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M. Karpagavinayagam, J.—Mr. M.N. Bapat, the accused in C.C. No. 25 of 1994 on the file of the VI Additional Special Judge, City Civil and Sessions Court, Chennai, is the petitioner herein. The above case was filed against him for an offence under S. 13(2) read with of the Prevention of Corruption Act, 1988. He filed an application in Cr. M.P. No. 2028/96 under S. 197(1)(a) of the Criminal Procedure Code, 1973 in the above case, pleading for his discharge dropping all further actions in the above case, mainly on the ground that the case was filed without obtaining the pre-requisite statutory sanction prescribed under S. 197(1) Cr.P.C. After hearing the parties, the learned Special Judge dismissed the application by his order dated 12.7.96. Hence this revision.
The few facts which are relevant for the disposal of this Revision, are summarised as follows:
(a) The petitioner was working as Deputy Director of Enforcement, Enforcement Directorate, Shastri Bhavan, Madras-6 from 2.3.87 to 5.9.90.
b) On 31.7.90, the Deputy Superintendent of Police (CBI), the respondent, registered the F.I.R. in R.C. No. 41(A)/90 against him for an offence under S. 13(2) read with 13(l)(e) of the Prevention of Corruption Act, 1988.
c) In the course of investigation, by the order dated 5.9.90 passed by the authority, he was placed under suspension.
(d) On attaining the superannuation, he got retired from service with effect from 31.10.92.
(e) After the investigation, the investigating agency, on 23.11.94, filed the charge sheet against the petitioner for the aforesaid offence. In the charge S. 13(1)(e) sheet, it was stated that since the accused was retired from service, no sanction is required from the Department. Based on this averment, the Special Court took cognizance of the matter even without the sanction.
(f) After supply of copies of the charge sheet along with other documents, the Special Judge on 11.9.95 framed charge in the following words:
That you, being a public servant employed as Dy. Director, Enforcement Directorate, Madras during the period between 1.7.76 and 8.7.90 acquired assets which were disproportionate to your known sources of income and on or about the 8th day of July 1990 you had been in possession of pecuniary resources or property in your name and in the names of your family members to the extent of Rs. 20,41,4901-19 which you cannot satisfactorily account for and thereby committed an offences U/s. 13(1)(e) of the Prevention of Corruption Act, punishable U/s. 13(2) of the said Act and within my cognizance.
On the charge being read over to him, the petitioner pleaded not guilty to the charge and the same was recorded by the Special Judge. Thereafter, the case was posted for commencement of examination of witnesses on 11.9.95.
The petitioner, without allowing the trial to go on, proceeded to file a petition for discharge under S. 197(1)(a) Cr.P.C. The learned Public Prosecutor appearing for the C.B.I, filed a counter pointing out that the ground urged in the application for discharge was not tenable. On hearing the counsel for both parties and after perusal of the petition, counter and other documents, the learned Special Judge dismissed the petition on the following two grounds:
(i) The petition to discharge is not maintainable in a warrant case after the charge has been framed under S. 240; Cr.P.C. The only provision for discharge is under S. 239 Cr.P.C. The said opportunity has not been availed of by the accused. Therefore, after allowing the court to invoke S. 240 Cr.P.C, the trial court cannot be asked to go back to S. 239 Cr.P.C.
(ii) The sanction under S. 197(1) Cr.P.C. is not necessary in view of the fact that the offence only relates to the penal sections of the Prevention of Corruption Act and not under any of the Sections under the Indian Penal Code. It is not disputed that, since on the date of cognizance, the petitioner ceased to be a public servant as he got retired earlier, no sanction was required under S. 19 of the Prevention of Corruption Act even for the offences under the Prevention of Corruption Act.
This order is challenged in this Revision before this Court. Before going into the grounds urged in this Revision, I shall first refer to the prayer made in this Revision, which is as follows :
Petitioner, therefore, prays that his Hon''ble Court may be pleased to call for the records in Crl. M.P. No. 2028/96 in C.C. No. 25/94 on the file of the Court of the VI Additional Sessions (Special) Judge, Madras to set aside the same and direct that all further proceedings against the petitioner are dropped.
By virtue of this prayer, the petitioner is seeking to set aside the order made in Crl. M.P. No. 2028/96 dated 12.7.96, as the same is incorrect, illegal, improper and unsustainable in law.
The main ground on which the petition for discharge was filed in Crl. M.P. No. 2028/96 by the petitioner before the Special Judge is this.
"The complainant failed to obtain sanction of the Central Government as envisaged under S. 197(1)(a) Cr.P.C, protecting a person from prosecution who was a public servant, not removable from his office save by or with the sanction of the Central Government, as the petitioner is stated to have committed the offence while he was employed as Deputy Director, Enforcement Directorate, Madras. Since it has now been laid down by the case law that this protection for prosecution under the Prevention of Corruption Act will not be available to the public servant once he retired from service or ceased to be a public servant and that the petitioner had retired from service on 31.10.92, and the charge sheet has been filed on 2111.94, the petitioner cannot claim that protection in the form of sanction under the Corruption Act. However, the previous sanction under S. 197 Cr.P.C. would be applicable and available to the petitioner even after he was allowed to retire from service, as the Section contains "whether he is in service or has retired from service". In the absence of sanction under S. 197 Cr.P.C, which is a prerequisite to take cognizance, the entire proceeding is vitiated.
