P.R. NAYAK v. UNION OF INDIA

(a) The contention of the appellant that he was entitled to an extension of 5 years is against the terms of !'. 56(f). The «ppellant is estoppel from challenging this extension till March 25, 1971. The appel lant hims.elf asked for the extension, and has proceeded, in the petition. on the basis of the extension and asked for a declaration that he retired from service on March 25, 1971. The estoppel rightly raised against the appellant in regard to F.R. 56(f) and 56(ff) is that the order of suspen sion was passed at a time when the appellant was in service as a result of being permitted by the President to be retained in service for a period oi 4 months pursu·:int to the appellant's agreement to an extension. [725 F-H; 726 A-E; 736 G-H] (b) Though the order of extension did not state as to what post the appellant held, when his services were extended. for 4 months, he was permitted to retain the post he was holding. These words mean that he C D E F G H P, R, NAYAK V. UNION 699 A remained a me!l'.ber of the Indian Civil Service and that he was kept in the place or position held by him. The word in effect 'office'. [728 E-H] 'post' means B c D E F G H (c) Retention of post with the sanction of the President under .~F.R. 56(f) is not a matter of right. The practice, shown by the various instances of extension of service establishes, ( 1) that the order ol"' extension does not indicate that the person concerne<! is mentioned with reference to a particular post, and (ii) that the extension of s~rvic~ is in no case for 5 years. Therefore. under F.R. 56(f) the extension m fact can be for any period, which together with the period for which he held the post doe> n(lt exceed 5 years. [720 H; 730 A.CJ (5) The order of suspension is under r. 3 of the All India ServlCes (D & AJ Rule,, and F.R. 56(ff) is a rule laying down the consequences of tne order ot suspension. They are (i) F.R. 56(f) is deleted so as not to come into operation during the period of suspension inasmuch as the words used are, 'notwithstanding anythinJ! contained in cl. (f) ', (ii) the member of the service shall not be requlfed or permitted to retire, and (iii) the member shall be retained in service until the enquiry into charges is concluded. When the date of compulsory retirement is allowecl to pass by an extension of service under F.R. 56(f). the words 'reaching the date of compulsory retirement" in F.R. 56(ff) will apply to the postponed date of retirement, because the actual date of retirement is shifted. .It will be illogical to hold that a member of the Indian Civil Service c~no.t retire because the order of suspension is before the date of compulsory retirement, but when he is on extension of service he can retire .even when an order of suspension has been passed. Therefore, the order of suspen· sion n1eans that he is in service, but his services are temporarily suspended and hence, no retirement can take place. The prohibition against retire ment is embedded in P.R. 56(ff) and therefore no separate order is re- quired or necessary to the effect that the appellant shall not be required or permitted to retiro. !739 A-H; 740 A·BJ (6) Fundamental Rule 56(ff) dos not violate Art. 14 on the ground that under the Civil Service Regulation 351A, a Government servant against whom disciplinary proceedings were pending could be permitted to retire. But F.R. 56(Jf) reintroduced in 1970 the old cl. (d) of the rule, which was deleted in 1962. Under F.R .. 56(d) also a Government scrva~t under suspension shall not ~ required or permitted to retire on reachmg the date of compulsory retirement. but shall be retained in ser vice until t_he en!l~iry is _con~luded. That rule governed by the members of the Indian CtVJI Service till 1962. insertins FR. 5?(ff) cannot be said to be an infraction of Art. 14. There are so~1e differences between the members of the Indian Civil Service and members of t~e All India Servi_c~s. but the differences also indicate. that there are special nghts and nnvtleg<:s for members of the Indian Civil Service. [740 B-H; 741 A-CJ Its restoration by CIVIL APPELLATE JURISDICTION : Civil Appeal No 875 of

#1971. . Appeal ~om the Judgment and Order dated May 6 1!:171 of the Delhi High Court in Civil Writ No. 350 of 197 I. ' C. _K. Daph 1ary, B. R. L. Iyengar,/. C. Ta/war, S. C. Patel and B1shamber Lal, for the appellant. Niren De, Attorney-General for India, 0. P. Malhotra, Ram Panjwani and S. P. Nayar, for the respondents. 700 SUPREME COURT REPORTS [1972) 2 S.CR. The Judgment oi the Court was delivered by A Dua, J. This appeal on certificate of fitness granted by a Division Bench of the High Coun of Delhi under Art. 133(1 )(c) ·of tlle Constitution is directed against its judgment and order dated M.!tY 6, 1971 dismissing the appellant's writ petition under Art. 226 of the Constitution. The appellant joined the India.'l Civil Service after being selected pursuant to his success at the competitive examination held in London in 1934. He underwent the necessary period of probation and was thereafter duly admitted to the s;;id Service. He signed the necessary covenant with the then Secretary of State for India. He arrived in India on November 25, 1935. It is not disputed before us that according to Fundamental Rule 56(f) the appellant as a member of the Indian Civil Service had to retire after 35 years' of service counted from the date of his arrival in India subject to the proviso that if he had at the end 35 years' five years, he might, with the sanction of the President of India be permitted !v 1"-etain his post until he had held it for live years. The appel lant's date of retirement in the normal course would thus be November 25, 1970 and this is not controverted in this Court. service held his post for less than The appellant was appointed as Managing Director of the Indian Refineries Ltd., a Public Sector undertaking,-in October. 1963. He was appointed as Chairman and Managing Direct.or of the said undertaking and he continued to hold that office till August, 1964 when he was appointed as Chairman of the Oil and In January, 1965 he was appointed Natural Gas Commission. a~ Secretary to the Government of India in the Ministry of Pet roleum and Chemicals and in February, 1969 he was appointed as Secretary in the Ministry of Works, Housing and Urban Development. In the meantime. in June, 1967 reference was made to Shri S. N. Rao, the Central Vigilance Commissioner, to inquire into the circumstances necessitating cliange iri the align ment of the pipeline of the Indian Oil Corporation in the coal field areas of Bihar and West Bengal. The report submitted by Shri S. N. Rao in April, 1970 did not contain any finding ad verse to the appellant. It appears that the Parliamentary Com mittee on Public Undertakings had also examined the Pipeline Division of the Indian Oil Corporation and submitted its report to Parliament on April 30, 1970. As in this report there were some findings adverse to the appellant the Government framed 9 charges against him and referred them for advice to Shri S. Dutt, the Central Vigilance Commissfoner, who, for certain personal reasons, dee lined to give any advice. Government had in August, 1970 appointed a one man Com- In the meanwhile c D E F G H P, R. NAYAK V. UNION (Dua, J.) 701 m1ss10n consisting of Shri J. N. Takru, a retired Judge of the Allahabad High Court under the Commissions of Enquiries Act, 1952, for enquiring into several matters arising out of the report of the Parliamentary Committee on Public Undertakings. Wh~ Shri S. Dutt declined to give his advice the Government in the Ministry of Petroleum and Chemicals in October, 1970 relerred to the Takru Commission for advice, the question whether prima facie charges had been made out against the appellant. The charge-sheet containing nine charges against the appellant were also forwarded to that Commission. On November 7, 1970 the Government of India intimated Shri J. N. Takru that he was·· further required to suggest if any other charge or charges appear ed to him to have been prima facie made out against the appellant. The Takru Commission examined 14 charges against the appel lant and before starling the enquiry required him on November 16, 1970 to submit his written statement in defence. The appel lant submitted his explanation in more communications than one. They were dated 7th and 19th December, 1970 and 5th January, 1971. Shri Takru submitted to the Government an interim report on January 13, 1971 in which prima facie case against the appellant in respect of majority of the charges was stated to It was in these circumstances that it was have been established. decided to hold disciplinary proceedings against the appellant and with that end in view an order suspending him was passed on March 23. 1971. In the meantime, on November 3, 1970 the appellant had written to Shri B. Sivaraman, Cabinet Secretary t':!e following letter : "Shri J. N. Takru is enquiring into certain matters connected with the Pipeline projects of the Indian Oil Corporation, on which the Public Undertakings Com mittee of Parliament had made a report in April, 1970. These matters cover certain allegations against me, in respect of which I have not so far had an opportunity of having my say. I understand that Shri. Takru has been requested to advise Government within the next few months on whether there is any prima facie basis for these allegations. In doing so, he will give me an opportunity to explain my point of view, where neces sary. On the basis of Shri Takru's report, Government will take a decision on what further action, if any, is needed. To facilitate such a course, I am willii; ig to accept an extension of service by about 4 rr.onths from the 25th November, 1970, the date of my retirement otherwise, should government decide to grant mch exterrtion." B c D E F G H 14-L643SupCI/72 702 SUPREME COURT REPORTS (1972) 2 S.C.R. On November 23, 1970 the President of India passed the following order extending the appellant's sef\'.ice upto March 25, 1971 : "The President is pleased to order under the pro services of Shri P. R. Yiso to F. R. 56(f) that the Nayak, a member of the Indian Civil Service, who completed 35 years' of service on the 25th November, 1970, shall be extended upto the 25th March, 1971." The order of suspension dated March 23, 1971 reads as under : 1 -tt-" _, "Whereas disciplinary proceedings against Shri P. R. Nayak, JCS are contemplated; "AND WHEREAS the President, after carefully considering the available material, and having regard to the nature of the charges against him and the cir cumstances of the case, is satisfied that it is necessary ·and desirable to place the said Shri P. R. Nayak under - suspension; NOW THEREFORE the President, in exercise of the powers conferred by clause (a) of sub-rule ( 1) of rule 3 of the All India Services (Discipline and Ap peal) Rules, 1969 and all other powers enabling him in that behalf hereby places the said Shri P. R. Nayak under suspension with immediate effect until further orders. It is further ordered that during the period that this order shall remain in force, the said• Shri P. R. Nayak shall be paid such subsistence allowance as is admissible under the rules and his headquarters shall be New Delhi which he shall not leave without obtain ing the previous permission of the Central Government." It was under these circumstances that the appellant approach ed the High Court of Delhi with a petition under Art. 226 of the Constitution praying for quashing the order of suspension and for a declaration that the appellant had retired from service on March 25, 1971 rnd was entitled to full benefits of retirement permissible under the covenant and the rules as guaranteed by the Constitution. It was further prayed that F. R. 56(ff) be de clared as ultra vires the Constitution. The High Court dismissed the writ petition. It held th.rt when the appellant was permitted by the President under the proviso to F.R. 56(f) to continue ito hold the post held by him at the end of A C D E F G H P. R. NAYAK "· UNION (Dua,/.) 703 A B c D E F G H 35 years' of his service, he continued to hold that post as a mem ber of the Indian Civil Service and not in any other capacity. He could be permitted to hold that post for a period not exceedin1g five years as contemplated by the said proviso. According to tlfe High Court even the appel!ant had understood this to ~ •the correct meaning ·and scope of cl. (f) of P.R. 56 as he had himself prayed in the writ petition for a declaration that J:i.~ had re.tired from service on March 25, 1971. The argument that an order of suspension under r. 3 (1 )(a) of All India Services (Discipline and Appeal) Rules, 191'19 could only be made against the appellant..._ after the initiation of disciplina~y· proceedings was also not accep ted by the High Court. According to that Court it was enough if there were accusations or imputations against the appellant which ca1Jed for an enquiry and the Government felt satisfied that • it was necessary in the circumstances to suspend him. The -conten tion that P.R. 56(ff) was violative of rule of equality guarall'teed by Art. 14 of the Constitution was also repelled and it was observed by the High Court that members of the -Indian Administrative Service who were earlier members of. the Intliim. Civil Service constituted a class distinct from the other members of the Indian Administrative Service and further that P.R. 56(ff) merely re-introduced in October, 1970 the old cl. ( d) of P.R. 56 which had beem deleted in August, 1962. By restoring the old position, according to the High Court, no new liability was im posed on the former members of the Indian Civil Service. In this Court a number of points were raised on behalf of the appel1ant and elaborate arguments were addressed on both sides. We, however, do not consider it necessary to deal with them at Jen)!th and express our considered opinion on all of them be cause in our view 1his appeal can be disposed of on the short· point th!it the order suspending the appellant is bad, being violative of the relevant statutory rule. Fundamental Rules, to regulate the conditions of se:vice of civil servants in India, were made by ·the Secretary of State Council in exercise of the powers conferred upon him bv s. 96-B of the Government of India Act as amended in 1919. Thev came into force with effect from January, 1922 replacing the substantive rules in C:ivil Service Regulations exceot in respect of pensions. Article 565 of the Civil Services Re~ulations (replaced by the Fundamen•tal Rules in 1922) dealing with "compulsory retire ment" so far as relevant provided : "565 (a) After thirty-five years' service, counting from the date of his arrival in India. an officer shal! not, except for special reasons, and with the sanction of the Secretary of Sta•te retain his office or be appointed to- any new office: • I 7 04 SUPREME COURT REPORTS [ 1972] 2 S.C.R. Provided that, if such an officer has held his office for less than five years, he may, for special reasons, with the sanction of the Government of India, be permiNed to retain his office until he has held it for five years. The 'term "office" in this article includes an officiating appointment. - Note.