JUDGMENT V.M. Sahai and Sabhajeet Yadav, JJ.
1. Feeling aggrieved against the order dated 21.7.2003 (Annexure-5 of the writ petition) passed by State Government, whereby while working on the post of Veterinary Officer in Animal Husbandry Department of the Government the petitioner was placed under suspension in contemplation of disciplinary inquiry against him, the petitioner has filed above noted writ petition.
2. The facts in brief have material bearing on the question in controversy involved in the case are that the petitioner was appointed as Veterinary Officer in Animal Husbandly Department of the State Government on 11.2.1991 after due selection by U.P. Public Service Commission. During the service he was transferred at different places from time to time in the period; from July 1997 to -9.7.2003. .On 30.6.2003 the petitioner was transferred from Mobile Unit Azamgarh and posted as Veterinary Officer, Sahaar, district Auraiya. In pursuance of which he was relieved from Azamgarh on 9.7.2003 and joined at the office of Chief Veterinary Officer, Auraiya/Etawah on 10.7'.2003. According to the petitioner, his work and conduct through out his service career has been found fully satisfactory and no cause of complaint has ever been arisen against his work and conduct during the aforesaid period. Surprisingly enough he was placed under suspension by the Government vide order dated 21.7.2003 in contemplation of disciplinary inquiry against him on the allegation of defiance of order of superiors and Working in arbitrary manner failure to achieve target of prescribed policies and not working be fitting to the post inasmuch as using of vulgar language against the other officials while working as Veterinary Officer, Bachat Ekai, Azamgarh. The petitioner has challenged the aforesaid order of suspension mainly on the ground that allegations mentioned in the impugned order are vague and not serious warranting impugned action taken against him.
3. A detailed counter affidavit has been filed on behalf of State wherein mainly in para 6, 9 and 12 an attempt has been made to justify impugned state action taken against the petitioner by precisely making averment that during the posting of petitioner in Azamgarh Mobile Unit there were a lot of complaints regarding arbitrary functioning and disobeying the orders of superior officers inasmuch as allegations against the petitioner of misbehaviour with officials and also with the superior officers of the department. For ready reference para 6,9 12 of counter affidavit is quoted as under:-
"6. That in reply to the contents of paragraphs 8,9,10 and 11 of the writ petition it is stated that there are many complaints against the petitioner. It is further stated that during the posting of the petitioner at Azamgarh Mobile Unit there were lot of complaints regarding irregular functioning and not obeying the orders of the superior officers against the petitioner. It is further submitted that the petitioner also used to misbehave the officials, and consequently disciplinary proceeding was directed to be initiated against the petitioner and he was also placed under suspension as will be evident from annexure-5 of the writ petition.
9. That in reply to the contents of paragraphs 15 and 16 of the writ petition it is stated that the petitioner was transferred from Mobile Unit, Azamgarh to Sahar Auraiya as per Scheme of the State Government in Public Interest. However, his suspension has been done as he misbehaved his superior officers, not obeyed the orders of his superior officers and also for misbehaving the officials.
12. That the contents of paragraphs 20,21,22 and 23 of the writ petition are wrong and denied. In reply it is submitted that work and conduct of the petitioner was not found satisfactory and as such adverse entry was made in his character-roll for the year 2001-02. It is further stated that as there were lot of complaints against the petitioner and his behaviour was also not found satisfactory, consequently he was placed under suspension and departmental enquiry is being initiated against him. It is further stated that under the departmental proceeding the charge sheet will be served against him at an early date.
4. We have heard Sri Ram Niwas Singh, learned counsel for the petitioner, and learned Standing counsel appearing for the respondents and also perused the records. Since the necessary affidavits have been exchanged between the parties and case was ripped for final disposal, with the consent of learned counsel for the parties, therefore, the case has been heard for final disposal.
5. The thrust of the submission of learned counsel for the petitioner is that the allegations mentioned in the order of suspension are vague, false and flimsy in nature, even if assumed to be correct for the sake of argument the same do not constitute misconduct of such a serious nature warranting any major penalty against the petitioner so as to enable the respondents to place the petitioner under suspension in contemplation of disciplinary inquiry against him. In support of his submission he placed reliance upon the reported decision of a Division Bench of this Court rendered in Ram Dular Tripathi v. State of U.P. and Ors., 1997 (2) Alld. Civil Journal, 1416. Contrary to it learned Standing Counsel has submitted that in given facts and circumstances of the case since the order of suspension has been passed against the petitioner in' contemplation of disciplinary inquiry against him, thus the same cannot be said to be punishment and cannot be called in question before this Court under Article 226 of the Constitution of India.
6. Having regard to the rival contentions and submissions of the learned counsel of the parties, a short question arises for consideration as to whether the petitioner can be placed under suspension on the allegations mentioned in the order of suspension and/or as to whether in given facts and circumstances of the case, the same is justified or not?