The petitioner made a prayer before the Special Judge thus
The petitioner/Accused therefore most humbly prays this Hon''ble Court, in the interest of justice, to discharge him and drop further action in the case as the case has been charge-sheeted by the Respondent without obtaining the pre-requisite statutory sanction prescribed under S. 197(1) Cr.P.C. 1973, as propounded by their Lordships of the Apex Court, mentioned in para 12, supra, which judgment has been reported in Law reports recently, holding that the case has been wrongly taken cognizance of without proper sanction and thus render justice.
The prayer in the petition for discharge and the reasons given in the impugned order passed by the Special Judge are being referred to in this context only in order to show that the main argument addressed before the Special Judge which invited the impugned order was only the absence of sanction under S. 197 Cr.P.C. But strangely, in this Revision challenging the impugned order, the petitioner has given up the said argument and advanced a new argument before this Court stating that the petitioner had not ceased to be a public servant and he is deemed to be still in service and so the sanction under S. 19 of the Prevention of Corruption Act is very much essential for taking cognizance and in the absence of the said sanction, the learned Special Judge ought to have allowed the application filed by the petitioner in Crl. M.P. No. 2028/96.
As correctly pointed out by the learned Public Prosecutor through his counter, the petitioner has never canvassed this position before the trial court, whereas he did not dispute the same.
When the impugned order is challenged, the petitioner is essentially to place the reasons before this Court as to how the trial Court is wrong in coming to the conclusion to reject the grounds raised in the petition. As indicated earlier, it was admitted in the petition by the petitioner himself that he could not raise any objection with reference to absence of sanction under the Prevention of Corruption Act since he ceased to be public servant from 31.10.92. The trial Court has stated that sanction under S. 197 Cr.P.C. is not necessary as the case has not been charge-sheeted for the offences under the Indian Penal Code. Without challenging this reason, the petitioner has now turned round to contend that he is still a public servant and as such sanction under the Prevention of Corruption Act is a pre-requisite for taking cognizance.
In this context, it must be pointed out the following three factors:
(i) Even when the charge-sheet was filed on 23.11.94, it was mentioned in the charge-sheet that no sanction was necessary for the offences under the Prevention of Corruption Act, since the accused had retired from service. Based on this averment, the Special Court took cognizance of the said offence. On service of summons, the petitioner appeared before the court and he has also not raised any objection with reference to the taking of cognizance in respect of the offence under the Prevention of Corruption Act without sanction.
(ii) After sufficient time was given to the petitioner, the learned Special Judge on 11.9.95 framed charge against the petitioner. Though he pleaded not guilty, he never raised any objection before the Special Judge with reference to the framing of charge without obtaining sanction under the Prevention of Corruption Act.
(iii) After lapse of a long time and just before the commencement of examination of witnesses, the petitioner filed an application for discharge on 28.3.96 on the ground that sanction under S. 197 Cr.P.C. was not obtained. Even in this petition, there was no objection raised with reference to the taking of cognizance without sanction under S. 19 of the Prevention of Corruption Act. As a matter of fact, in the said petition, it is specifically mentioned and admitted that he could not raise such objection, sine he ceased to be a public servant.
For the first time, under the garb of challenging the impugned order, which relates to some other grounds, the aforesaid new ground, i.e., absence of sanction under the Prevention of Corruption Act, has been raised before this Court. So, on the face of it, in my opinion, the Revision does not merit acceptance. I do not find any illegality on the reasonings given by the learned Special Judge, to dismiss the petition for discharge on the basis of the grounds urged by the respective parties.
14(a). However, Mr. Sandhanagopalan, the Learned Counsel for the petitioner, would submit that mere admission by the petitioner inadvertently made in the court would not become estoppel. A party''s opinion about the legal effect of facts is of no consequence in construing the section. No estoppel arises by reason of the admission of the party as to such effect. Admission wrongly made by the party would not be a ground to deny the statutory benefit as there is no estoppel against the statute. In support of this proposition, the counsel for the petitioner has cited the following decisions:
(1) Mahabir Singh Vs. Narain Tewari and Others
(2) Daungarshi v. M/s. Deviprasad Omprakash Bajoria (1985 Cri.L.J. 1943) ;
(3) Income Tax Officer Vs. Shambhoo Dayal Om Prakash and Co., Ferozabad and Others,
(4) Kalidas Dhanjibhai Vs. The State of Bombay,
(5) Bhagwant Rai and others Vs. State of Punjab and others,
(6) The State v. Chikkavenkatappa (A.I.R. 1965 Mys 253); and
(7) State of Bihar Vs. Simranjit Singh,
14(b). In view of this submission, on the strength of the citations referred to above, the counsel for the petitioner is allowed by this Court to raise a new ground, though the contra position was admitted in the discharge application filed before the Special Court.