-[This rul·~ does not apply to an officer holding the appointment of a Judge of a Chief Court. Such an officer is required to vacate his appointment on attain inl! the age. of 60 years.l (b) The period of five years begins to run from the date on which the officer firnt takes up the office, whether substantively or temporarily, provided that, if temporary, he is confirmed without reverting to his sub- stantiw appointment; but the currency of the period is not interrupted by any subsequent temporary promotion to a higher appointment. - Note.-[The term "office" as used in this Article does not include any office held under direct appoint ment by His Majesty the King-Emperor of India. but the retention of such an office should be subject 'to the condition prescribed in Article 563.] F.R. 56(f) and (ff) which provide for the retirement, and retention in service, when under suspension, of a member of the Indian Civil Service, occur in Chapter IX of the Fundamental Rules, headed "Retirement". The heading of this chapter before June 26, 1970 used to be "compulsory retirement." According to the learned Attorney General the word "compulsory" was re moved from the heading b.!cause of the substitution of the new clause (k) in F.R. 56 which enables certain ca't.egories of Gov to voluntarily ernment Servants, subject to ce~tain conditions retire by giving three months' notice in writing. F.R. 56(f) and (ff) read : "56(f) A member of the Indian Civil Service shall r<ltire after thirty-five years' service counted from ~he date of his arrival in India. Provided that if he has at the end of thirty-five years' service held his post for less than five years he may, with the sanction of the President, be permitted to retain his post until he has held it for five years. Note : For the purpose of this clause, officiating tenure of a post shall be included in calculating the period of five years. A B c D E F G H P. R. NAYAK V. UNION (Dua,/.) 705 A B (fi) Notwithstanding anything contained in clauses (a), (d) and (f) where an officer who is member of the Indian Administrative Service or the Indian Police Ser~ vice and who before becoming such member was a mem- ber of the Indian Civil Service or the Indian Police, is under suspension on a charge of misconduct, he shall not be required or permiHed to retire on reaching the date of compulsory retirement, but shall be retained in service until the inquiry into the charge is concluded and a final order is passed thereon by the competent authority." . c Clause (ff) was inserted on October 6, 1970. Clause (d) of F.R. 56 as it existed between November 1946 when it was added and August 1962 when it was deleted reads : " ( d) Notwithstanding anything contained in clauses (a), (b) and (c), a Government servant under sus pension on a charge of misconduct shall not be required or permirted, to retire on reaching the date of compu1s0;:y retirement, but shall be retained in service until the ~ enquiry into the charge is concluded and a final order is passed thereon by competent authority." This clause as is obvious was not confined to members of the Indian Civil Service but was applicable to all Government servants. With the deletion of this clause in August, 1962 and upto October, 1970, when cl. (ff) was introduced, there was no provision similar to cl. (d) of 1946 or to cl. (ff) of 1970 applicable to those officers who formerly belonged to the Indian In August, 1962 a new· Civil Service Regulation Civil Service. 351-A was substituted for the old one, which so far as relevant, reads : "351-A.-The President further reserves to himself 'the right of withholding or withdrawing a pension or anv part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of anv pecuniary caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave mis conduct or negligence during 'the period of his service, including service rendered upon re-employment after retirement : · Provided that- 1 a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or dnrin!r his re··~mployment. shall. after the final re tirement of the officer. be deemed to be a proceeding D E F G 706 St:PREME COURT REPOR'fS [1972] 2 S.C.R. under this article and shall be continued and concluded by the authority by which iot was comm~nced in the same ~manner as if the officer had continued in service; Rule 3 ~ All India Services (Discipline and Appeal) Rules, 1969 which provides for suspension during disciplinary procee- dings reads : "3. Suspension during disciplinary proceedings- • ( 1) If, having r.ega·:d to the nature of the charges and the circumstances in any case, the Government which ini1iates any disciplinary proceedings is satis fied ihat it is necessary or desirable to place under sus pension 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 oi the inquiry and the passing of the final ord.~r in the case : Provided •that, in case whem there is a difference of opinion between two State Governments, the matter shall be referred 1o the Central Government for its decision ( 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 !he termin~tion 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 tn the discharge of his duties or involves moral turpitude. ( 4) A member of the Service shall be deemed have been placed under suspension with effec<t from the daM of conviction if, in the event of conviction for a criminal offence, he is not forthwith dismissed or re moved or compulsorily retired consequent on such con viction, provided that the conviction carries a sen'tence of imprisonment exceeding forty-eighi hours. ( 5) Where a penalty of dismissal, removal or com pulsory retirement from service imposed upon a member of the service und.~r suspension is set aside in appeal A B c D E F G H P.R. NAYAK v. UNION (Dua, J.) 707 or on review under these rules and the case is remitted for furlher inquiry or action or with any ather direc tions, the order of his suspension shall be deemed have continued in force on and from the date of the original order of dismissal, removal or _compulsory re tirement and shall remain in force until further orders. ( 6) Where a penalty of dismissal, removal or com pulsory retiremen1 from service impose upon a member of the service is set aside or declared or rend·~red void in consequence of or by a decision of a court of law, and the disciplinary authority, on a consideration of the cii'cumsdmces of the case, decides to hold further inquiry against him on the allegations on which 1he penalty of dismissal, removal or compulsory retirement was origi nally imposed, th·~ member of the Service shall deemed to have been placed under suspension by the Central Government frcm 1the date of the original order of dismissal, removal or compulsory retirement and shall con1inue to remain under suspension until further orders. 7 (a) An order of stisp~nsion made or deemed to have been made under this rule 5hall continue to re main in force until it is modified or revoked by authority competent to do so; ( b) Where a member of the Service is suspended or is deemed to have been suspended, whether in con nection with any disciplinary proceeding or otherwise, and any other disciplinary proceedin2 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 writin~. direct 1hat the member of the Service shall continu.e to be under suspension till 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 modi fied or revoked by the authority which made or is deemed to have made the order." Sub-rule ( 1) of this rule is a reproduction of sub-r. ( 1) of r. 7 of 1he A.LS (D & A) Rules. 1955. It may be P~called that the appellant was appointed as Secre tary in the Ministry of Petroleum and Chemicals in January, 1965 and he was appointed as Secretary, Works, Housidg and Urban Development in February, 1969. The first argument urged on B c D E F G H 708 SUPREME COURT REPORtS (1972] 2 S.C,R. A c behalf of the appellant was that under F.R. 56(f) the appellant had to retire after 35 years' service counted from the date of his arrival in India. This date of retirement, according to the appel lant's counsel, is fixed and rigid and is in no circumstances capable In other words, the period of service of of being postponed. the appellant could on no account be extended beyond the period of 35 years counted from the date of his arrival in India. His. B retention in the post held by. him after that date could only mean his re-employment and not extension or continuation of his ori ginal service as a member of the Indian Civil Service. It was further contended 'that the appellant could be permitted to re- tain his post under the proviso to F.R. 56(f) only if he had held the same for less than five years on the date of his compulsory retirement. As he had held the post of a Secretary to ·the Government of India since January, 1965 it c0uld not be said that he had held the post of such Secretary for a period of less than five years on November 23, 1970. · He could, therefore, not be rctained in Indian Civil Service after the date of compulsory retirement, namely, November 25, 1970. In this connection reference was also made to 'the definition of the expression "per manent post"' contained in F.R. 9(22). This expression is de ftned there to mean a post carrying a definite rate of pay sanctioned without limit of time. According to Mr. Daftry's argument the appellant held the post of a Secretary to the Government of India and the office of the Secretary, Works, Housing and Urban De.velopment on November 23, 1970 thereby emphasising difference between "post" and "office". In the alternative it was submitted that if the proviso to F.R. 56(f) were to be construed as referring to the post of 1the Secretazy, Works, Housing & Urban the appellant since February, 1969 arid Development held by not that of a Secretary to the Gov>~rnment of India, then, his retention to that post should have been for the full period of five years beginning from Februaty. 1969 and his service could not be extended for a period le&s than five years : in other words, it could not be extended only upto March 25, 1971, as was ordered by the President on November 23, 1970. According to the appellant's contention if a member of the servic~ exercises his choice under the proviso then he must be permitted to hold that p..>st to complete five years in that post. E G D F Tile next argumell't pressed before us on. behalf of the appel- lant was that under r. 3 of the All India Services (D & A) Rules, 1969 the appellant could be placed under suspension only after disciplinary proceedings wi1h respect to a definite charge or charges ~gainst him were actually initiated or started and not merely when H they were in contemplatiQn as the impugned order of the Pre expressly purports to do. Re sident dated March 23, 1971 ference to Takru Commission, according to this argument, could· A B c D E F G H P. 11.. NAYAK v. UNION (Dua, J,) 709 by no means be considered to be the initiation or commencement of disciplinary proceedings. The language of r. 3, aceording to the learned counsel, is clear and unaml:liguous and it is .not permissible on plain reading of sub-r. ( 1) to order the appellant's suspension merely because there are some accusations or putations against him which call for an enquiry : in the guise of: iDJerpretation Courts cannot re-write 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 third contention raised on behalf of the appellant em-· phasised a lega(defect in the order of suspension and it was argu.oo that the order of suspension must also have denied the appellant's request to retire oil March 25, 1971. Without expressly pro hibiting the appellant from retiring on March 25, 1971, the order of suspension could not so operate as to deprive him of hh 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. In our view, the second contention possesses merit and deserves In case we uphold this contention it would be un to be upheld. necessary for us to 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 ( l) of this rule on its plain reading empowers the G0vernment, which initiates any 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. It does not suggest that suspension can (emphasis supplied). be ordered merely when disciplinary proceedings are contem plated. The language used in sub-rr. ( 4) to (7) also suggests that these rules do not authorise order of suspension of the de· linquei'lt member o.f the Service merely because disciplinary pro ceedings against him are contemplated. Suspension under those sub-rules may be ordered only either after conviction (deeming provision under sub-r. 4) or when criminal proceedings are actually in progress ( sub-r. 5) or when after the penalty imposed on him havinz been set aside, the disciplinary authority decides to hold further enquiry (deeming provision under sub-r. 6). Clause (b) of sub-r. (7) similarly provides for continuation of order of sus pension. if anv other disciplinary pr~ceeding is commenced against the delinquent member of the service. durin11: the continu ance 0f the earlier suspension-actual or deemed. The legis-· .. 