7. At the very out set it is necessary to point out that while entertaining the writ petition a Division Bench of this Court on 31.7.2003 has directed the learned Standing Counsel to file reply within a period of two weeks along with a copy of charge-sheet/proposed charge-sheet against the petitioner and no interim order either staying the order of suspension or staying the disciplinary inquiry to be held against the petitioner has been passed by this Court during the pendency of the writ petition but till now neither any charge-sheet has been filed by the respondents alongwith counter affidavit nor the Court has been informed regarding the issue and service of such charge-sheet upon the petitioner for holding any disciplinary inquiry against him and a period of more than two years have been passed since than the petitioner is under suspension. Thus it is also a case of keeping the petitioner under suspension without holding any disciplinary inquiry against him.
8. Before dealing with the rival submissions of learned counsel for the parties it is necessary to examine the law regarding suspension of government servants. In this regard it is necessary to point out that petitioner is government servant and provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999 herein after referred to as new Rule of 1999 are relevant rule dealing with the matter of discipline including suspension of government servant of State of U.P. Rule 4 of the aforesaid rules deals with the suspension as under:
"4. Suspension.- (I) A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority:
Provided that suspension should not be resorted" to unless the allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty:
Provided further that concerned head of the Department empowered by the Governor by an order in this behalf may place a Government servant or class of Government servants belonging to Group 'A ' and 'B' posts under suspension under this rule:
Provided also that in the case of any Government servant or class of Government servants belonging to Group 'C' and 'D' posts, the appointing authority may delegate its power under this rule to the next lower authority.
(2) A Government servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may, at the discretion of the appointing authority or the authority to whom the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to that charge.
(3) (a) A Government servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority competent to suspend, with effect from the date of his detention ion, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty eight hours.
(b) The aforesaid Government servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it.
(4) Government servant shall be deemed to have been placed, as the case may be, continued to be placed under suspension by an order of the Authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed consequent to such conviction.
Explanation.- The period of forty-eight hours referred to in sub-rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, interment periods of imprisonment, if any shall be taken into account.
(5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions:
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if he was not under suspension, he shall, if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the appointing authority on and from the date of the original order of dismissal or removal:
Provided that nothing in this sub-rule shall be construed as affecting the power of the disciplinary authority in a case where a penalty of dismissal or removal in service imposed upon a Government servant is set aside in appeal or on review under these rules on grounds other than the merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension pending further inquiry against him on those allegations, so however, that any such suspension shall not have retrospective effect.
(6) Where penalty of dismissal or removal from service imposed upon a Government servant is set aside or declared or rendered void in respect of or by a decision of a Court of law and the appointing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are claimed or their particulars better specified or any part there of a minor nature omitted-
(a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal;
(b) if lie was not under such suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original, order of Dismissal or removal.
(7) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the ' authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct t hat the Government servant shall continue to be under suspension till the termination of all or any of such proceedings.
(8) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority.
(9) A Government servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to Subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Financial Hand Book, Volume-11, Parts II to IV."
9. From a bare reading of. various provisions contained in the different sub-rules of the aforesaid rule, it is clear that although there are different situations envisaged in the aforesaid provisions of rule under which a government servant can be placed under suspension or shall continue to be under suspension but we need not to embark on the inquiry of all the provisions contained under Rule-4 of the aforesaid rules rather we have to confine our scrutiny only with regard to the Rule 4(1) along with first proviso appended to it, which alone have material bearing with the question in issue involved in the case.
10. From the perusal of aforesaid Rule 4(1) of Rules 1999 it is clear that a government servant can be placed under suspension against whose conduct inquiry is either contemplated or is proceeding, pending conclusion of such inquiry in the discretion of appointing authority, meaning thereby the appointing authority in his discretion can place a government servant under suspension in aforesaid two situations i.e. an inquiry is either contemplated or is proceeding pending conclusion of such inquiry. The first proviso appended to the aforesaid rule further provides that the suspension should not be resorted to unless the allegations against the government servant are so serious that in the event of their being established may ordinarily warrant major penalty. Thus it is necessary to examine true import and scope of the Rule 4(1) of aforesaid rules quoted herein before along with the first proviso appended thereto. For that purpose it would be useful to go into the history of rules regarding suspension prior to the commencement of the aforesaid rules.