The crux of the submission made by the counsel for the petitioner is as follows :
The petitioner was suspended on 5.9.90 by the order issued by the Ministry of Finance, Department of Revenue, in the name of the President of India, the appointing authority. By another order dated 23.10.90, it was provided that the petitioner is entitled to receive under F.R. 53(1)(II)(A) subsistence allowance, in addition to compensatory'' allowance from time to time and 15 that the payment would be subject to the provisions contained in F.R. 53(2). Under rule 10(5)(a) of the Central Civil Services (Classification, Control and Appeals) Rules, 1965, 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. Though F.R. 56(a) provides that a Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years, the provisions contained in F.R. 56(K)(1)(c) stipulates that it shall be open to the appropriate authority to withhold permission to a Government servant under suspension, who seeks to retire under this clause. Though the petitioner was to retire on attaining the superannuation on 31.10.92, since the suspension order was not revoked under rule 10(5)(a) of the C.C.S.(C.C.A.) Rules and no final orders were passed permitting the petitioner to retire from service by the competent authority, the petitioner has not actually retired from service, and as such, he continues to be under suspension and so he must be deemed to be continued in service. Consequently, when the charge-sheet was filed on 23.11.94, he did not cease to be a public servant. Therefore, the investigating agency must have obtained sanction for prosecuting the petitioner for the offences under the Prevention of Corruption Act under S. 19 of the said Act. Without the said sanction, the cognizance is invalid
Arguing contra, the learned Public Prosecutor would contend that the said argument was fallacious and untenable. The gist of his contention is as follows:
The petitioner himself admitted in the petition filed before the trial Court that he was allowed to retire from service of the department of Finance, Government of India, on attaining his superannuation with effect from 31.10.92. F.R. 56 deals with the retirement of the Government servant. It lays down that every government servant retires from service on the afternoon of the last day of the month in which he attains the age of 58 years. The petitioner himself sent letters dated 14.7.93 and 1.6.94 to the Pay and Accounts Office, accepting his retirement on 31.10.92 and requested the provisional pension to be fixed in view of the retirement Rule 69 of the. Central Civil Services Pension Rules deals with the provisional pension. This rule would authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of the qualifying service upto the date of retirement of the Government servant, if he is under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension. On accepting the request of the petitioner through the letters sent by him, orders have been passed to pay the provisional pension. In fact, the Department has intimated his retirement on superannuation authenticated by the Deputy Director, Enforcement Directorate, New Delhi through the letter dated 7.7.93 to the Ministry of Finance. On 1.6.93, a clarification has been issued by the Government of India, Ministry of Finance, stating that were need not be any separate order under the provisions of the F.R. for notifying me retirement of the officer on superannuation by the appointing authority. So, on the date of filing charge-sheet, he was not in service and there is no statutory requirement to obtain any sanction to prosecute him for the offences under the Prevention of Corruption Act. Hence, the new ground urged in the Revision is to be rejected.
Let me now consider the merits of the submissions made by either side. The emphatic assertion made by the counsel for the petitioner is that the petitioner, having been suspended by the order dated 5.9.90 issued by the Ministry of Finance, department of Revenue, New Delhi under Rule 10(1)(a) of the Central Civil Services (Classification, Control and Appeals), Rules, 1965, must be deemed to be continued in service, even though the petitioner attains superannuation on 31.10.92 since, no final orders were passed for retiring the petitioner by the competent authority. Under rule 10(5)(a) of the C.C.S. (C.C.A.) Rules, 1965 it is provided that the order of suspension made under the rule shall continue to be remain in force until it was modified or revoked and as per this rule, but there is no final order passed revoking the earlier suspension.
The reply with equal vehemence made by the learned Public Prosecutor is that under F.R. 56, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years and that there is nothing in the rule to suggest the order of suspension earlier made would place an embargo on the retirement on superannuation. He would also submit that rules 64 and 69 of the Pension Rules have been invoked by the Department for disbursement of provisional pension and that the Ministry of Finance sent a letter dated 1.6.93 to the Director of the Enforcement Directorate that the petitioner got retirement on superannuation and he did not require issue of notification under Rule 74 of the C.C.S.(Pension) Rules and that on 7.7.93, the Enforcement Directorate, Government of India intimated to the officer concerned including the Pay and Accounts Office that the petitioner had retired from Government service on superannuation with effect from 31.10.92. In short, his contention is that on the date of superannuation on attaining the age of 58 years, that is, on 31.10.92, the suspension order earlier passed on 5.9.90 would automatically get elapsed and as such, the petitioner ceased to be a public servant from that the onwards.
In the process of solving the tangle posed in this case, it becomes necessary to refer to some of the letter correspondence between the petitioner and the Department.