710 SUPREME COURT REPORTS [1972] 2 S.C.R. lative scheme underlying r. 3 is thus clearly indicative of intention of the rule making authority to restrict its operation only fo those cases in which the Government concerned is pos sessed _of sufficient material whether after preliminary investigation or otherwise and 'the disciplinary proceedings have in fact com menced 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 r. 3 and we find no cogent ground for strain ing the plain language of r. 3 (1) so as to exv~nd it to cases in which discipli_l)ary proceedings are merely contemplated and not It is no doubt 1rue 'that this actually initiated or commenced. Court (G. K. Mitter and A. N. Ray JJ) has in Govemmem of India, Ministry of Home Affairs & Ors. v. Tarak Nath Ghu5/1( 1 ) expressed the view that under r. 7 (1 ) of the All India Services (D & AJ Rules, 1955 (replaced in 1969 by r. 3 (I) with which we are concerned) the Government is entitled to place an officer under suspension even bdore definite charges are communicated to him when preliminary investigation has be.en made into his conduct following allegations of corrupt or malpractice levelled In support of this view, reliance in that decision against him. was placed on S. Govinda Menon v. Union of India('), an ~arlier decision by a bench of two Judges. AHer referring 'to the facts and the decision in S. Govinda Menon's case (supra) it was the case of Tarak Nath Ghosh's case (supra) as observed in follows: "It was urged before us that th.e order of suspen sion there was different from the one before us. While there is no doubt •that the order against th·~ appellant in the above cas.e was far more detailed both wi'tli regard to the nature of the charges and to the necessity of pla cing him under suspension, in substance there is little difference for the purpose of r. 7 of the Service Rules. The ord.er in this case dated 3 ls1 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 Service Conduct Rules and enquiries made by the Government of Bihar into 1he alle.2atiorn had rev>~aled 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 con1ains phrases lik•3 '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 stag(! which called (2) [1967] 2 S.C.R. 566. A B c D E F G H A B c D E F G H P. R. NAYAK v. UNION (Dua, J.) 711 for an order of suspemion. In substance disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are en tertained and followed by a preliminary enquiry into them culminating in the satisfaction of 1ho~ Government that a prima facie case has been made out against him for the framing of charges. When the order of suspen the view sion itself shows that Government was of tha't such a prima facie ca»~ for departmental procee dings has been made out the fact that the order ·also me1i"tions that such proceedings \Wre contempJaied makes no difference. Again 'the fact that in other rules of ser vice an order of suspension may be made when 'discipli nary proceedings were contemplated' should not ~~d 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 be longs to 'the All India Services or to one of tbe humble cadre. It is th.e 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." The Court in Tarak Nath Ghosh's case (supra) considered the dictionary meaning of the word ··suspension' and what said in art. 389, vol. 25 of Halsbury's Laws of England at p. 589, namely, that in the absence of an express or implied term to the contrary the master cannot punish a servant for alle ged misconduct by suspending him from employment and stopping his wages for the period of suspension. But this meaning was considered to be applicable only when suspension is resorted to by way of punishment. Rule 7 in ihat case, on the other h:and, merely provided for suspension of a Government servant for the purpose of disciplinary proceedings and could, therefore, in the opinion of 1he Com't, be invoked when serious allegations of In the case of S. Govinda Menon misconduct are imputed. (supra) the argument raised both in the High Court . ·and in this Court was that till charges are framed under r. 5(2) of All India Services (D & A) Rules, 1955 r. 7 could not be utilised for suspension b~cause the word 'charges' as used in r. 7 (1) must be unders(ood to mean definite charge or charges framed ·under r. 5 (2). This contention was repelled by this Court with the following observations : · "It was pointed out that definite charges were framed on Jun£ 6. 1963 and the Government had no authority 712 SUPREME COURT REPORTS [l972] 2_ S.C.R. to suspend the appellant bdore 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 mem ber of th~ Service charged together wrth a statement of the allegations on which each charge is based and of an}' other circumstances which it is proposed to into consideration in passing-orders on the case.' It was argued by the appellant that the word 'charges' 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 argumen1. Rule 5 ( 2) pres cribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or char.ges. 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 10 enable the member of Service t9. meet the case against him. The language of rule 7 (I) 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 tha1 it is necessary to place him In view of the difference of langu under susne.nsion. age in Rule 5(2) and Rule 7 we are of the opinion that the word 'charges' in ru1·~ 7 (1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject 1he argument of th.e appellant on this aspect of ~he case.'' It is, however, noteworthy that in that case this Court had a l~ttle earlier come ·to a positive finding that disciplinary proceed ings had been ac1uallv initia•ed against the appellant. This is what the Court said : "A perusal of the order of the Government. Ex. P~I. would iiself indicate that disciplinary proceedings had ~_en initiated ag, ainst the appellant .. Exhibit P-1 reads as follows : 'The Government have received severa 1 peiitions containing serious alleg8tions of official misconduct A B c D E F G H A B c D E F G P. R. NAYAK v. UNION (Duu, J.) 713 a)(ainst Shri S. Govinda Menon, l.A.S. First .Member, Board of Revenue, and form~rly Commissioner, Hindu Religious and Charitable Endowments lAdministration). Preliminary enquiries caused to be conducted into the allegartions have shown prima facie, that 1he officer guilty of corruption, nepotism and other irregularities of a grave nature; The Kerala tligh Court had also occasion to comment on the conduct of the officer .in their judgment in O.P. 2306/ 62 delivered on 12'th Febru ary, 1963. The judgment begius with 'the observation that 'thi§ case, if it has served little else, has served to expose a disquieting state of affairs regardin11, the dis posal of valuable forest lands belonging 1o a religious institution known as the Sree Pulapally Devaswom of which I trust due notice will be taken by the competent authority in the interests of fae public administration and 'the preservation of our forest wealth no less than in the interests of this particular institutfon.' The judgment in the above case and the preliminary report of the X-Branch police have disclosed the follow ing grave charges of serious irregularity and official misconduct on th>~ 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 numl:l'~r of officers who are subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the in1erest of the proper conduct of the enquirv it is ne<''«ary that the officer should not be allowed to continue in that past. Having regard to 'the na·ture of the charges against the officer and the circumstances the proper course would be to place hir.1 under suspension. Shri S. Govinda Menon, l.A.S. First Member. Board of Revenue, therefore filaced under suspension under Rule 7 of the All India Service (Discipline and Appeal) Rules. 1955 till the disciplinary proceedings initiated against him are completed.' A perusal of this document shows that the Govern ment had accepted the prQceedings ·taken in the matter up till that date and had decided to go forward with the In our opinion, 'there is no disciplinarv proceedings. formal order necessary to initiate disciplinary proceed ings under Rule 4 (1) of the Rules and the order of the State Government under Ex. P-1 must be deemed to be an order under Rule 4 (1) of the Rules initiating dis ciplinary proceedinl!;s." 714 SUPREME COURT REPORTS [1972] 2 S.C.R. In S. Govinda Menon's case (supra), therefore, the order of suspension wa~ held also to be the order initiating the disciplinary proceedings.,,_ No question was raised in that case about the legality initiating disciplinary proceedings of the composite order both and suspending Govinda Menon. But be that as it may, we find ourselves with all respect unable to agree with the view taken in Tarak·Nuth Ghosh's case (supra). There is no gainsaying that there is no inherent power of sus pension p05tulated by the Fundamental Rules or any other rule governing ~ appellaD't's conditions of service. Except r. 3 of the A.I.S. (D & A) Rules, 1969 no other rule nor any inherent power authorising the impugned order of suspension was relied Upon in this Court in its support. Therefore, if r. 3, which is the only rule on which the appellant's suspension pending dis ciplinary proceedin,.gs can be founded, does not ,postulate an order of suspensiQn before th,e in~tiation of disciplinary proceedings and the Government initiating such proceedings can only place under suspension the member of the Service against who such proceed ings are started, then, the impugned order of suspension which in clearest words merely states that disciplinary proceedings agains't the appellant are contemplated, without suggesting actual initia tion or starting of disciplinary proceedings, must be held to be outside this rule. The impugn•!d order of suspension, it may be pointed out, is not like an order of suspension which, without adversely affecting the rights and privileges of the suspended Government servant merely prohibits or restrains him from dis charging his official duties or obligations. An order of that nature may perhaps be within the general inherent competence of an appointing authority when dealing with the Governmeni servant. The impugned order made under r. 3 of A.l.S. (D & A) Rules, 1959 on the other hand s,eriously affects some of the appellant's rights and privileges vesting in him under his conditions of service. To mentiQn some of the disabilities resulting from his suspension, he is illOt entitled to get his full salary during suspension, but is only to be paid subsistence allowance and in certain circumstances some other allowances : in order to be' entitled 110 the· subsistence allowance he is prohibited from engaging in anv other employ ment, business, profession or vocation ( vide r. 4) : the appel lant is not permitted to retire during the period of suspension : indeed, the impugned order specifically prohibits the appellant ewn from leaving New Delhi during the period of suspension, without obtaining the, oryvious permission of the Central Govern ment. The fact that these prejudicial consequences automatically flow from the impugned .order under the rules also lends support to our view that the clear and explicit language of r. 3 must not be so strained to the appellant's prejudice as to authorise an order of that disciplinary proceedings suspension on the mere ground A B c D E F G H P.R. NAYAK v. UNION (Dua, J.) 715 A against him are contemplated. The precise words of r. 3 are UU· ambiguous and must be construed in their ordinary sense. The draftsman must be presumed to have used the clearest language to express the legislative intention. The meaning being plain, courts cannot scan its wisdom or policy. In Tarak Nath Glwsh's case (supra) this Court's attention was also drawn to r. 12 of othe Central Civil Services (Classifica the Pre&ident tion, Control and Appeal) Rules, 1957 made by under the Proviso to Art. 309 of the Constitution which in express terms provided for suspension of the Government servant cOR c.:rned when, inter a/ia, "a disciplinary proceeding against .hiru is contemplated or is pending." This Court did not consider that rule to be of much assistance in construinir r. 7 of the A.I.S. (D & A) Rules, 1955 which rules were held to constitute a complete In our view the difference in the language used in the rele• code. vant rules dealing with suspension in the two sets of ruloes, namely, C.C.S. (C.C. & A.) and A.I.S. (D & A) Rules may not be con· sidered to be wh9lly irrelevant and unhelpful for discovering the intention of the draftsman in adopting difforent phraseology while dealing With othe same subject of suspension of Government ser vants of different categories, Rule 12(1) (a) and (b} of C.C.S. (C. C & A) Rules, 1957 is now replaced by r. 10(1 )(a) and (b) of C.C.S. (C. C & A) Rules, 1965 without any change languaire. Rule 12(l)(a) and (b) reads : "12. Suspension.