11. In this connection it is necessary to mention here that prior to commencement of new Rules of 1999, the Civil Services (Classification, Control & Appeal) Rules, 1930 (in short CCA Rules) and the Punishment and Appeal Rules for Sub-ordinate Services Uttar Pradesh, 1932 (in short Punishment and Appeal Rules) were relevant rule in operation in connection of disciplinary action including the suspension of government employees. For ready reference Rule 49-A of erstwhile CCA Rules amended by Notification dated 30th October, 1976 existing earlier i.e. immediately preceding to commencement of Rules 1999 is reproduced as under:
"49-A. This section has been amended vide Notification No. 18. 4.1976-Personnel I, dated 30th October, 1976. It is as under:
"49-A. (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority:
Provided that in the case of any Government servant or class of Government servants, not belonging to a State Service, the appointing authority may delegate its power under this sub-rule to next lower authority:
Provided further that any other authority empowered by the Governor by general or special order in this behalf, may place a Government servant under suspension under this sub-rule:"
12. Earlier to it Rule 49-A (1) of erstwhile CCA Rules was as noticed by a Full Bench of this Court in para 10 of the decision rendered in State of U.P. v. Jawahar Lal Bhargava and Anr., 1974 A.L.J. 282 as under:
"10. The material part of Rule 49-A may be conveniently quoted here.-
"49-A(l) A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority."
Note- "As a rule suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or, reduction, Suspension, where deemed necessary should, as far as possible, immediately precede the framing of charges and their communication to the Government, servant charged."
13. In this case the content and import of expression "inquiry", and "contemplated" in the light of footnote appended to the aforesaid rule as extracted herein before was under consideration. The scope of aforesaid expressions have been elaborately dealt with by the Full Bench in para 14, 15 and 16 of the decision, which are quoted as under:
"14. The submission of the learned counsel for the respondent appears to be well founded that the contents of the Note ought to be given full effect in construing the material provisions of Rule 49-A, When the Note is taken into consideration then the meaning of the word 'Inquiry' used in clause (I) becomes clear, which means the departmental inquiry as envisaged by Rule 55, as held by Seth, J. The instructions given by the Government as extracted above show that the disciplinary proceedings are most often preceded by an investigation of an informal character and the immediate superior officer on whom the responsibility for initiating formal proceedings lay is directed to complete the investigation as soon as possible without undue delay occurring at any stage. When the investigation, if any, has been completed and it has been decided to undertake formal disciplinary proceedings, a time schedule has to be observed. The charge or charges should be handed over to the charged officer within 15 days from the date of taking the decision to start formal proceedings and it is at the same time that a decision should he taken whether the Officer be placed under suspension pending inquiry. Thus the word 'inquiry' means nothing hut the formal disciplinary proceeding and not the investigation of an informal character which must often precedes the initiation of formal disciplinary proceeding envisaged by Rule 55. When the appointing authority takes a decision to start formal proceedings, then within 15 days of taking that decision charge or charges should be handed over to the charged officer. Thus there is a time lag of 15 days permitted between taking the decision to start formal proceedings and the service of charges on the charged officer. The direction given by the Governor envisages that at the time when a decision is taken by the appointing authority to start formal proceedings it must also simultaneously decide whether the Officer should be placed under suspension pending the inquiry. It is at this stage that it can be said that an inquiry is contemplated against the conduct of the Government servant. The only meaning that can be given to the phrase 'against whose conduct an inquiry is contemplated', occurring in Clause (I) of Rule 49-A, would be against whose conduct an inquiry under Rule 55 is to be initiated." Thai will be when a decision has been taken on the basis of the material collected on preliminary investigation and the appointing authority is prima facie satisfied that they have substance and the starting of formal proceedings would be justified. At any point of time prior to the taking of such a decision it could not be said that an inquiry under Rule 55 was contemplated.
15. Though the verb 'contemplate' has many meanings and has somewhat an ambiguous import, yet it has to be given a definite meaning in the context in which it has been used in harmony with the scheme laid down in the Civil Services (Classification, Control and Appeal) Rules pertaining to conduct and discipline of the Government servant who fall within the rule making power of the Governor under Article 309 of the Constitution. With great respect the meaning given by Seth, J. in Rajendra Shanker Nigam v. State of U.P. appears to be correct, that is to have in view an inquiry under Rule 55 or to hold an inquiry under Rule 55. This stage would not be reached unless the appointing authority decides in the circumstances of the case that it will proceed to hold an inquiry under Rule 55. Mewed in this light and the . directions of the Governor as given in para 2 of the Appendix IV, quoted above, the substance of which is contained in the Note, the phrase 'suspension, where deemed necessary should, as far as possible immediately precede the framing of charges and their communication to the Government servant charged occurring in the Note will mean where it is decided to suspend a Government servant pending an formal inquiry under Rule 55 the order of suspension as far as possible be passed immediately preceding the framing of the charges and their communication. By the use of the words ' as far as possible' an intention is manifest that when the appointing authority considering the, prevailing circumstances finds some practical difficulties, it may not take a decision to suspend a Government servant at the point of time immediately preceding the framing of charges and their communication to the Government servant charged and may defer the decision to suspend 10 a later date. The Note does not permit the appointing authority to suspend a Government servant before it decides to initiate a formal inquiry under Rule 55 against the Government servant. The Note fixes the earliest point of time for the exercise of the power of suspension. The phrase as Jar as possible' cannot be construed as leaving a power with the appointing authority to suspend a Government servant at a point of tune earlier then the earliest point of time fixed by the Note.
