents acted mala fide,. Mr. Chakravarti further contended, in course of argument, that the S.P.E. forwarded the reports of the investigation to the State Government which is unknown to law. This point is not taken in this petition and, therefore, the petitioner cannot argue the point at all. As regards mala fide, however, it appears that there is nothing wrong in giving the report to the State Government, because in order to prosecute, if at all, a Government servant, on the allegation of corruption, it is necessary to have sanction of the authorities concerned under the Prevention of Corruption Act unless, however, such report is sent to the State Government for approval, no such sanction can be given. The complaint was made to the State Government which was sent to the Delhi Special Police Establishment for investigation and I do not find any difficulty or illegality in asking for an information regarding the investigation by the person who has forwarded the complaint against an officer of the State Government.

In the. circumstances, all the points argued by Mr. Chakravarti must fail.

The Rule is discharged. There will be no order as to costs.