-( 1) The Appointing Authority or any authority to wpich it is subordinate or any other authority empowered by the President in that behalf may place a Government servant under suspension- ( a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a c:ase airainst him in respect of any crimi nal ofl'P,nce is under investigation or trial. Just as the phraseology of r. 12 dealing with suspension in C.C.S. (C. C & A) Rules, 1957 has been retained in the corresponding rule bf 1965, the phraseology of r. 7(1)(a) and (b) dealing with suspension during discip!ii:ary proceedings in A.1.S. (D & A) Rules, 1955 has similarly been retained in the corresponding r. 3(1)(a) and (b) of' 1969. This retention of different phraseo loJtV in bi:>th 'these sets of rules does not appear to us to be wholly unintentional : on the other hand it suggests consistency of pur· P,OSe and continuity of n:gulation, tending to reflect the different legislative intentions on the question of scope and effect of rules dealine; with suspension in the two sets of rules. Coutl8 may legitimately-preSUll!e that the draftsman ftlll'l'ilit~ r. 3 0 )(a} and (b) of the 1969 tttl- ~fl ~tt illl, ws aware of. the exiS'!ence c D .I F G 716 SUPREME COURT REPORTS l 'L"''''J? O''R ... .;), ......... ;,J/..., of different ph;-aseology used in the rules dealing wi'th suspension in C.C.S. (C. C. & A.) Rules, 1957 and i965. Similarly the draftsman framing the C.C.S. (C.C. & A) Rules can legitimately be fixed with the knowledge of the different language used in the relevant rule contained in A.LS. (D & A) Rules, 1955. If with this knowledge the dra~tsman stuck to the different phraseology in these respective rules, then, can the Court not fairly assume that 1he actual words used in the different sets of rules were purposely selected with the object of expressing the legislative intention in the clearest and most precise manner ? But independently of this consideration we think that the plain language of r. 3 (1) (a) and (b) which c9ncerns us does not authorise suspension when disci plinary proceedings have not been initia!ted but are only contemp lated. Inci. Qentally, it may be pointed out that the Patna High Court, when dealing with Tarak Nath Ghosh's case(') also noticed r. 1706 (1 )(a) and (b) dealing with suspension of rail way servants. A Guide 'tO Discipline and Appeal Rules) wh~ch is in identical terms as r. 12(1) (a) and (b) of the <;.C.S. (C.C. & A) Rules, 1957. Needless •to add that we are also aware of another statutory rule [r. 40 (1 )(a) and (b) l of Railway Protection Force Rules, 1959 made by the Central Government under s. 21 of the Railway Protection Force Act, 1957 (23 of 1957) which pro vides for suspension of a member of the force "(a) wlNre an in vestigation into charges against him is contemplated or pendinj! or (b) where fl case against him in respect of any criminal offence is under investigation or trial." The existence of such rules only serves to further fortify our opinion alr~ady expressed on the plain language u~ed in r. 3(l)(a) and (b) which is by no means obscure Qr ambiguous. The different phraseology, in our view. is -Oesignedly used to express different legislative intention. We have a,lready said that on the view that we take it is un necessary to consider the other points raised on behalf of the appel learned lant. We may only add •that 1he contention of Attorney General that the appellant should be held to be estopped from urging that the date of his retirement could nO't be postponed beyond November 25, 1970 as h.e had expressly agreed •to extension of that date upto March 25, 1971 also need not be considered py us. A B c D E F G In the final result this appeal must succeed and allowing the same we. allow the writ petition and quash the suspension order In tne circums'!ances of this case there would be no order as to costs. Ray, J. This appeal is by certificate from the judgment dated 6 May, 1971 of the High Court of Delhi dismissing the appellant's application ooder Article 226 of the Constitution. H (I) r.L.R. (1966) 45 Patna 749 at 755. A B c D E F G H P. I\. N~YAK v. UNION (Ray,./.) 717 The appellant asked for a writ, .order, direction in the nature of. mandamus quashing the order of suspensiQll dated 23 March, 1971 and a tleclaration that the appellant retired from service Oin immune 25, Man:h, 1971 and further declaring the appelhjnt as against any action by the Governmell't and for fu.rther writs, orders, directions directing the respondent not to act in any miinner under or in furtherance of the order of suspension dated 23 March, 1971 and for a further declaration that Funda1nemal Rule 56(ff) is void and ultra vires. The appellant joined the Indain Civil Service on 24 November, In 1960 the appellant became the Managing Director of 1935. In the month of October, 1963 the appel Indian Refineries Ltd. Indian lant was the Chairman and Managing Director of Refineries Ltd. the appellaint In the month of January, 1965 bl)came Secretary in the Ministry of Petroleum and Chemicals. On 22 February, 1969 the appellant became Secretary, Ministry of Works, Housing and Urba\11 Development. The appellant after joining the Indian Civil Service arrived in India on 25 November, l CJ35 alld was to complete 35 years of service on 24 November, 1970. The completiQn of 35 years of se-rvice was under the r,ules the date of retirement of members of Indian Civil Service. On 23 November, 1970 the Central Govern ment made an order extending the service of the appellamt up to 25 March, 1971. On 23 March, 1971 there was an order of the Central Government suspeilding the appellant. This order was cWlkinged in the application in the High Court. 'Fhe facts preceding the order of. suspetiion are as follows. In 'the month of August, 1968 an enquiry into certain matter!I c0n neeted with the laying down of the Haldi<i-Barauni pipeline through the coal fields of West Bcn~al was entrusted to Shri N. S. Rao, central Yigilance Commissioner. The appellant on 20 An gust. 1968 wrote to Shri Rao that though the latter would lay down his ollice on 23 August, 1968 he had oft'ered to contillliue and complete the report of the enquiry in an honorary capacity and that the Government accept~,d the offer of Shrl Rao with thanks. The letter was sent by the appellaint after obtaining the prior approval of the Minister of Petroleum. On 21 August, 1968 Shri N. S. Rao wrote a letter to the appellant that he would complete the work in his individual capacity even after he had laid down his office as Central Vigilance Commissioner if the Government wanted him to do .so. Shri Rao. therefore, suggested that it would be better for l5-L643Su;CT/72 71S SUPREME COUllT REPORTS [1972] 2 S.C.R. the Government to say that he agreed to the Govemment request to complete the work. On 23 August, 1968 the appellant wIQte to Shri Rao confirming that the appeli3411 was in agreement with the position as explained by Shri Rao. It may be stated here that with the exceptiOlll of the first letter the entire correspondence between the appellant and Shri Rao did not bear any stamp of approval of the Minister. On 16 April, 1970 Shri N. S. Rao made a report and he did not give any finding adverse to the appellant. A • Meanwhile the Parliamentary Committee on Public Under takings had examined the Pipeline Division of the Indian Oil Cor poration and submitted its report to Parliament on 30 April, 1970. The Committee found first that the appellant who was at the mate rial time the Mainaging Director of the Indian Refineries Ltd. showed more concern for the contractor Bechtel's interest than for the Haldia-Barauni-Kanpur pipeline project. Bechtel Corporation was an American firm of Consulta.nts who were supervising the project. 1he second finding; was that the appellant was acting, on his own in his dealing with the co, nstruction contractors as well as the American consultants supervising the project in vital matters concerning the capacity of the pipelines, thus by-passing the autho rity of the Board oi Directors and Government. The third finding was that in several instances the appellaint had exceeded his auth'J rity available to him. Consequent on the report of the Parliamentary Committee on l'ublic Undertakings the Government of tndia decided to set up a one-man commission under the Commission of Inquiry Act, 1952 headed by Shri J. N. Takru, a retired Judge of the Allahabad High Court. The terms of reference were set out in the rcsolutio,n dated 22 August, 1970 setting up the commission. Broadly stated, the terms of reference included whether any payment to Bechtel was made in excess of the amount sanctioned by the Gover1nment; whe ther the induction of Bechtel into the project was ma/afide; whether Bechtel was shown undue favour, whether the appellant acted on his own by-passing the Board oi Directors in his dealings with Snam and Bechtel in vital matters concerning the capacity of the Haldia-Barauni-Kanpur pipeline; whether the General Manager aind the Managing Director of the Indian Refineries Ltd. were per functory and casual in dealing with an important communication dated 26 September. 1963 from Bechtels to Indian Refineries Ltd. mentioning the' design capacity of Haldia-Barauni pipeline; and also to determine whether there was loss to the public interest; whether there was any carelessness and negligence in discharge of responsibilities by Government a;nd the officials. The resolution of the Government app0inting the Commission stated that the Commission was to submit its report within a period of six months. c D E F G H P.R •. !llAYAK v. UNION (Ray, J.) 719 A • c B hi the month of October, 1970 the Government of India in the Ministry of Petrokum and Chemicals referred the matter to the Takru Commission for advice on ( 1) whether, and if so what, prima facie dtarges might be made against the appellant in connec tion with the report of the Parliamentary Committee on Public Undertakings; and ( 2) whether any other officer appeared to be involved in any of the charges which might be found as prima facie estabilished. Prior- to the communication by the Governme:nt of India on 17 October, 1970 to Shri J. N. Takru the Government had on 26 September, 1970 given a copy of the charge-sheet compris ing 9 charges drawn up against the appellant by the Ministry of Petroleum and Chemicals. On 7 November, 1970 the Govern ment of India intimated to Shri Takru that his task. was not limited to an examinati<J\11 of the charges handed over to him by the Gov ernment on 26 September, 1970 but he was also to suggest to Government whether as a result of the examination of the report any other charge or charges appeared to be prima facie made out for departmental action against the appellant. The original time fixed for tendering the report was the middle of the month of February, 1971 but sulbsequ~ntly the time was advanced to the middle of the month of J anuairy, 1971. Thereafter the Takru Commission embarked upon an enquiry into the charges against the appellimt. The charges were sent to the appellant on 16 November, 1970 and he was given time till 30. November, 1970 to submit his defence. The time was extended till 7 December, 1970. · The appellant su1:'111tted ·a written state ment in defence to those charges. By a Jetter dated 7 December. 1970 the appellant submitted a detailed explanation and .replies to the Memorandum of charges served on him by the Takru Com mission. By another letter -Oated 19/21 December, 1970 appellant gave· his supplementary replies to some of the allegations and again on 5 January, 1971 submitted to Shri Takru anotli~r representation. The appellant was heard in persQn on 4 Januaiy. 1971. On 13 January, 1971 Shri Takru submitted an interim report lo the Government recon:ling his fiudim:gs on the question as to whether there was any prima facie case agamst t,he appellant for a departmental enquiry into 14 charges framed against him. In the report Shri Takru came to the conclusion that barring Part ( d) of Charge III and Charge XIII, all the remaining charges against the appe11ant were prima facie established. On 23 Mar-ch, 1971 the Government of India passed an order of guspension. The ord1~r is set out hereunder : G H "Whereas disciplinary proceedings against Shri P. R. Nayak, JCS are contemplated; 720 SUPREME COUllT llErotlTS [1972} 2 S.C.R. AND· WHEREAS the President, aftc;r carefully con sidering the available material, and hailing regard to the nature of the charges against him and the circumstances of the case, is satisfied that it is necessary and desirable to place the said Shri P. R. Nayak under suspension; NOW THEREFORE, the President in exercise of the powers conferred bY clause (a) ol sub-rule ( 1) of rule 3 of the All India Services (Di$cipline and Appeal) Rules, 1969 and all other powers enabling him iJll that behalf hereby place the said Shri P.· R. Nayak under suspension with immediate effect until further orders; It is further ordered that during the period that this Ordc;1r shall remain in force, the said Shri P. R. Nayak shal! be paid such subsistence allowance as is admissible. under the rules and his headquarters shall be New Delhi which he shall not leave w_ithout obtai; xiing the previous permission of the Central Govemment. By order and in the name of the President Sd/- B. B. Lal Secretary (o the Government of India". The appellant filed an application under Article 226 of ~e Constitution in the Delhi High Court on 24 March, 1971. The filed an amended petition on 30 March, 1971. The appellant appellant prayed for a writ quashing the order of suspension and a declarat'iOn that the -appellant retired from servicp on 25 March, 1971 and a further declaration that the appellant is immune there after against any actiQn taken by the Government as there is no authority therefor under the applicable rules. The further reliefs that the appellant prayed for were to ,give the appellant full benefits of retirement from service available under the covenants and the Rules as guaranteed by Art\cle 314. The appell~nt also prayed for a declaration that Fundamental Rule 56(ff) is void and ultra vires the Constitution. In the petition the appellant made these allegations. The appellant is a;ll officer of the Indian Civil Service and is 'at present working as Secretary to the Government of India, Ministry ol Works, Housing and Urban Development'. According to Funda mental Rule 56(ff) the date of compulsory retirement of.the appel lant from the Indian Civil Service was 24 November, 1970. The appellant agreed to accept an extension of service by four months from 25 November, 1970. According to the order dated 23 Nov ember, 1970 the appellant is to retire from. service on 25 March, 1971. The appellant offered to the Qove!lnment of India to con tinue him in service for a further period ·till after the receipt of the ·report of the Commission of Inquiry set up by the Government of A • c D E F G H P. R, NAYAK V. UNION (Ray,].) 