16. The first pan of the Note which says "as a rule suspension should not he resorted to unless the allegations against the Government servant are so serious that in the event of their being established they may ordinarily be expected to warrant his dismissal, removal or reduction" shows that only in cases where major punishments, that is dismissal, removal or reduction, can be imposed on the basis of the nature of the allegations, against the Government servant that he may he suspended. Whether the seriousness of the allegations warrant in the ordinary course his dismissal, removal or reduction will certainly depend on the contents of those allegations. In as much as under Clause (1) of Rule 49-A the power of suspension can be exercised only when a decision has been taken to start an inquiry under Rule 55 as held by us what is envisaged by the Note in its first part is that when on preliminary investigation such material has been collected which has substance to justify the departmental proceedings and it is expected that on the evidence brought before the inquiry officer such misconduct on the part of the Government servant will be established which in normal course would justify the infliction of either of the major punishments dismissal, removal or reduction in rank, then the power of suspension be resorted to. The expression 'as a rule ', occurring in the beginning of the Note, implies that that is a/ways the rule to be observed. The word 'allegations' used in first part of the Note do not mean the allegations contained in the complaint received against a Government servant but would mean the allegations having substance revealed by the investigation of an informal nature. The same conclusion would be reached if the provisions of Rule 55-B are examined. When only minor penalies are decided to be imposed, like censure or stoppage at an efficiency bar even framing of formal charge or calling for explanation of the Government servant is dispensed with. Where other minor penalties are to be imposed, then only formal proceedings embodying the statement of the Offence or fault are to be drawn up, explanation of the person concerned obtained and the reason for punishment recorded. In this case also no formal charge need he framed and communicated to the person charged. Thus where minor punishments are to be imposed no formal inquiry as envisaged under Rule 55 is required. It is only in a case where prima facie material justifies the imposition of major penalties that charges are to be framed. The major penalties cannot be inflicted unless the requirement of Rule 55 has been Complied with. It is the 'framing of the charge or charges and their communication to the Government servant charged which initiates or marks the start of the formal departmental proceedings under Rule 55. Since (he suspension of a Government servant is not envisaged under the rules unless in the ordinary course on the charges framed it is expected that major punishment could be imposed, the suspension is to be resorted to either when an inquiry under Rule 55 is contemplated or is proceeding against a Government servant under that rule. The exercise of power of suspension thus is circumscribed under the scheme of the rules and it is to he resorted to at a point of time and under circumstances indicated therein. The exercise of power is not unbounded depending on the sweet will of the appointing authority. It is difficult, therefore, to accept the contention of the learned Chief Standing Counsel as his contention tends to confer or the appointing authority a power to be exercised on the basis of the subjectivity and not objectivity which Rule 49-A intends to achieve for the above reasons it is also not possible to accept the view of the Division Bench in the case of State of Uttar Pradesh v. Rajendra Shanker Nigam that if there are compelling and exceptional circumstances the power of suspension can be exercised even before deciding to hold a departmental inquiry under Rule 55 against a Government servant or that will again leave the matter to the subjective satisfaction of the appointing authority and to call upon it to justify the exercise of its power by establishing the existence of 'compelling and ' exceptional circumstances' will hardly be of any benefit to the Government servant against whom the power of suspension is exercised. Even a review by a Court of law in this regard will hardly be an adequate safe-guard against discrimination as the concept of compelling and exceptional circumstances' being elusive in its import and somewhat ephemeral in its content will introduce uncertainty in the situation which Rule 49-A with the Note appended aims to avoid."
14. Thus from a close analysis of the observations made by full Bench of this Court, it is clear that the expression "inquiry" used in the Rule 49-A (1) means the departmental inquiry as envisaged by Rule-55 which means nothing but the formal disciplinary proceeding and not an investigation of informal character which most often precedes the initiation of formal disciplinary proceeding envisaged by Rule-55. So far as the meaning of phrase "against whose conduct an inquiry is contemplated" is concerned, the full Bench observed that against whose conduct an inquiry is expected or to be initiated under Rule-55 of the C.C.A. Rules. That will be when a decision has been taken on the basis of material .collected on preliminary investigation and the Appointing Authority is prima facie satisfied that they have substance to justify either of the major punishments and initiation of formal proceeding would be justified. At any point of time prior to taking of such a decision it could not be said that an inquiry under Rule-55 was contemplated. This stage would not be Cached unless the appointing authority decides in circumstances of the case that it will proceed to hold an inquiry under Rule-55. It is framing of charge or charges and their communication to the charged government servant, virtually initiates the formal departmental proceeding.