The date of retirement of the petitioner on superannuation is 31.10.1992. One day earlier to that, the petitioner sent a representation requesting sanction of provisional pension as provided under sub-rule (4) of Rule 9 read with Rule 69(a) of Central Civil Services Pension Rules, as he would be retiring on the afternoon of 31.10.92 on attaining the age of superannuation. This letter was received by the Department on 20.11.92. By the letter dated 3.12.92, the Deputy Director sent a letter along with the said representation dated 30.10.92 to the Director, Enforcement Directorate, New Delhi requesting for necessary instructions for the disbursement of the provisional pension on his retirement from service on superannuation on 31.10.92. By the order dated 15.4.93, a sanction order was issued by the Enforcement Directorate, Government of India for the drawal of the provisional pension by the petitioner under Rule 64 read with Rule 69 of the Central Civil Services Pension Rules, as he has retired on superannuation on 31.10.92. By another letter dated 16.4.93, the Enforcement Directorate directed the head office to issue necessary order to the Pay and Accounts Office to clear the bills after issuing an order intimating the retirement of the petitioner from service. On 1.6.93, the Ministry of Finance, Department of Revenue, Government of India sent a letter to the Enforcement Directorate, New Delhi that the retirement of an officer on Superannuation does not require the issue of orders under the provisions of Fundamental Rules and the issue of notifications under Rule 74 of C.C.S.(Pension) Rules is aimed at notifying the date of retirement to the concerned Pay and Accounts Officer and does not require that only the appointing authority should issue the same. It is also stated in the said letter that the notification of retirement has to be made on the basis of personal records which a Head Office normally maintains and that the said Notifications are issued by the concerned authorities in the Field Formations. On 7.7.93, the Enforcement Directorate, Government of India issued an Office order intimating the officer concerned that the petitioner got retired from service on superannuation with effect from 31.10.92. On 14.7.93, the petitioner sent a letter to the Pay and Accounts Officer enclosing the copy of the letter from the Deputy Director addressed to the Director certifying that the petitioner had retired from Government service on superannuation with effect from 31.10.92 and requested the Department to pass leave encashment bill and the provisional pension. On 16.7.93, the Enforcement Director sent a letter to the Pay and Accounts Officer along with the office order dated 7.7.93 certifying that the petitioner had retired from service on superannuation and requested to issue necessary authorisation to the petitioner for disbursement of provisional pension. On 8.4.94, the Enforcement Directorate issued a fresh sanction order to the petitioner for the withdrawal of the provisional pension for the subsequent period. In the said order also, it is mentioned the date of retirement on superannuation as 31.10.92. On 1.6.94, the petitioner requested the Pay and Accounts Officer to provide for the provisional pension from 1.4.94 onwards under Rule 69(1)(b) and 9(7) of the Central Civil Services Pension Rules, as it has been certified by the Director of Enforcement that the petitioner had retired from service on 31.10.92 on superannuation and he was competent to receive his pension and other retirement benefits.
The above documents filed before this Court by both parties would reveal that the Department did not object for the petitioner to retire and in fact, recommended for the disbursement of the provisional pension. In the light of these documents, it cannot be contended that the has not retired even on attaining the age of 58 years. There is no material as on date to show before this Court that the Department did pass any order not permitting him to retire and allow him in service under suspension. On the contrary, there are documents, as referred to earlier, by the Department and the Pay/and Accounts Office to have acted upon under F.R. 56 by which the petitioner had retired on the afternoon of the last day of the month in which the petitioner attained 58 years, namely, 31.10.1992.
The only contention that has been raised by the counsel for the petitioner is that the letters of the Department may not be sufficient in the absence of any order made under rule 10(5)(b) revoking the suspension order made earlier, as contained in F.R. 56(K)(1)(c) providing that it shall be open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under F.R. 56. Admittedly, there is no order passed under the relevant clause withholding the said permission. As a matter of fact, the petitioner himself wrote a letter on 30.10.92 intimating that he would retire on 31.10.92 and requesting for the pension benefits after retirement. As per the request the Department sent letters to the Pay and Accounts Office to permit the petitioner for the withdrawal of the pension benefits. This actually it is stated would amount to giving permission to the petitioner for retirement on superannuation. At any rate, it cannot be said that such a permission has been withheld by the Department by any order or any such move on the part of the Department to do so.
I shall now refer to the various authorities cited by the counsel for the petitioner as well as the respondent.
The counsel for the petitioner first cited a judgment rendered in T.S. Ramaswamy Vs. State of Tamil Nadu, this Court, while considering the analogous provisions in respect of a railway servant in a corruption case acquitted the accused on the ground that the suspension order, even after attaining superannuation, was not revoked and that therefore the sanction was mandatory. The relevant observation is as follows:
The date of retirement, namely, 31.5.1985, is not disputed. But the question for consideration is whether the accused had retired from service on, 31.5.1985. When the accused was suspended from service and was not permitted to retire, the contention of the respondent, that the accused had retired from service on 31.5.1985, is untenable. The respondent cannot blow hot and cold and contend that for the purpose of eviction the accused had retired from service on 31.5.1985 and also for the purpose that no sanction is necessary for prosecution that the accused had retired from service, i.e., 31.5.1985. But whether the accused was allowed to retire on 31.5.1985 pending criminal proceedings and even subsequently after that date has not been explained. The respondent has also not explained as to how Rule 5 of the Railway Discipline Rules is inapplicable in the case of the appellant when the suspension order was not revoked or modified subsequent to 8.12.1984.