721 A Indra. The offer of the appeHant was not accepted. On the con trary, the order of suspension dated 23 Mareh, 1971 was served on the appellant. B c D E F G H On these allegations the appellant raised these contentions in the petition. First, the Government acted under Fundamental Rule 56(ff) and there was no order of suspension in existence on the date of compulsory retirement of the appellant. A member of the Indian Civil Service cannot be proceeded against in any disci plinary proceeding after the date of his compulsory retirement from service. Second, the order of suspension passed after the expiry of the date of compulsory retirement cannot prevent the appellant The order of suspension is from retiring on 25 March, 1971. repugnant to law, Third no disciplinary proceedings namely, inquiry had been initiated against the appellant. The order of suspension from service can be passed only in terms of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969. The provi sions of Rule 3 ( 1) (a) contemplate suspension of an officer against whom Government initiates any disciplinary proceedings. The order oJ' suspension merely stated that proceedings are contem plated. Therefore, the order is bad. Fourth, Fundamental Rule 56(ff) is discriminatory in character and violative of Article 14 of the Constitution. The High Court held that an officer of the Indian Civil Services could with· the sanction of the President be allowed to cont~nue to retain the post he was holding at the date of compulsory retirement for the maximum period of 5 years. As to the order of suspension the High Court relying on the decisions of this Court whi~h will be dealt with hereafter held that an order of suspension could be passed even before definite charges were communicated. The appellant's contention that Fundamental Rule 56(ff) which per mitted an officer under suspensio1n from retiring violated Atticle 14 was not accepted by the High Court. The appeUant in this Court repeated the submissions advanced in the High Court and raised additional contentions which were neither founded in the petition nor argued in the High Court. These additional contentions were first, that the date of compulsory retirement of the appellant was fixed under Fundamental Rule 56(f) and therefore there could not be an extension of service beyond the date of compulsory retirement. Second, assuming there was an extension there was in fact no order of extension of service for 5 years in accordance with the provisions of Funda mental Rule 56(f). Third, the Government placed the appellant under suspension by an order dated 23 March, 1971. The order o.f suspension is bad inasmuch as there was no order under Funda mental Rule 56 (ff) retaining the appeJlant in service while making the order of suspension. J 722 SUPREME C:OU&T ltEPORTS. (1972J 2 S.C.R. These new contentions do not appear ill the pleadings. Those contentiQlls were JlOt raised in the High Court. Ordinarily, this Court does not allow a party to canvass points. which are not men tioned in the pleadings or in the judgment. The reasons behhnd <this practice are two•fold. First, the opposite party is deprived of meeting such a case in the pleadings. Secondly, this Court is deprived of the benefit of a considered judgment of the High Court. B ;In view of the fact that the appellant was allowed eo make his submissions these will have to be considered. • Broadly stated, four questions fall for consideration.. First, .can the.re be an extension of service of an officer of the· Indian Civil :Sen'ice beyond the date of compulsory retirement ? Second, if there is an extension of service does such an extension of service under Fundamental Rule 56(f) have to be for a period of five years. Third, could there be an order of suspension in the facts and circumstances of the case unoer Rule 3 of the All India Services (Discipline . 8illd A~) Rules, 1969 when disciplinary proceed- ings had not been initiated and did not commence. Fourth, is any order of retention in service necessary within the meaning of Fundamental Rule 56(ff) at the time of passing of the order of suspension ? The appellaait's contention on the first question a& ta whether there could be an extension of service beyond the date of compul- sory retirement were these. First the date of compulsory retire ment is a fixed and irrevocable date which cannot be changed. The compulsory retirement of the appe.llant was fixed under Funda mental Rule 56(f) to be 35 years from the date of his arrival in India. He arrived in India on 25 November, 1935. Therefore, the date of <there could not be an exteµsion of service beyqn:d .®mpulsory retirement_µnder Fundamental Rule 56(f). Secondly, MSuming there could ~ an order of extension under the proviso 1o Fundamental Rule 56(f) there was in fact no order under the It was said that Fundamental Rule 56(0 consists of two proviso. SOJ>lll'ate parts. 1be first pan speaks of the date of compulsory ·retJrement. The proviso· which is the secQlld and · indepertdent part · · speaks of extension of servicll sanctioning retention of post for five years. The order dated 23 November, 1970 was as follows:- "The President is pleased to order under the proviso to F.R. 56(f) that the services of Shri P. R. Nayak, a member of .the Indian Civil Service, who completed 35 years of service on the 25th November, 1970 shall be extended upto the 25th March, 1971 ". In order to appreciate the appellant's contentions it is neces- sary t.o refer to Fundamental llule 56(f). Fundamental Rule 56(f) in the·pro.9Cntfonn.came into.force with effect from 21 July. c I:: G a P. R. NAYAK V. UNION (Rliy, J.) A

#1965. The previous corresponding Rule was Fundamental Rule 56(c) which came inlo force QD. 1 Jao, uary, 1922. ;prior to 19.~2 Article 565 of lhe Civil Service Regulations .was the ielevant i:egu• Jation. Article 565 (a) stated that 'after 35 )'.c;im;' sc; ryi.ce, coun.~g from the date of his arrival in India, an officer shall qot, except for special ,reasons, and wi'th tf\e siJl.Cti<m of the Secretary of State retain his office or be appointed to any new office; provided th11t, ii such .an officer has .held his office for less than Jive ye; trs,. ·.i\e may, for special .reasons, with .the sainctioned of the po.vernment of :India, .be permitted to .rc; tain his office until he has ·held it for five ;years. Article 565 of the Civil Service Regqlations ;was r~ed by Fimdamental Rules on l fal\U!lfY, 1922. F:um,1a- ~ .:;1~~ Rules 56(c) (i) ~hich came in place of Article 565 was "A member of the Indian Civil Service, J1Vho is not a judge of a Chief Court, must retire after 35 years' service counted from the .date of his arrival in India provided that if he ·has held his post for less than .five years, he may, with the sanction of the Gq\l,efl!Of General in Council be. pennitted to retain it 4ntil :he has held it for that period". The present Fundamental Rule 56(f) was ii; itrodqced in 1965 in plaoe of ·the .previous Fundamental Rule 56.(c)(i), Fundamental Rnle 56 (f) is as follows : - ",ff). A ,m.em~r of the Indian Civil Servi.c;e ,,qa!I .retire after thirty-five yc; ars' service <:Ol!IDtcd from the date.of his arrival in India; provided .!hat .if ·he has at tl)e e~d .Qi. ·~YiiXC .years' held his po&t for less tiµln ·fixe YC<jlrS, :J\e '.pill.)', ,with the sanction of .the President, Qe ·penl!,i~ :I!> i;etain his ·pDSt iJntil ,he has held ·it fQr five .)'.C;l\!S". iFbe contentiop on behalf of the appe\l;mt 11µ\t Jl .mCIJlber .of. '.f.lie ;Indian Civil Service on. COJillpletioti of -35 y<:ars' sei; vi~ -fr:om the.date.of his arrixal in India retires compulsorily !jlld ·thel;e ,Cll!l- langµage of. P.Qt>be any extension of service is opposed tf'UJ1dilmcntal Rule 56(f) itself. and is utterly inconsistqnt ·with ·the .jlfactice .and procedure of ,exil!llncies of service on -whictll .sc;i:vii;e ;F:undamcmtal l\lt; gi>};ltiqn -565 (.a), ·F~~l ,R.qje ·~( c)( i) ~ :the :P~llt 'Iiundl!me~l .Rule S6(f) all iIJdjcate thl\t a.member .of _!hjil l\t:1.d.i;u1 .Civil. Servi'<.C·m.ay !ifl'YC !Ul·CXtemsion of service:Qe):oqd theJ{ate.qf .c<~pqlsqry ,r~tiiement. tUnd~r ,I::~~l;ll JV,µ!e 56(£) ;i ~­ t~,of ttbi 1lndiqn ,Cixil.~ice ma.y·wi1!1 the s~ll.~\iop.Qf·\lle1P~­ .Jteirt b.e 1NtmiU¢ ,to retain. his ,post. ,Ruje .S6(f) .is ba&ed. Uistorically Civil .Ille J) E 9 ;H 724 SUPREME COURT REPORTS [1972] 2 S.C.R. Sanction of retention of post at the end of thirty-five years which is mentioned in Fandamental Rule 56(f) contains intrinsic authority for extension of service. The extension of service at the end of thirty-five years' service is inherent in Fundamental Rule 56(f). The appellant could 1110t show any rule or authority other than Fundamental Rule 56(f) for extension of service after thirty-five years' service. The order of the appeilant's extension of service is not a case of new employment after retirement. Nor is it a case of fresh contract of service. Any valid contract of employment after the date of compulsory retirement is to be in compliance with Article 299 of the Constitution. That is neither It is a simple case of extension of service the case nor the rule. under Fundamental Rule 56(f). There is no authority for saying that at the end of 35 years' service compulsory retiremont has happened and is complete and there can be no extension of It is incomprehensible as to how one can be permitted service. t.o retain the post one was holding at the end of 35 years' service if one has already retired 'compulsorily' at the end of 35 years' service. It was said on !:¢half of the appellant that Fundamental Rule 56(f) consists of two separate and independent part~ with the result that under the first part a member of the Lr.dian Civil Service retired after 35 years of service and the proviso according to fhe appellant was the second and independent part which dealt with sanction of the President pennitt~ng the officer to retain his post for five years. The proviso cannot be truncated as a sepa rate part of Fundamental Rule 56(f). The proviso and the preceding part hang together. Fundamontal Rule 56(f) is to be read in its entirety as an integrated whole. The proviso Fundamental Rule 56(f) speaks of end of thirty-five years. Thirty-five years' service is the subject matter of the entire Fundamental Rule 56(f). Fundamental Rule 56(f) means this. The Government has the right to retire a member of the Indian Civil Service at the end of 35 years' service. A member of the Indian Civil Service has also the right to retire after 35 years' service. The Govern ment however has the right to retain an officer after 35 years' service. The date of retirement is then extended. There is in fact no retirement of the officer from service. He still remains a member of the Indian Civil Service. The appellant's conten tioo that the date of retirement is irrevocably fixed is reading new content to Fundamental Rule 56(f). It is correct that the date of retirement is 35 years from the date of arrival in India of a member of .the Indian Civil Service. The Government in certain cases may permit an officer to retain his post beyond that date. In those cases in spite of the stated date of retirement it does not A B c D E F G H P. R. NAYAK V. UNION (Ray, J.) 725 A B c D E G H take place. It was said on behalf of the appellant that there is no provision for postponing the date of retirement. What is postponed is retirement and not the date. That is because after the date of retirement an officer is permitted to retain his post. The two parts of Fundamental Rule 56(f) namely the first part and the proviso draw sustenance from each other. The two are If the two are separated as independent indissolubly connected. provisions their meaning is lost and their applicability becomes impossibile. It was said on behalf of the appellant that the service of an officer after the date of retirement is not on a par with service before that date. This was ·illustrated first with reference entitlement to leave under Fundamental Rule g6 not being same, secondly, lapse of leave on the date of retirement, and, thirdly, that an officer after the date of retirement could not .have any promotion and therefore it would not be a continuous employ ment because the conditions of service would not be the same. There cannot be any question of promotion of an officer who is retained in a post after 35 years' service. Nor can it be said that lapse of leave or entitlement to leave will rob the officer of an extension of service. The extension of service or sanction per mitting an officer to retain his post at the end of 35 years is a special feature in the rule. It is not that an officer at that stage will have to look forward to promotion. As for leave whatever the leave rules will permit he will' be entitled to. Fundamental Rule- 86 speaks of leave in relation to the period before the date ol retirement and the period of being retained in service after the date of retirement. It cannot be said that the extension of service of the appellant was a new appointment or. a special contract apart from Funiia mental Rule 56(f). The appellant remained a member of service. That is the allegation of the appellant in the petition. The appellant enjoyed the benefits of service. The appellant himself asked for extension. The Government is right in the contention the appellant is estopped from challenging the extension. Qn behalf of the appellant it was said thal the appel lant's agreement to extension would not estop him from question ing the order ijecaus~: the Government did not indicate in what regard it acted to its disadvantage and further that the Govern ment could not have suspended the appellant in the month of November, 1970 because the Government had no evidence at that time. The appellant agreed to and took advantage of the exten sion. The Government acted upon that. The affidavit evidence on behalf of the-Government is that the appellant wrote a letter on 3 November, 1970 fo the then Cabinet Secretary stating that the appellant was wllling to accept an extension of servtce for 72~ SUPREME COURT REPORTS (1972] 2 S.C.R. about fow months from 25 November, 1970. The Government decided to grant such an extension. The order of the Govern ment dated 23 November, 1970 is alleged in the affidavit to be made pursuant to the letter datea 3 'November, 1970. The appellant cannot be allowed to approbate and reprobate. The extension. was asked for by the appellant to facilitate the enquiry by Shri Takru. The appellant in his letter stated there were allegations against him in respect of which he had not an opportunity of having a say. The appellant wanted an opportunity to explain his point of view and wanted an extension facilitate such cause. The appellant having invited the Govern ment to grant an extension cannot be permitted to turn around and say that the extension is bad. The appellant has furthermore not questioned the extension in the petition. On the contrary, the appellant has proceeded on the basis of extension and asked that the appellant retires from service on 25 for a declaration March, 1971. The Attorney General made it quite clear that the estoppel which the Government wanted to raise against the appellant was only with regard to Fundamental Rules 56(f) and 56(ff). The estoppel rightly raised against the appeUant in regard to Fundamental Rules 56(f) and 56(11') is that the order of suspension was passed at a time when the appellant was in service as a result of. being permitted by the Presidont to be retained in service for a period of four months pursuant to the appellant's agreement to an extension. The contention on behalf of the appellant that under Fundamental Rule 56(11') an officer who is lli!lder suspension on a charge of misconduct shall not be required or permitted to retire oa reaching the date of compulsory retirement and inasmuch as ·the date of retirement of the appellant expired on 25 November, 1970 the order of suspension dated 23 March, 1971 could not be passed under Fundamental Rule 56(11'). Fundamental Rule 56(ff) is as follows : - "Notwithstanding anything contained in clauses (a), (d} and (f) where an officer who is a member of the Indian Administrative Service or the Indian Police Service and who before becoming such member was a member of the Indian Police, is under suspension on a charge of misconduct, he shall not be requin,:d or permitted to retire on reach ing the date of compulsory retirement, but shall be retained in service until the inquiry into the charge is concluded and a final order is passed thereon by the competent authority". Indian Civil Service or the The submission on behalf of the appellant is that .Fundamental Rule 36(ff) can only be applicable before the date of compulsory A B c D E F G H A B c D E F G H P.R. NAYAK V. UNION (Ray,/.) 