15. While explaining the nature, scope and impact of note appended to Rule 49-A(1) of C.C.A. Rules the full Bench has held that the first part of the note which says " as a rule suspension should not be resorted to unless the allegation against the government servant are so serious that in event of their being established they may ordinarily be expected to warrant his dismissal, removal or reduction "shows that only in cases where major punishment can be imposed on the basis of nature of the allegation against government servant that he may be suspended whether seriousness of allegation warrant in the ordinary course his dismissal, removal or reduction will certainly depend on the contends of those allegations. In as much under Clause (1) of Rule 49-A. the power of suspension can be exercised only when decision has been taken to start an inquiry under Rule-55 which can be done only when on preliminary investigation, such material has been collected which have substance to justify the formal departmental proceeding and it is expected that on evidence brought before inquiry officer, such misconduct on the part of government servant will be established, which in normal course would justify either of the major penalties viz. dismissal, removal or reduction in rank, suspension is resorted to". The court further held that the expression "as a rule" occurring in the beginning of the note implies that that is always the rule to be observed.
16. The word "allegations" used in the first part of the note do not mean that allegation contained in the complaint received against the government servant but would mean the allegations having substance revealed by an investigation of informal nature. As held earlier it is framing of charge or charges and their communication to the government servant virtually marks starting point of formal inquiry. Since the suspension of government servant is not envisaged under the rules unless in ordinary course on the charges framed it is expected that major penalties could be imposed hence the suspension is to be resorted to either when an inquiry under Rule-55 is contemplated or is proceeding against government servant under that rule. The exercise of power of suspension thus circumscribed under the scheme of rules and it is to be resorted to at a point of time and under circumstances indicated therein. The exercise of power is not unbounded depending on the sweet will of the appointing authority." This is what in substance, the aforesaid full Bench of this Court has held regarding the matter pertaining to suspension in context of the rule with Note below appended thereto.
17. Later on the aforesaid footnote appended to Rule 49-A of erstwhile C.C.A. Rules and Rule 1-A of erstwhile Punishment and Appeal Rules was deleted by Notification dated 23rd March 1974 which has been noticed in para- 5 of the decision of subsequent Five Judges Full Bench of this Court rendered in State of U.P. v. Jai Singh Dixit and Ors., 1974 A.L.J. 862 as under;
"5. The Note below Rule 49-A of the C.C.A. Rules was deleted under Notification No. 16 111-1973-Apptt.(3) dated March 23,11974, and the Note below Rule I-A of the Punishment and Appeal Rules under Notification No. 18 111-1973 (3) Apptt. (3) dated March, 1974, and in both the cases the deletion was to take effect from October 29, 1968. "
18. The question for consideration before Five Judges Full Bench was that what is meant by word "inquiry" and "contemplated" used in Rule 49-A of CCA Rules and Rule 1-A of Punishment and Appeal Rules particularly in context and reference of deletion of note below which was earlier appended to he aforesaid rule? And in other words what is true content and import of the aforesaid rules after deletion of the aforesaid Note below? This subsequent five . Judges Full Bench in Jai Singh Dixit's case has dealt with the issue at length and para 30 and 31 of the decision recorded its concluded opinion regarding the meaning of expression "inquiry" used under aforesaid rules as under :-
"30. The word 'inquiry' has also been used in Rules 55 and 55A of the C.C.A. Rules. Rules 55 and 55-A relate to formal departmental inquiry where major punishment of dismissal, removal or reduction can be imposed. Such an inquiry is invariably preceded by framing of charges. It is of significance that in the other rules governing cases in which minor punishment can be awarded the word 'inquiry' has been omitted and the rules merely provide for the award of punishment. It is true that most of the minor punishments shall be awarded after some inquiry, but when the rule making authority intentionally avoided making a reference to this term in the other rules and used the word 'inquiry' in rule 49.-A and also Rule 55 and 55-A the underlying intention was that the inquiry contemplated by Rule 49-A is the one held under Rules 55 and 55-A. It must, therefore, be held that the power under Rule 49-A can be exercised only in those cases where one of the major punishment-dismissal, removal or reduction shall ordinarily be imposed.
31. The inquiry contemplated by Rule 49-A cannot have reference to an informal preliminary inquiry or a fact-finding inquiry preceding the actual disciplinary proceeding, otherwise it shall be permissible to suspend a Government servant pending such informal inquiry, but not after charges have been framed and regular' departmental proceeding is pending. This shall lead to an anomalous situation. We are, therefore, of opinion that the "inquiry" contemplated by Rules 49-A and 1-A has reference to the formal departmental inquiry, and not to any informal preliminary or fact-finding inquiry preceding the initiation of the formal disciplinary proceeding.
19. While dealing with the meaning and import of the phrase " a Govt. servant against whose conduct an inquiry is contemplated" the subsequent five Judges Full Bench in paragraph 32 to 39 and para 41 of the decision held as under:-
32. The scope of Rule 49-A or 1-A does not appear to have conic up for consideration before the Supreme Court, but the difference between 'contemplated' and "initiated" was noticed in P.N. Nayak v. Union of India A.I.R. 1972 SC 554. This is a case governed by the All India Services (Discipline and Appeal) Rules, 1969 where suspension during disciplinary proceeding could be ordered if such proceeding had been initiated, and not, as in the present cases, where such proceeding was under contemplation. It was "observed in para 15 of the Report:
"It does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated....