This judgment is distinguishable on reasons given below.
Firstly, this observation was made by the learned Single Judge of this Curt on the basis of the materials placed before the trial court after trial and on appreciation of evidence let in by giving opportunity for cross examination by the other side. Secondly, it is observed in the said judgment that the fact that the accused was not permitted to retire from service and that whether the accused was allowed to retire on 31.3.85 and even subsequently after that date, has not been explained by the prosecution. This is purely on appreciation of facts. On the contrary, in this case, as I have indicated earlier, there is no order for withholding permission to retire, whereas there is an order recommending for the drawal of pension benefits after retirement. Besides this, there is also a separate order by the Department dated 7.7.93 intimating to the officer concerned that the petitioner has got retired from service. Therefore, the case on hand, in my opinion, entirely stands on a different footing from the facts of the case in the authority cited above.
In State of Assam and Others Vs. Padma Ram Borah, it was contended before the Apex Court by the State of Assam in the appeal against the judgment of the Assam High Court in the Writ Petition quashing the order of suspension even after retirement, that the High Court was wrong in holding that the retirement of the respondent automatically took effect on his attaining the age of 55 years. While considering the said contention of the Learned Counsel for the State of Assam, the Apex Court observed thus:
These contentions of the Learned Counsel for the appellant appear to us to be not without some force. But in view which we have taken of this case, it is unnecessary to pronounce finally upon these contentions, because the appellant is faced with another difficulty to which we shall presently refer even on the contentions urged on its behalf.
Therefore, though the points were raised before the Apex Court, the Apex Court did not decide this point as observed earlier. Therefore, this authority cannot be quoted by the counsel for the petitioner to support his contention. That apart, in the above case, the respondent was placed under suspension by the order dated 22.12.60. By this order, the respondent was retained in services till department proceedings against him were finalised. 1.1.61 is the date of retirement. On 6.1.61, earlier order dated 22.12.60 was modified inasmuch as it fixed a period of three months from 1.1.61 or till the disposal of the departmental proceedings, whichever is earlier. The period of three months expired on 31.3.61. However, the departmental proceedings were not concluded before 31.3.61. The State Government made no further order before 31.3.61. But the State Government passed an order on 9.5.61 extending the service of the respondent for a further period of three months with effect from 1.4.61. In that context, the Apex Court upheld the judgment of the Assam High Court quashing the suspension order dated 9.5.61 holding that the State Government could not have jurisdiction to pass such an order and that the State Government should have issued a notification before 31.3.61.
Thus, this decision rendered by the Apex Court only relate to the jurisdiction of the State Government to extend the period of suspension sufficiently long after the expiry of the earlier order passed on 31.3.61. Therefore, this has no relevance to the instant case.
Moreover, it has to be pointed out, that even though under Rule 10(5)(b), the authority is competent to place the petitioner under suspension till the termination of all or any of such proceedings, in the instant case, the suspension could not be said to have been passed under clause 10(5)(b), since there is no time prescribed. At any rate, as mentioned earlier, the point which has been raised in this case, though raised before me Apex Court in the above case, has not been finally decided.
In Hemanta Kumar Bhattacharjee Vs. Union of India (UOI) and Others, , the relevant observation of the learned single Judge of the Calcutta High Court is this:
If a person is merely suspended, he still continues to be in service, but is in a state as it were, of suspended animation. When the period is over, he has simply to be allotted a job. The word ''reinstatement'' if used in this respect, is only loosely and has no legal significance.
This is also a case where it was decided that the order of suspension against the petitioner which was made prior to 29.7.52 had expired on that date and as such no order of suspension subsequent to the expiry of the period can be made. This will not in any way help to the petitioner.
In State of Punjab Vs. Khemi Ram, it was argued by the delinquent that though the order of suspension was passed before the date of his retirement, it would not take effect for the reason that the said order was received by him only after the said date of retirement and therefore, he must be held to have retired on the retirement date and as such, the enquiry and the ultimate order of dismissal were illegal. This argument was not accepted by the Apex Court holding dial the order of suspension was effective from the date of the order and not on the date on which it was communicated to the delinquent. The relevant observation is this:
There can be no doubt that if disciplinary action is sought to be taken against a Government servant it must be done before he retires as provide by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.
This observation would not be of any use to the petitioner. On the other hand, it is stated that it is open to the Government to refuse to permit a public servant to retire and retain him in service till such an enquiry is completed. In the instant case, there is no such order was passed refusing to permit the concerned public servant to retire. Therefore, this decision would not be applicable to the instant case.