121 retirement. The words 'date of compulsory retirement' occurring, in Fu.ndamental Rule 56(11) are not used in any of the sub-rules in Fundamental Rule 56. The date of compulsory retirement relates to the end of 35 years of service from the date of arrival in India of an officer of the Indian Civil Service as mentioned in Fundamental Rule 56(f), It is only because in Fundamental Rule 56(f) it is said that a mem~r of the Indian Civil Service shall retire after 35 years of service counted from the date of his arrival in India that the words 'date of compulsory retirement' are used in Fundamental Rule 56 (II). is the consequence of an order of suspension. The question which therefore arises is whether the case of a member of the Indian Civil Service being permitted with sanction of the President to retain the post after 35 years of service can be brought within the scope of Fundamental Rule 56(11). When there is an extension of service as a. result of the sanction. is no by the President under Fundamental Rule 56(f) retirement. The service is continuous with such adjustments as to leave or promotion or posting as are permissible· or possible. To accede to the contention on behalf cf the appellant is to hold . that a member of the Indian Civil Service cannot be placed under sus~sion during the period of extension of service. The fa!lacy of the appellant's contention lies in not appreciating suspension is not unde:r Fundamental Rule 56(11). Fundamental Rule 56(11) It will be illogical to hold that a member of the Indian Civil Service will not be permitted to retire because the order of suspension is before the date of compulsory retirement whereas a member of the Indian Civil Service who is on exteosion of service can be permitted to retire even when an order of SUSR!lllsion has beerr passed. This is on the assumption that the or<ler of suspension is otherwise valid. The authority and power of the Government to suspend the appellant in the present case will be dealt with hereinafter. The date of compulsory retirement mentioned irr Fundamental Rule 56(ff} is· to receive a mea.ning in harmony "ith the various sub-rules of Fundamental Rule 56. On a read ing of the entire rule it is apparent that when the date of compul sory retirement is allowed to pass b&' an extension of service the words 'reaching the date of compulsory retirement' in Fundamental Rule 56(ff) will apply IP the postpon~ date of retirement because the actual date of retirement is shifted. A member of the Indian Civil Service receiving an extension has not in fact retired inas much as the Rules indicate that a member of the Indian CiviT Service has to resi811 and apply for annuity at retirement. A member of the Indian Civil Service does not cease to be a member of the service during the peftod of extension of service. ThetC"" fore, Fundamental Rule 56(tf) will apply to a member of ~ Indian Civil Service during the period of extensioe of his semcfh . ;. 728 SUPREME COURT REPORTS (1972) 2 S.C.R. The contention of the· Government is correct that the appellant is estopped from questioning the extension ot service asked for by him and sanctioned by the President. It, therefore, follows that if the order of suspension is validly passed during the period of .extension in service Fundamental Rule 56(ff) will apply. As to whether an order of retention of the appellant in service is required under Fundamental Rule 56(ff) during the period of suspension will be dealt with later on. The second question is if there is an extension of service under Fundamental Rule 56(f) what will be the period for such exten sion. Fundamental Rule 56.(f) states in the proviso that if a member of ·the India.n Civil Service has. at the end of thirty-five years' held his post for less than five years, he may, with ·sanctiOn of the President; be permitted to retain his post until he has ·held it for five years. The appellant became Secretary in the Ministry o{ Petroleum and Chemicals in the month of January, 1965. On 22 February, 1969 the appe!lant became Secretary, Ministry of Works, Housing and Urban Development. Therefore ·the contention of the appellant was that his extension should have been for a period of five years up to 21 February, 197 4 to enable bim · 'to retain that post'. With regard to the order passed on 23 November, 1970 whereby the services of the appellant were extended upto 25 March, 1971 it was said first that the order did not state as to what post the appellant held and secondly the order did :n'ot say that he was permitted to retain the post until be had held it for five years. It was thus contended that the ord~r was bad . . Fundamental Rule 56(f) which speaks of retention of post with the sanction of the President is not a matter of right. As far as a member of the Indian Civil Service is concerned it is a matter of discretion with the Government as to who will be aJ!owed to retain his post and for what period. The immanent ·idea in Fundamental Rule. 56(f) is that in cases where a member of the Indian Civil' Service at the end of 35 years' service has held his post for less than five ~ars the Government may permit him to retain his post until he has held it for five years. The word 'post' means in effect office. Fundamental Rule 56(c)(i) which cor responded to Fundamentai Rule 56(f) .used the expression 'post' and Article 565 of the Civil Service Regulations which was in -existence prjor to the coming into force of Fundamental Rules in 1922 spoke of 'office'. Fundamental Rule 56(f) does not refer to a tenure post There are no cadres in the Centre. Each State bas cadre posts and for each State there are senior posts under the Central Government. The appe!Jant did not hold a tenure post. The services of the appellant were extended for four months with 1he result· that he was permitted to retain the post he was huldffi!!- A B c D E F G H P. R, NAYAK v. UNION (Ray, J.) A B c 0 £ F G H In view of the fact that the<_ appellaii,\ was permitted by the President to retain his post the only question is as to the period for which he could be asked to retain his post. The Attorney General gave instances where members of the Indian Civil Service who on completion of 35 years' servi~a, were given extension.. All these instances illustrate that the period for which extension oi service was granted ranged from 1 month. and 22 days to 1 year Thest~ instances further indicate that the total and six months. period for which these officers held the post inclusive of the perio4 for which extension was given ranged from 1 year and 11 months. to 4 years 10 months and 27 days. Shri G. S. Bajpai was appointed Secretary-General of Ministry of External Affairs, Governinent of India on 27 January, 1947. He completed. 35 years' service on 24 November, 1950. He was.given an extension for one year and six months and held that post for 4 years 1 (} months and 27 days. Shri Vishnu Sahay who was appointed Cabinet Secretary, Government of India on 25 August, 1958 completed 35 year~' service on 6 ~ember, 1960. He was given, an extension for one year 4 monthS and 10 days with the result that he retained the post oi Cabinj:t Secretary for 3 years 7 months. and 22 days. Shri G. R. Karnath who was appointed Secretary., Planning Commission, Government of India on 22 April, 1965 completed 35 years' service on 20 November, 1966. He was. given an extensioo. of serviceJor 7 montlis and 11 days with the. result that he retained the post for 2 years 2 months and 9 days .. Shri N. N. Wanchoo, who was al.>£?inted Secretary to the. Govern~ ment of India, Ministry of lndnstrial Development on 13 March. 1967 completed 35 years' service on 23 Noyember, 1969. He was given an extension of service for 1 month and 22 days with the result that he retainr-d that post for 2 years ,10 months. an!I 2 days. Shri B. Sivaraman who was appointed Cabinet Secreta\iy on 1 January, 1969 completed 35 years' scrvi~ on 30 November; 1969. He was given an extension of service for 1 year wilh the result that he retained the. post for 1 year ·and 11 months. Shri B. B. Paymaster who was appointed Chief Secretary to the Gov' ernment of Maharashtra on 5 September, 1967 completed 35 years' service on 24 November, 1970. He was given an extensfotr of service for 6 months with the result that he retained the post for 3 years 8 months and 20 days. The appellant who was appointed Secretary, Ministry of Works, l!9using and Urban Development on 22 February, 1969 completed 35 years' service on 25 November, 1970. He was given an extensioo of service for four mon, ths with the result that hei was permitted to retain the post for 2 years I month and 4 d-ays. - The various instances of extension of service of the members. oi the lndian Civil Service on. which the Government relied indi cate these features. First, 1!he order of extension is of the same· 730 llUPKEllE COURT REPORTS [1972) 2 S.C.R. iJatteni.. A typical example of the order of extension of service is to the effect that "the President is pleased to order under the proviso to Fundamental Rule 56(f) that the services of a member of the Indian Civil Service who completes 35 years' service on . . . . . . . . . . shall be exteinded for a period upto . . . . . . . .. . :· Therefore, the order does not indiCate that the person concerncJ .is mentioned with reference to a particutar post. Secondly, these instances further establish that the exteinsion of s~rvice is in no .case for. five years. On the contrary, the total period of service inclusive of the period of extension in no case exceeds fiv.: years. Therefore, it follows that under Fundamental Rule 56(f) -extension C8111 in fact be for any period with the result that the total period inclusive of the extension does not exceed five years. Article 56S(a) of ihe Civil Service Regulations spoke of 'office' and thereafter Fundamental Rule 56(c)(i) and Funda mental Rule 56(f) spoke of 'post'. The word 'post' and its pre vious counterpart the word· 'office' mean position in service. the Indian Adiniriistrative Service (Cadre) Rules, 1954 cadre post means any of the posts specified under ite~ 1 of each cadr~ in the Schedule to the Indian Administrative Service (Fixation of In the 1955 Regulations 'Cadre Strength) llegitlatiQDs, 1955. posts are mentmned for each' State. In the Centre there is n~l <eadre. There are senior. posts. The members of the Indian Civil Service come and occupy senior posts under the Govenunent of 1ndia. Such offi_cers of th.e. Indian Civil Service who come and -occupy posts in the Centrai Government move from one Ministry to another. Therefore, at the end of 35 years' service when the services of a member of the Indian Civil Service are extended normally he assumes ·or retains that post. Post here will therefore mean the place and position in service held by him. The words "retains his ,posr mean first that he remains a member of the Indian 'Civil Service, and secondly, he is kept i•n that place or position and is allowed to remain there in service. The contention of the appellant that the appellant was entitled to an extension for five years. is against the terms of the rule<. ·ne extension can be for any time but it should not in any event allow a member of the Indian Civil Service to hold a post more than the period of 5 years inclusive of the period of extension. 'The appellant's contention will mean that every extension will be foi 5 years. That is against the term and spirit of the rule and against the practice and precedents in the service. Therefore. 