The legislative scheme. .is thus clearly indicative of the intention of the rule making authority to restrict its operation only to those cases in which the Government concerned is possessed of sufficient material whether after preliminary investigation or otherwise and the disciplinary proceedings have in fact commenced and not merely when they are contemplated... . Again the fact that in other rules of service an order of suspension may be made when 'disciplinary proceedings were contemplated' should not lead us to take the view that a member of an All India Service should be dealt with differently."
It was further observed in para 19:
"But independently of this consideration we think that the plain language of Rule 3(1) (a) and (b) which concerns us does not authorize suspension when disciplinary proceedings have not been initiated but are only contemplated."
The meaning of the word "contemplate " has been given in Shorter Oxford English Dictionary, Volume I, as :
"1. To look at the continue attention, gaze upon, observe. BEHOLD. 2. To view mentally; to meditate upon, ponder, study. 3 To consider in a certain aspect, regard. 4. To have in view; to expect, take into account as a contingency; to purpose".
and in the New International Dictionary, Volume 1, as :
"1. To view with sustained attention: gaze at thoughtfully for a noticeable time : observe with ostensibly steady reflection.
2. to view mentally with continue thought/illness, attention, or reflection : muse or ponder about, 3. to view mentally in a stated or implied way with though fulness and reflection : A. to think about or regard from a certain view point or in a certain light or respect. B. to have in view as a purpose: anticipate doing or performing : plan on : INTEND , PlAN c. to dream of as a cherished aim: ENVISION -D: to presume or imply as a concomitant or result: POSTULATE, PRESUPPOSE 4: to view or regard (as an object or an objective fact) with detachment. "
33. The proper meaning which can be assigned to the word "contemplate" used in Rule 49-A or in Rule 1-A, therefore, is to have in view, to expect, take into account as a contingency'. Therefore, whenever it is in the mind of the appointing authority that in due course a format departmental inquiry shall be held or there exists a contingency for such an inquiry, one can say that a formal departmental inquiry is contemplated. It is, however, necessary that there should be application of mind, in the eye of law, in good faith, and not arbitrarily.
34. A formal departmental inquiry is invariably preceded by an informal preliminary inquiry which itself can he in two phases. There can he a summary investigation to find out if the allegation made against the Government servant have any substance. Such investigation or inquiry is followed by a detailed preliminary or fact finding inquiry, where after final decision is taken whether to initiate disciplinary proceeding. The first preliminary inquiry may be in the shape of Secret inquiry and the other, of an open inquiry. In the alternative, when complaints containing serious allegations against a government servant are received, the authority may peruse the records to satisfy itself if a more detailed preliminary inquiry be made.
35. In marly instances the appointing authority will be in a position to form an opinion after the summary investigation, secret inquiry or inspection of records that the allegations made against the Government servant have substance and in due course formal departmental action shall be taken against him. These all would be cases covered by Rule 49-A, i.e. cases where formal departmental inquiry is contemplated.
36. In a few cases it may be possible for the appointing authority to form such an opinion at an earlier stage also, i.e., at the stage of receiving or entertaining a complaint. These also shall be cases where it can be said, in good faith, that formal departmental inquiry is contemplated.
37. To put it in brief, a departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or it (if) made, is not complete. There, can, therefore, be suspension pending inquiry even before a final decision is taken to initiate the disciplinary proceeding, i.e., even before the framing of the charge and the communication thereof to the Government servant.
38. This view finds support, not only from the difference in the phraseology, noticed in P.N. Nayak v. Union of India but also from the provisions contained in Rule 49-A and Rule I-A. A departmental inquiry proceeds from the stage a final decision is taken to initiate such inquiry, in any case, when charges are framed and communicated to the Government servant. If the rule making authority had intended that the power to suspend under Rule 49-A was to accrue on taking a firm and final decision to hold an inquiry it would not have incorporated therein the expression 'an inquiry is contemplated'; in any case, would have in its place used the expression 'an inquiry has been decided upon', No part of the rule can be regarded as superfluous. Hence the word 'contemplated' must be given its ordinary meaning, as already indicated above.
39. Naturally, it shall depend upon the facts and circumstances of each case whether, prior to the framing of the charge and communication thereof to the government servant, it can be said that a departmental inquiry is expected.
41. As already discussed above, that is the stage for initiating the departmental inquiry and the stage contemplated by Rule 49-A is much earlier when the appointing authority is satisfied that disciplinary proceeding would eventually be taken against the government servant."