In P.R. Nayak Vs. Union of India (UOI), the question arose whether the order of suspension could be passed before the initiation of any disciplinary proceedings against the delinquent. The relevant observation, as pointed out by the Learned Counsel for the petitioner, is given below:
Thirdly, the entire consequence of Fundamental Rule 56(ff) is that the member shall be retained in service until the enquiry into the charges is concluded and the final order is passed. this Court in State of Punjab Vs. Khemi Ram, stressed the importance of passing an order of suspension where a disciplinary enquiry could not be concluded before the date of retirement. In short, the order of suspension means that he is in service but his services are temporarily suspended and no retirement can therefore take place.
Therefore, when an order of suspension was made, the mandate of Fundamental Rule 56(ff) became effective and placed an embargo on retirement.
This observation also would not help the petitioner, since it is purely on the interpretation of Rule 56(ff) of the F.R. and Rule 56(ff) has been deleted on 22.5.73. Moreover, this observation of the Apex Court has been made in minority judgment. On the other hand, some of the observations in the majority judgment would be helpful to the prosecution. The relevant observation is this:
Without expressly prohibiting the appellant from retiring on March 25, 1971 the order of suspension could not so operate as to deprive him of his right to retire on March 25, 1971, in accordance with the rules of his service read with the order extending his service upto March 25, 1971.
This would make it clear that there shall be an express order prohibiting the petitioner from retiring on 31.10.92. In other words, there must be a separate order withholding the petitioner from retiring on 31.10.92.
In H.L. Mehra Vs. Union of India (UOI) and Others, the order of suspension was challenged. Originally the appellant was suspended by an order dated 11.4.63 pending criminal prosecution. He was convicted by the trial Court and the conviction was confirmed. The appeal was pending before the Supreme Court. During that stage, the authority passed an order dismissing the appellant from service. Since the Supreme Court thereafter acquitted the appellant, the authority passed an order for the continuance of the suspension earlier made until further orders. In this context, the Apex Court would hold that the suspension order comes to an end when the order of dismissal was passed and that therefore the impugned order continuing the suspension could not be justified.
In fact, the relevant observation, in my view, is quite supporting the prosecution. The observation is as follows:
That contention was based on sub-rule (5)(a) of Rule 10, which provides that an order of suspension made or deemed to have been made under that rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.
It was said that the President, who is the competent authority for this purpose, had at no time revoked or modified this order of suspension and it, therefore, continued in force even after the making of the order of dismissal dated 26th October, 1967 and the third part of the impugned order did not more than merely recognised this position. This contention is wholly without force; it has merely to be stated in order to be rejected. We fail to see how an order of suspension can continue to be in force after the relationship of master and servant has come to an end by the making of an order of dismissal.
Once the relationship of master and servant is dissolved, the suspension necessarily comes to an end and sub-rule (5)(a) of Rule 10 cannot possibly be construed to have the effect of continuing the suspension.
The decision made in Dr. C. Kalyanam Vs. The Government of Tamil Nadu and Another, , relates to the well established principle of law. The observation is as follows:
If disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein.
There is no dispute about this position of law. But in the instant case, it has not been established before this Court that he was not permitted to retire on the date of retirement.
The above principle has been reiterated in Government of Tamil Nadu v. G. Kalyanam reported in 1985 Writ L.R. 197.
Similar is the view taken by the ''Full Bench of the Kerala High Court in R.P. Nair and Another Vs. Kerala State Electricity Board and Others,
In D.D. Suri Vs. A.K. Barren and Others, the relevant observation is as follows:
The rule provides that the suspension order may last "until the termination of all proceedings relation to" the charges. Appellant''s counsel submitted that, as mentioned in one of the letters of the State Government to the Central Government, the investigation was complete on November 23, 1968, hence on the termination of the investigation the suspension order terminated. We have no difficulty in rejecting this argument as unsound. Under Rule 7(3) the suspension order can be made to continue until the termination of all proceedings, viz., investigation, inquiry or trial which may follow the investigation. Strictly speaking, the investigation could not be said to be complete until the submission of the charge-sheet. Factual completion of the investigation in November, 1968 did not terminate all proceedings in relation to the charge levelled against the appellant.
But obviously the suspension order, came to an end by the compulsory retirement of the appellant. After retirement from service he could no longer be deemed to be under suspension
Though this was cited by the Learned Counsel for the petitioner in support of his case, the last two sentences would show that the Apex Court was of the view that the order of suspension comes to an end on retirement. This actually helps the prosecution and not the defence.
This case, The State of Mysore Vs. C.N. Vijendra Rao, was on consideration of Rule 95(b) of the Mysore Civil Services Rules which provides that a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service till the enquiry into the charge is concluded and a final order is passed thereon by a competent authority. It is observed that the order of suspension which was passed against the respondent in order to facilitate the departmental inquiry was, in a manner of speaking, a bar to his compulsory retirement. This observation was made in view of the specific provision contained in Rule 95(b). As indicated earlier, no such analogous provision is in existence in the Central Civil Services (C.C.A.) Rules. Therefore, this also cannot be said to be in support of the proposition pointed out by the Learned Counsel for the petitioner.