1he second contention of the appellant fails. The third contention of the appellant is that the order of sus :pension is :bad 'because ;no disciplinary proceedings by way of A c D E F G H A B c D E F H P, R, NAYAK V. UNION (Ray, J.) 731 inquiry were commenced prior to the order of suspension. Rule 3(I)(a) of the AIIJndia Services (Discipline and Appeal) Rules, 1969 is as follows : - "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 proceed ings is satisfied that it is necessary or desirable to place under suspension lhe 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 pj; lcing him under suspension". The three features of the rule are these. The first is the auchority which places a member of the service under suspension. The second is the time when such order is made. The third is the person against whom the order is made. The authority under rule 3(l)(a) for placing a member under suspension is the Gov ernment which initiates any disciplinary proceedings. The words which initiates any disciplinary proceedings' are descriptive of the word 'Government'. The time when such an order is passed is when the Government is satisfied that it is necessary or desirable to .place under suspensk\Il the member of the servke. It is not that the ,Government can pass an order of suspension against any one. The person against whom an order can be made is a member of the service against whom such proceedings are started. Here again, the words 'against whom such proceedin~ are started' are descriptive of the words 'member of the service • There i.; no restriction on the power to suspend by making it dependent on the condition precedent of the commencement of articles of charge against the Government servant. inquiry Counsel on behalf 0£ the appellant .contended that 1[ Government would have power to place a mel\)ber of the ~ervic~ under suspension in the absence of conunencement or initiation of disciplinary proceedings by inquiry the power would be a~bi­ trarily used by the Government against an officer who was for some reason or other not in the good books of the Government or liked by the Government. This contantion cannot lie a conside ration to interpret a provision by aBQroaching the content of the power with 'the fear that power m1glfr be l\l;!used. There are The person remedies for abuse of powers by any authority. against whom power is used arbitrarily or malafide will_~ways ha'<e the right to come to a court of law for redress of ~rie­ vances. The courts of law will in the administration of :jUstice ·autho protect a person against any arbitrary action of rities. It was also submitted on behalf of the appellant that 732 SUPREME COURT REPOR.TS [1972) 2 S.C.R. considering to humiliate the order of suspension was made the appellant. It was not alleged that the order was made mala{ide. The Indian fact that the appellant happens to be a member of the Civil ~oervice will have no relevance the power or exercise oi the power of suspension. extent of As a matter of fact in the present case there are serious charges The Takru Commission and allegations against the appellant. has given a report that a prima fade case is established against the ~ppellant. The report was made early in the year 1971. It was submitted on behalf of the appellant that the order of suspension against the appellant was made lJ!y the Government without tak ing into consideration the affidavit filed by the Government before In the affidavit filed by the appellant in the Takru Commission. the High Court .it was alleged in paragraph 27 that in the affidavit filed before the Commission the Government U{Jheld the deci.sion suspension taken by the authorities and therefore the order of against the appellant did not have any basis. There wa; no alle gation that the Government had not considered the affidavit. No opinion need be expressed on the nl.erits and demerits of the rival cases contained in the affidavit evidence before the Takru Com m1ss1on. Those allegations and defences are within the province of the inquiry. The affidavit evidence in the petition filed by the appellant is that the Government considered the matter. The order dated 23 March, 1971 indicates that the President after carefully considering the available material and having regard to the nature of the charges against the appellant and the circum stances of the case is satisfied that it is necessary and de.;irable to place the appellant 1\114er suspension. Therefore, the satisfaction of tbe President is established by objective consideration of •he materails. Counsel on behalf of the appellant contended th1'! the power o.f suspension was in aid of disciplinary proceedings and therefore suspension could be only after initiation and during the pendency of disciplinary proceedings. It was said that disciplinary proceed in11s were i11itiated and commenced only ~ giving the Govern ment servant 'articles of charge' for submission of defeuce before the inquiring ·authority as mentioned in Rule 8 of the All Indb Services (biscipline and Appeal) Rules, 1969. Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 is under the general heading of s-uspension during disciplinary proc.,aedings. There are seven sub-rules in Rule 3. Under the first sub-rule which forms the subject matter of the present appeal the Govern ment which initiates any disciplinary may pass an order placing ~ member under suspension when the Government is satisfied that it is necessary to place under suspension the member agaimt wh<im such proceedings are started. There are two other sub-rules in Rule 3 to show that when criminal charges and investigations or A B c D E F G H P.R. NAYAK V. UNION (Ray, J.) 733 A B c trial are pending against a Governmeni servant or when he is detained in official custody for more than 4~ hours he wi)l be deemed to be under suspension. These sub-rules establish that the power of suspension is exercisable in instances othe; inquiry under Rule 8. A criminal trial comes later on. But suspension takes place earlier than the trial during the investiga tion. It is really the gravity of the charge which will weigh in ordering suspension. Rule 3(l)(a) does not say that the Gov- cr, unent which has initiated disciplinary proceedings may pass an order of suspension. Rule 3(1) (a) doe~ not say that a member againsi whom such proceedings have been started cau be placed under suspension. On the contrary the words 'which i!litiates any disciplinary proceedings' in relation to the Government and the words 'against whom such proceedings are started' in. relation to a member of the Service indicate that the .initiation of disdplinary proceedings in the form of inquiry into charges is not the pre· requisite of an order of suspension. D E F Under Rule 3 (I)( a) the power of the Government is to place a member under suspension when it is satisfied that it is necessary or desirable to place a member under suspension. A prima fac1e case has been estab[ished as a result of the report of the Takru Commission. The Government has cQilSidere_d that. Discipli nary proceedings are c0ntemplated. That is the bash of the In Rule 3 it is said that 'having regard to order of suspension. the naftirc of the charges and the circumstances in any case' the Government may pass an order. The words 'nature of the charges' 1nd the circumstances in any case in Rule 3 are different from the prccedure laid down in Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969 for imposing major penalties. · Under Rule 8 when it is proposed to hold .an the disciplinary authority shall draw up the substance of the imputation of mis conduct or misbehaviour into defulite and distinct articles .of charge and a statement of the imputation of misconduct or mis behaviour in support of each article of charge is also 10 be drawn up. A copy of the article of the charge is to be delivered to the member. It was said by counsel for the appellant that the words 'n.lture of the charges' in Rule 3 and 'articles of charge' in Rule 8 rnca,1 the same thing. Rule 3 is of much wider amplitude inas much as the words used in Rule 3 'nature of- the charge and the circumstances in any case' show that the area is more ample. The two qualifying words 'nature' and 'circumstances' accentuate the difference between Rules 3 and 8 in regard to the time and the manner of their operation. The case that is contemplated H Rule 3 is the prima facie case and the nature of charges in that case. The explanation to Rule 6 of the AH India Services O?eath'c11m-Retirement Benefit) Rules, 1958 states that a disci plinary proceedi, ng shall be deemed to be instituted when inquiry G 1~1643SupCT/72 734 SUP}lBME COURT REPORT~ [1972] 2 s.c.R. charges framed against the pensianer are issued to him, or, if he has been piaced under suspension from an earlier date, on such It was said that Rule 6 which speaks oi recov~ry from date.. pension on any pecll:Iliary loss caused to the Central or the State Government from a pensioner was not applicable to members of to Government tne Indian Civil Service, But Rule 6 applies servants who can be placed under suspension under Rule, 3. It will be illogical and incongruous to hold that in case of other Government servant disciplinaiy proceedings commenced when he is placed under suspension but it will be not so in the case of a l'jl.ember of the Indian Civil Service. Disciplinary proceedings are wider in import than inquiry b~a Board for finding facts aad ascertaining. the truth. That is why· suspension interim measure in aid of disciplinary proceedings and is in itself a disci plinary matter so that the officer concerned does not gain custody or control of papers or take any advantage of position er power in service. is an stated In S. Govinda Menon v. The Union of India & Anr. (') allega tions were made against a member of the Board of Revenue. The State Government placed him under _suspension under Rule 7 of the All 1ndia Services (Discipline and Appeal) Rules, 1955. The present Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 came into existence in place of Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955. Rule 3 is in identical language. In Govinda Menon's(1) case it was con tended' that the order of suspension was bad because 'there was no fonnal order of the Government for instituting disciplinary pro c.:edings. The order of that preliminary suspension inquiries had shown prima facie that the officer is guilty of corrup tion, nepotism and other irregularities of grave mture. The order further indicated these features. The detailed enquiry into the charges was in progress. The evidence was to b~ collected. In the interest of the proper conduct of the enquiry it was neces sary that the officer should not be allowed to continue in that "'The officer is suspended till the disciplinary proceedings post. initiated against him are completed··. This Court 1.lll reading the order of suspension held that it showed that the Government had accepted the proceedings and had decided to ,go forwai:d with the disciplinary proceedings and there was no formal order necessary to initiate disciplinary proceedings. This Court also held in Govinda Menon's( 1 ) case that the word 'charges' occurring in Rules 5(2) and 7 of the 1955 Rules corresponding to Rules 8 and 3 of tile Ali India Serv_ices (Discipline and Appeal) Rules, 1969 did not have the same meaning. The word 'charges' in Rule 5 ( 2) of me 1955 Rules corresponding to Rule 8 of the 1969 Rules (I) [\9671 2 S.C.R. 566. A B c D 'E F' G B A B c D E F G H P. R. NAYAK v. UNION (Ray, J.) 735 rertrs to definite charge or charges which are reduced into writing whereas the words 'having regard to the nature of the charges and the drcumsta~es in any case' occurring in the present Rule 3 and the correspondmg. Rule 7 of the 1 ?55 Rules have. a wider meaning denoung accusat10n -or 1mputat10ns. The ruling in Govinda Menon's(') case is that there is power of the Government to sus· pend. a member when disciplinary proceedings in the shape of mqmry are contemplated and the order of suspension in the back· ground of charges a.iJ.d circumstances amounts to initiation of disciplinary proceedings. In the case of Government of India, Ministry of Home Affairs and Ors. v. Tarak Nath Ghosh(') this Court had to consider .whe ther suspension of a member of the Service would only be ordered after definite charges had been communicated in terms of the old Rule 5 (2) which corresponds to the pres~nt Rule 8 or whether the Government was entitled to place an officer under suspension even before that stage had been reached after the preliminary investiga tion had been made into the conduct of the officer concerned follow ing allegations of corrupt practice levelled against him. The ear lier decisions of this Court were referred to and thereafter it was said 'Merely because the order mentioned that disciplinary proceed ings 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 0J suspension. In substance disciplinary pro ceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and fol)owed 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 for departmental proceedings had been made out tbe fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rule~ of ser vice an order of suspension may be made when 'disciplinary proceedings were contemplated' should not lead us to take the view that a mel)lber of an All India Service should be dealt with, differently. The reputation of an officer is equally valuable no matter whether he belongs to All India Service or to one of a humbler cadre. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be difference in regard to this matter as between a member of an Al! India Service and a member of :a State Service or a Railway Service". (I) [1967] 2 S.C.R. 566. (2) AIR. 1971 S.C. 823. 