20. In para 43, 44 and 45 of the decision the subsequent five Judges full Bench has also considered the opinion of earlier full Bench in respect of meaning and import of expression 'an, inquiry is contemplated' and expressed its disagreement thereon regarding the scope and meaning of the aforesaid expression in context of Rule 49-A or Rule 1-A of the .aforesaid Rules as under:-
"43. It shall be noticed that in the opinion of the Full Bench also, the expression an "inquiry is contemplated" means an inquiry is expected. However, a restricted view was taken of the expression to mean the decision to hold an inquiry under Rule 55 or the decision to initiate regular departmental proceeding. Once a firm and final decision has been taken to hold a formal departmental inquiry, such an inquiry is certain and not merely expected. Consequently, we are in respectful disagreement with the view expressed by the Full Bench regarding the scope of Rule 49-A or Rule I-A.
"44. The Full Bench also accepted the submission made on behalf of the Government servant that the contents of the Note ought to he given full effect in construing the material provisions of Rule 49-A", and held that an inquiry is contemplated against the conduct, of the government servant when a decision is taken by the appointing authority to start formal proceedings and at the same time if is decided whether the officer be placed under suspension pending inquiry. It was further observed that at any point of time prior to the taking of such a decision, it could not be said that an inquiry under Rule 55 was contemplated. At another place it was observed:
"The Note does not permit the appointing authority to suspend a Government servant before it decides to initiate a formal inquiry under Rule 55 against the Government servant. The Note fixes the earliest point of time for the exercise of the power of suspension. The phrase "as far as possible" cannot be construed as leaving a power with the appointing authority to suspend a Government servant at a point of time earlier than the earliest point of time fixed by the Note."
45. Under Rule 49-A suspension pending inquiry is permissible where the departmental inquiry is proceeding or where the departmental inquiry is contemplated. Once the charges have been framed and communicated to 'the Government servant, the inquiry comes into existence and is being proceeded with. Consequently, if the intention of the makers of the rule was not to permit suspension pending inquiry before the framing of the charges, it was not necessary to authorize such suspension when the inquiry was contemplated.
21. In para 46 of the decision subsequent Full Bench has considered the import of expression "allegations" used in the first part of the note below appended to the rules in question and expressed its disagreement with view taken by earlier Full Bench as under "
"46. The Full Bench interpreted the word 'allegations' used in the first part of the Note "as allegations having substance revealed by the investigation of an informal nature", and not "allegations contained in the complaint received against a Government servant," When allegations are substantiated and charges are framed, allegations take the shape of charges and they are invariably called charges, and not mere allegations. There is, therefore, no reason why a restricted meaning be given to the word 'allegations' used in the Note. "
22. In para 48,52,53 and 55 of the decision the subsequent full Bench has recorded its concluded opinion on the questions under consideration as under:-
"48. In case the matter is considered in the manner already suggested by us above, there shall always be objective satisfaction of the appointing authority before the Government servant can be suspended pending inquiry. To suspend a Government servant on receipt if complaints containing allegations of Dishonesty or of misconduct, without the appointing authority being satisfied that the allegations made have substance, which would later justify taking disciplinary proceeding, shall be on subjective consideration and has to be disapproved by the Courts of law. But where there exist circumstances to satisfy the appointing authority that the allegations made have substance, suspension pending inquiry shall be on objective consideration, and not subjective. It is a different thing that the appointing authority may like to have the matter investigated or further investigated so that the total material may come on the record and a proper departmental inquiry can be held.
52. For the reasons indicated above, we are of the opinion that even when the Note below Rule 49-A or Rule I-A was a part of the main rule it did not restrict the scope of the relevant rule. The power of suspension pending inquiry under this rule could be exercised at an early stage also, i.e., before the framing of charges and communication thereof to the Government servant, provided that on objective consideration of the material the appointing authority was satisfied that after investigation or further investigation there shall be a formal departmental inquiry under Rule 55 and 55-A. This power was to be ordinarily exercised in the manner contemplated by the Note.
53. While deleting the Note below Rule 49-A or Rule 1-A, under notifications dated March 24, 1974, the Government did not amend the executive instructions contained in the two G.Os. referred to in the earlier part of this judgment. These instructions are still in existence, but they cannot in any way affect the scope of Rule 49-A or . Rule I-A. They can be utilized as laying down guiding principles for the information of the appointing authority. As such they can, to the most, be said to be advisory in nature, of course, entitling the State Government to pass a proper order on a representation being made to it by aggrieved Government servant.