The decision rendered in Khem Chand Vs. Union of India (UOI), elaborately deals with the effect of the order of suspension. The facts and the relevant observation in this case could not in any way be useful to consider the question posed in the instant case. Therefore, unless there is an order under F.R. 56(K)(1)(c) withholding permission to retire a Government servant under suspension, it cannot be said that he was not permitted to retire from service.
Thus, the discussion made in the earlier paragraphs would clearly go to show that it cannot be said that department withheld permission to retire, but, on the other hand, he was permitted to get the pension benefits. Further, it shall be noticed that there is no further suspension subsequent to the date of retirement. In view of this situation, at this stage, I do not find any material to hold that the petitioner was not permitted to retire and he was retained in service under suspension.
In the light of the letters of the Ministry of Finance declaring and intimating the retirement of the petitioner on superannuation and recommending the Pay and Accounts Officer to pay the pension amount on retirement to the petitioner and giving a certificate to the petitioner, as requested by him, to the effect that the had retired on 31.10.92, the submission that the was not allowed to retire by the Department cannot be accepted.
Further, it is the contention of the Learned Counsel for the petitioner that the notification declaring the retirement has to be issued only on the order of the President and as such, the order merely passed by the Department would not be a valid order of retirement. Though this contention was urged with vehemence by the Learned Counsel for the petitioner neither the relevant rule nor any authority was shown before this Court to establish that there shall be a separate order declaring the retirement on superannuation by the appointing authority.
On the other hand, the learned Public Prosecutor pointed out the relevant Government of India''s Order in relation to Fundamental Rule 56 in Chapter IX. This order is issued by the Government of India on 10.12.65 in G.I.M.H.A., O.M. No. 33/6/56-Ests.(A). The said order is as follows:
No specific orders are necessary for retirement on due date:-- A question has been raised whether the retirement of a Government servant is automatic on the date of which he attains the age of compulsory retirement or some specific orders by a competent authority are necessary specifying the date on which they should retire.
The rules regulating the age of superannuation or the terms and conditions may provide for the compulsory retirement of a Government servant on his attaining a specific age or after completion of a specified period of service. In all such cases retirement is automatic and in the absence of specific orders to the contrary by the competent authority a Government servant must retire on the due date. It is the responsibility of the administrative authorities concerned to ensure that the Government servants under there control so retire. The date of compulsory retirement of a Government servant is known in advance and there should be no question of failure to make arrangements for his relief sufficiently in advance and complete any formalities required in that behalf. For this purpose, the authorities concerned should maintain a proper record of the dates of retirement of the Government servants working under them and take such appropriate action as may be necessary for Weir retirement on the due dates.
At the same time, a Government servant cannot take advantage of the non-receipt of formal orders regarding his relief, etc., to say that he has been granted an extension of service. If the Government servant desires to take any leave preparatory to retirement he will naturally apply for it in good time. If not, he should bring the fact that he is attaining the age of superannuation or completing the period of service after which he has to retire, to the notice of the Head of the Office in which he is serving or if he is himself the Head of the Office to that of his immediate superior. Unless he receives specific orders that he should continue in service, he should make over charge on the due date to the Head of the Office (or such officer as may be nominated by the latter), or if he is himself the Head of the Office to the next senior-most officer in the office who would normally be placed in charge of the office in his absence.
Thus, it is clear that it cannot be said, on the basis of the above Government Order that there should be a specific order regarding retirement on superannuation.
In support of his submission, the learned Public Prosecutor cited the following decisions:
(a) In State of Karnataka v. R.S. Naik (1983 (3) Serv. L.R. 49) , the point in controversy arose whether the retirement on superannuation the suspension stood revoked on severance of status of master and servant irrespective of intended prosecution pending against an employee and ultimate result thereof. A Division Bench of Karnataka High Court has held as follows :
Therefore, the learned single Judge has taken the correct approach in assessing the situation and circumstances under which the Respondents came to retire. When once he retired, the relationship of master and servant between the State and the respondent ceased to be there. In other words with the severance of the status between the two by virtue of the effective retirement of the respondent with the consent of the authorities the respondent''s rejoining duty even after the termination of the criminal proceedings that might be pending earlier to his retirement, does not and cannot arise. Therefore, the result of the criminal I prosecution launched against the respondent and pending before the Criminal court does not alter the status at all. Indeed, as the learned single Judge observed, fortiori this Court of Government revoking the earlier order of suspension or regulating his period of suspension will not also arise whatever be the result of the criminal prosecution, if any, against the respondent. As a matter of fact, the Government having permitted the respondent to retire, the earlier order of suspension has necessarily to be treated as having lapsed and it is no longer available for being regulated by the disciplinary authority or the appellate authority. In view of the circumstances stated above there is no alternative but to treat the period of suspension as duty only and cannot be treated as under suspension.