736 SUPREME COURT REPORTS (1972] 2 s,c:R. These decisions indicate the reasons for suspension of a mem ber of the Service against whom disciplinary proceedings are con t~mplated. The iJllstitution on inquiry procee, dings and the impo sition of penalty are dealt with in separate Rules in the All India Services (Discipline and Appeal)Rules, 1969. Rule 7 thereof speaks of authority to institute proceedings and to impose penalty. Rule 8 speaks of procedure of inquiry for imposing major penal ties. Rule 9 speaks of action on the enquiry report. Then there are Rules with regard to orders in the light of the enquiry and from such orders. These provisions and in particular appeals Rule 3 indicate the different stages of disciplinary proceedings. There is no formal order necessary for initiation of disciplinary proceedings. The order of suspension in the context of prelimi nary investigation and a prima facie case against the Government servant is appropriately an initiation of disciplinary proceedings and is a step in aid of formal inquiry which will be held imposition of penalty. In Champak/al Chimanlal Shah v. The Union of lndia(1) this Court made certain observations on the meaning of disci plinary proceedings 'and said that where it is intended to take action by way of punishment what usually happens is a preliminary enquiry is first held in connection with the alleged In the preliminary enquiry the explanation of the misconduct. Government servant is . taken and documentary and even oral evidence is considered. When such a preliminary enquiry makes out a prima facie case against the servant concerned, charges are then framed against him and he is asked to show cause why disci The Enquiry plinary action should not be taken against him. Officer is appointed. This is known as the formal departmental enquiry into the conduct of. a public servant. When the enquiry is uver the Enquiry Officer makes a report. The Government makes up its mind on the enquiry report. The Government then commumcates a copy of the enquiry officer's report and its own conc]J.ision. It therefore follows that after there is a prima facie case against the servant coneemed as a result of a prelimina, ry enquiry he is asked to show cause. In the present case the Takru Com mission made the preliminary enquiry. The Takru Commission gave the report. The Government considered the report. TIJ.e appellant appeared before the Takru Commission. The appel lant made submissions. The Government considered the nature of the charges and the circumstances of the case and placed the appellant lllilder suspension. Therefore there is a preliminary enquiry. Disciplinary proceedings are under Rule 6 of the All India ~ervices (Death-cum-Retirement Benefit) Rules, 1958 also deemed to be initiated by placing a Government servant under suspension. Rule 6 apart, the order of suspension set in motion disciplinary proceedings which have different stages. c D E F G H A I D P. R. NAYAK V. UNION (Ray, J.) 737 Again, in the case of R. P. Kapur v. Union of India & Anr. ( 2 ) this Court considered the suspension of a Government servaint on It was the ground that a criminal case was pending against him. contended in that case that suspension pending a crimi:nal proceed ing could not be said to be a disciplinary matter. That argument It was said that suspension is of two kinds. It was not accepted. is either a punishment or an interim measure pending a depart mental enquiry or pending a criminal proceeding. Suspension as a punishment is a disciplinary matter. Suspension peinding a de partmental enquiry or pending a criminal proceeding was also held to be comprised within the words 'disciplinary .matters' within the It was then said "Take the case of sus meaning of Article 314. pension pending a departmental enquiry. The purpose of such suspension is generally to facilitate a departmental enquiry and to ensure that while such enquiry is gonig on-it may relate to serious lapses on the part of a public service-, he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the ~nquiry. In such a case s_us~ension pending a departmental enquiry cannot be but a matter mt1mately relattd to disciplinary matters'. In the case of a member of the Indian Civil Service cannot be any departmental proceedings after retirement whereas in the case of other Government servants there can be. But that is not the reason for an order of suspension. This is only to show that when the appellant wanted a:n extension he wanted an opportunity to defend himself against the charge. When counsel for the appellant submitted that the appellant felt humiliated at the order of suspension it has to be said that if the appellant could have been punished during the period o.f extension of service the're could equally have been an order of suspension to facilitate an It cannot be brushed aside that a Commission headed enquiry. by a Retired High Court Judge was set up to enquire into serious charges against the appellant. The Commission found that not only charges which had been levelled by the Government against the appellant but also other charges as a result of the preliminary enquiry were prima facie established against the appellant. G H First disciplinary proceedings are not defined in the Rules. The Government _is the disciplinary authority. The Government is the authority which initiates disciplinary proceedings. When charges of misconduct are made against a Government servant the If the Government is Government makes a preliminary inqniry. satisfied that there is a prima facie case the Gove~nment cannot then remove the Government servant from service. There will have to be an ~nquiry. Before the inquiry is started the Govern ment may find it necessary in the circumstances of cases to place (I} [1964] 5 S C.R. 190. (2) [1964] 5 S.C.R.431. 738 SUPREME COURT REPORTS [1972J 2 s.c.R. a Government servant under. suspension. Having regard to the charges the presence of the Government servant ln the Department where he worked may embarrass and impede the full investigation and collection of evidence. In these circumstances of a case the Government may suspend a Government servant. The inquiry will take place afterwards. But till then an order of suspension may become necessary. The entire gamut of disciplinary proceed ings will therefore- embrace the preliminary inquiry into allegations, a prima facie opinion of the Government as a result thereof and the formal enquiry giving the Govemmemt servant full opportunity to defend against the articles of charge. Secondly, disciplinary pro ceedings cover the entire range of proceedings from the preliminary investigation into complaints against the honesty and conduct of a Government servant to the final order of punishment after inquiry under Rule 8. Thirdly, no formal order of initiation of discipli nary proceedings is contemplated in the Rules nor is a formal order necessary when the overt act of order of suspension establishes the initiation of disciplinary proceedings in the entire context of facts. Fourthly, suspension is not an inscrutable matter. It speaks, it acts and it affects. It is a part of disciplinary proceedings. Fifthly, there can be suspension of a Government servant after a preliminary investigation when disci plinary proceedings in the form of departmental inquiry are con templated. This suspension is not a punishment but a disciplinary matter in aid of disciplinary proceedings. Suspension is ordered to facilitate free investigation and collection of ,evidence. It may be that the Government may not after suspension order a depart mental inquiry if there is not adequate evidence. Again, where suspension takes place during investigation of a criminal case there may Cle a departmental enquiry even after· conviction or acquittal. The departmental enquiry is for inflicting punishment. Suspension is not so. That is why if.there is favourable report after a depart mental inquiry the Government servant may obtain restoration of reduction of pay during the period of suspension. Departmental proceedings, disciplinary proceedings, preliminary enquiries for setting up an authority under the provisions of the Public. Servant Inquiry Act 1950 are all variants of disciplinary proceedings. It is a disciplinary matter. B c D E F Therefore, in the facts and circumstances of ·the present case G the order of suspension was properly and validly made. Discipli nary proceedings start when the Government decides to go ahead with holding an enquiry. The Government set up a Commission headed by Shri Takru. The suspension was an express act on the part of the Government in the wake of the preliminary enquiry and the report made qy Shri Takru. H The fourth contention on behalf of the appellant was that the order of suspension was bad inasmuch as there was no order under 'C' P. R. NAYAK V. UNION (Ray, J.) 739 A B c D E F G H Fundamental Rule 56(ff) requiring the appellant not to retire. At the outset it has to be borne in mind that the order of suspension is not under Fundamental Rule 56(ff). The order of suspension is under Rule 3 of the Aff India Services (Discipline and Appeal) Rules, 1969. Fundamental Rule 56(ff) is a Rule laying down the consequences ol an order of suspension. When a valid order of suspension has been made as in the present case during the period of extension of the services of the appellant it could not in the same breath be said that he is not permitted to retire. That is the con comitant of the order of suspension. Furthermore, the language of Fundamental Rule 56 (ff) .is that notwithstanding anything con tained in clauses (a), ( d) ·anq (f) a member of the Indian Civil Service who is nnder suspension shall not be required or permitted to retire. Therefore, Fundamental Rule 56(ff) itself cont.ains the words forbidding retirement of a member placed under suspension. Fundamental Rule 56(ff) means these things. First, Fundamental Rule 56(4') is deleted from coming into operation during the period of suspension inasmuch as the \\ ::irds used are 'notwithstanding anything contained in clause (f) '. Secondly, language of Fundamental Rule 56(ff) is that he shall not be required or per mitted to retire. The language is not that he shall be required not to refoe. In other words, retirement is negatived by the positive effect of suspension. Thirdly, the entire consequence of Funda mental 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 Coun in State of Punjab v. Khemi Ram(') stressed the importance of passing an order of suspension where a· disci plinary enquiry could not be concluded before the date of retire ment. 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. It was said on behalf of the appellant that Fundamental Rule 56(ff) occurred in a Chapter headed 'Compulsory retirement' and It was the word 'compulsory' was removed sometime in 1969. therefore said that Fundamental Rule 56 (ff) which 'did not permit a Government servant placed qnder suspension to retire was in the nature of punishment. The deletion of the word 'compulsory' was necessitated inasmuch as Fundamental Rule 56 regulated not only cases of compulsory retirement of Government servants in public interest prior to the attaining of the age of superannuation but also of Government servants afte~ attaining the age of 50/55 years or rendering 30 years' service as the case might be. That is why the headi1ng became 'Retirement' instead of 'Comoulsorv Retiremenf to be a correct reflection of the llrovisions. The•efore. when an order of suspension was made the mandate of Fundamental Rule (i)['970]z SCR. 6fl:,-- 740 SUPREME COURT REPORTS ( 1972] 2 S.C.R. 56 (ff) became effective and placed an embargo on retirement. If an order of suspension were made before. the appellant completed 35 years oi. service the order of suspension could a fortiori bje made while the· appellant was in the enjoyment of an extension of service. The result of the order oi. suspension is to suspend the retirement. The prohibition against retirement is embedded in Fundamental Rule 56 (ff). Therefore, no separate order is required or necessary to the effect that the appellant shall not be required or permitted to retire could be made under Fundamental Rule 56(ff). In 1962 Fundamental Rule 56(d) was omitted. The last contention on behalf of the appellant was that Funda .mental Rule 56(ff) infringed Article 14 .. The counterpart of Fundamental Rule 56(ff) was Rule 56(d). Fundamental Rule 56( d) ~ame into existence in the month of November, 1946. The gist of Fundamental Rule 56 ( d) is that notwithstanding anything contained in clauses (a), (b!) and (c) a Government servant under suspension on a charge of misconduct shall not be required or per mitted to retire on reaching the date of compulsory retirement but shall be retained in service until the enquiry into the charge concluded and a final order is passed thereon by competent autho In 1970 rity. Fundamental Rule 56(ff) came into existence. It.is in the same language as the previous Fundamental Rule 56(d) as far as mem bers of the Indian Civil Service are concerned. It was said on behalf of the appellant that comparison of Article 35 lA of the Civil Service Regulations and Fundamental Rule 56(ff) indicated that Fundamental Rule 56(ff) offended Article 14. fallacy in the appellant's contention. The members of the Indian Civil Service are governed by their Regulations and under Article 314 of the Constitution it is impermissible to deprive them of their special _privileges. Article-35 lA of the Civil Service R~gu\at~ons was rehect on by the appellant to show that there was d1scnmma tion against the members of the Indian Civil Service inasmuch as under Civil Service Regulations 35 lA a Government servant against whom disciplinary proceedings w.ere pending could be per mitted to retire. Fundamental Rule 56( d) applied to the members of the Indian Civil Service prior to '{he Constitution and was a rule upto 1962 when it was deleted. Fundamental Rule 56(d) was not in existenc.e upto 1970. All that happened in 1970 was to restore Fundamental Rule 56( d). There are no rules under which departmental proceed}ngs can be instituted against the members of the Indian Civil Service after their compulsory retirement. The members of the Indian Civil Service have other rights and privileges which are not available to members of the Indian Administrative Service; The restoration of Fundamental Rule 56(d) by inserting Fundamental Rule 56 (ff) cannot be said to be an infraction of Article 14. That Rule governed the members of the Indian Civil There A B c D E F G H P. R, NAYAK V. UNION (Ray, J.) 741 A. B c D Service upto 1962. For SOl!le reason or other the rule was not in use. Fundamental Rule 56(ff) was a mere restoration of the rule. Another contention which was advanced on behalf of the appellant was that under Rule 6 of the All India Services (Death cum-Retirement Benefit) Rules, 1958 an officer to whom the rule applied was merely subjected to a loss of pension whereas appellant was prevented from retiring and was not permitted to leave his headquarters and, he could also be dismissed or removed from service whereas the other officers governed by t4e All India Services (Death-cum-Retirement- Benefit) Rules, 1958 eould 'l!Ot suffer such disability. There are some differences between members of the Indian Civil Service and the members of the All India Services. The differences also indicate that there are special rights and privileges of the members of the Indian Civil Service: They are treated separately in many respects. The appellant's insistence on the right to retire will completely nullify any disci plinary proceedings once the retirement takes into effect. That is why the. appellant was placed under suspension. There is no violation of Article 14: The contentions of the appellant fail. The appeal is therefore dismissed. Parties will pay and biear their own 'Costs. ORDER J!l In accordance with the opinion of the majority, the appeal is allowed and the suspension order is quashed. There will be no order as to costs. V.P.S.