(b) In Dena Bank v. Amiya Kumar Dey (1988 (II) CLR 623) , a Division Bench of the Calcutta High Court has held as follows:
On retirement of the employee, the relationship of master and servant came to an end and there being no statutory provision under which the disciplinary proceedings initiated against a retired employee can be continued, the disciplinary proceedings must automatically come to an end as a matter of course. There was no further scope in the disciplinary proceedings to make any finding against the employee
(c) In S.P. Jain v. Punjab National Bank and others (1993 (1) L.L.J. 655) , the Delhi High Court has held as follows:
Learned Counsel for the petitioner vehemently submitted that the petitioner was permitted to be retired by the respondents without any objection. After the petitioner attained the age of superannuation, the relationship of master and servant between the respondent and petitioner ceased to exist. Therefore, the earlier order of suspension which was passed by the respondents has necessarily to be treated as having lapsed.
There is a good deal of force in this submission. The principle is well settled that on attaining the age of superannuation, by the respondents without any objection, the relationship of master and servant between them has ceased to exist and, therefore, the order of suspension passed either has ceased to operate with the retiring of the petitioner from the services of the respondents.
The reading of these decisions would reveal that on the date of retirement on superannuation, the suspension has to be treated as having lapsed. It is not the case of the petitioner that on retirement on attaining the age of superannuation, any objection was raised by the Department. In the absence of any such event, there is no difficulty to hold that the relationship of master and servant has ceased to exist and consequently, the order of suspension earlier passed, ceased to operate.
In this context, I shall point out some of the observation made by the Division Bench of this Court, while dealing with F.R. 56(a) and (c) (Tamil Nadu Government) in relation to the effect of suspension order on the date of superannuation. The said decision is reported in 1997 Writ L.R. 120 (N.M. Somasundaram v. The Director General of Police, etc.). The Honourable Chief Justice K.A. Swami (as he then was) speaking for the Bench would observe that there shall be a separate and specific order, not permitting the Government servant to retire from service, while the suspension order was in force, by giving valid reasons. The relevant portion of the observation is as follows:
A reading of Rule 56(a) and (c) together would lead to an irresistible conclusion that in order to retain a public servant or a Government servant in service on attaining his age of superannuation, a positive order in writing shall have to be passed by the Government giving the reasons as to on what grounds, which should be on public grounds, a Government servant is retained in service. No doubt, Rule 56(c) says that a Government servant under suspension on a charge of misconduct, should not be required or permitted to retire on his reaching the date of compulsory retirement. It further says that he should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the Competent Authority. Therefore even though it may not be necessary to permit the Government servant against whom a disciplinary proceeding is pending, to retire from service, in order to retain him in service for the purpose of disciplinary proceedings, a positive order in writing is required to be passed. The public ground for passing the said order is the pendency of the disciplinary proceeding. But, what is necessary is that there should be an order passed by the Government not permitting a Government Servant to retire from service.
In the light of the above legal position and in the absence of positive order by the Government in the instant case not permitting the petitioner to retire, it can be safely concluded, on the basis of the materials placed before the Court as on date, that he got retired under F.R 56(a) on the afternoon of the last day of the month in which he attain the age of 58 years, i.e., on 31.10.92.
Mr. Santhanagopalan, the Learned Counsel for the petitioner would further argue, that subsequent to the alleged date of retirement, viz., 31.10.92, the Department has issued fresh Charge-memo referring about the earlier suspension order which is pending enquiry and that the Department permitted the petitioner only for getting provisional pension and the entire benefits of retirement have not been given to the petitioner. According to the counsel, it is the case of the Department, in a departmental proceedings, that the petitioner has to face the departmental enquiry is pursuance of the earlier suspension order and that the petitioner is not entitled to get the full pension benefits on retirement on superannuation, but, on the other hand, the case put forward by the Department before this Court that the petitioner already got retirement on the date of superannuation as provided under F.R. 56(a) and as such the department is blowing hot and cold in respect of this aspect. The learned Public Prosecutor does not dispute regarding the contrary stand taken by the Department in the departmental enquiry and in regard to non-disbursement of full pension benefits. Admittedly, only provisional pension has been disbursed to the petitioner. In this situation, I cannot but point out that the stand taken by the Department is not clear.
Moreover, the learned Public Prosecutor would submit, on the basis of the Government of India''s orders, that there are no separate orders necessary regarding the retirement on superannuation. Under the same breath, he would also submit that there is an order by the Department declaring his retirement on superannuation on 7.7.93.
Taking into consideration the submissions made by the counsel for the petitioner, I am of the view that the Department has not taken a clear stand with reference to these aspects. However, in view of my discussion made above, as on date there is no material to show that he was not permitted to retire by passing a positive order withholding permission for the petitioner to retire.
Therefore my conclusion is this:
The petitioner got retired on the date of superannuation and the suspension order earlier made would automatically get lapsed on his retirement, as there is no positive order by the Government objecting to his retirement. Consequently, the petitioner ceased to be a public servant on the date when the charge-sheet was filed and the cognizance was taken. Hence, there is no sanction necessary under S. 19 of the Prevention of Corruption Act. As such the cognizance is valid without said sanction.
In the result, the Revision is liable to be dismissed and accordingly, the same is dismissed.