55. To conclude, suspension pending inquiry under Rule 49-A of the U.P. Civil Services (Classification, Control and Appeal) Rules or Rule I-A of the U.P. Punishment and Appeal Rules can be ordered at any stage prior to or after the framing of charges, when on objective consideration the authority concerned is of the view that a formal departmental inquiry under Rules 55 and 55-A of the C.C.A. Rules or Rules 5 and 5-A of the U.P. Punishment and Appeal Rules is expected, or such an inquiry is proceeding. At what stage the power under the above rules Can be exercised shall always depend on the facts and circumstances of each case. "
23. Thus the aforesaid legal proposition set out by Five Judges full bench of this Court in Jai Singh Dixit's case (supra) appears to be settled legal position and holding the field regarding the interpretation given to the provision of Rule 49-A(1) of CCA Rules and Rule 1-A of U.P. Punishment and Appeal Rules as contrary thereto nothing has been brought to our notice with regard to the aforesaid legal propositions. Besides, the law laid down! by subsequent five Judges full Bench of this Court is also binding upon this Division Bench as binding precedent. Thus at this juncture the only question remains to be considered by this Court that what would be the effect and impact of changes brought about in respect of relevant rules of suspension set out in the new rules of 1999?
24. In this connection at the very out set it is necessary to point out that Rule 4(1) of new rules of 1999 deals with the suspension of Govt. servant against whose conduct "an inquiry is either contemplated" or "is proceeding". Clause (1) of Rule 4 of new rules as reproduced earlier is pan materia clause of Rule 49-A (1) of CCA Rules but the similar provisions as contained under first proviso appended to Rule 4(1) of the rule were not existing in Rule 49-A (1) of CCA rules existing immediately preceding the commencement of this Rule 1999. However, earlier to it under Rule 49-A of CCA rules a note containing some what similar provisions was appended but later on deleted on 23rd March 1974 as noticed in the earlier part of this judgment. The aforesaid note has two parts as noticed in para 27 of the decision and while explaining the legal nature, function and impact of the Note appended to Rule 49-A(1) of erstwhile C.C.A. Rules in para 26 and 27 of the decision the Five Judges Full Bench of this Court in Jai Singh Dixit's case (supra) held as under:
"26. At this place it may, however, be observed that the Note appended to a rule or to an enactment does not, ordinarily, restrict or enlarge the scope of the main provisions; it generally serves as a guide line for the officers authorised to take action under the rule. The Note has, however, to be read along with the main provision. Consequently, where the* Note is directory and not mandatory, it shall, in no way, restrict the powers conferred under the main provision; but if the Note has been worded in a manner which restricts the power conferred under the main provision, and is as mandatory as the provision itself, it can be said that the Note is an important part of the rule and has the effect of placing restrictions in the exercise of jurisdiction. To put it differently, if the directions contained in the Note are directory by nature, they shall not have the effect of restricting the scope of the main provision, though while exercising the jurisdiction, the guiding principles contained in the Note must be kept in mind. The difference is only this that the breach of the directory provisions of the Note will not by itself invalidate the order."
"27. Coming to the instant case, the Note has two parts:
(1) As a rule, suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their, being established, they may ordinarily be expected to warrant his dismissal, removal or reduction.
(2) Suspension, where deemed necessary, should, as far as possible, immediately precede the framing of charges and their communication to the Government servant charged.
It shall be noticed that the rule-making authority has used different words in the two parts "as a rule" in the first part and "as far as possible" in the other. Even if the first part is regarded as mandatory, the same cannot be said about the other. The second part being directory cannot restrict the scope of the main provision and in suitable circumstances suspension pending inquiry can be ordered even though in formal preliminary inquiry or the fact finding inquiry is not complete . and no firm final decision has been taken to initiate departmental proceeding against the Government servant. In other words, there can be suspension pending inquiry even before the framing of charges and the communication thereof to the Government servant charged."
25. At this juncture it is to be seen that the first proviso appended in new Rule 4(1) of 1999 Rules is also pari materia clause and similarly worded as first part of the note appended to Rule 49-A(l) of CCA Rules before its deletion, with a slight variance. As a different phraseology, by deleting the words "as a rule" used in beginning of the first part of the note expression "provided that" and in place of expressions "dismissal, removal or reduction" used in concluding part of first part of the note, the expression "major penalty", has been substituted in the proviso to Rule 4(1) of the new rule in place of first part of the note appended to old rule. However, the second part of Note has been completely omitted in the new rule, therefore, it is necessary to examine what would be the effect and impact of the first proviso appended to Rule 4(1) , of the new rules in the light of law enunciated by this Court referred herein before? But before examining this question it is necessary to point out that the note appended Jo the earlier rule 49-A (1) of C.C.A. Rules was interpreted as part and parcel of same statute made by same rule making authority namely Governor of State of U.P., first part of the note was treated to be mandatory, which imposes restriction on the exercise of power of appointing authority whereas second part was regarded as directory, as such could not restrict the scope of the main provision, however, could be regarded as advisory in nature and providing guidelines for the officers authorised to take action under the rule.
26. Besides this Five Judges Full Bench of this Court no doubt has interpreted the provisions contained in the note earlier appended to the Rule-49-A(l) of C.C.A. Rules by analyzing the same in two parts wherein first part of it was regarded as mandatory and second part as directory in nature and also explained its scope and role which it had to play in context of statute to which it was appended but with due respect it is to be pointed out that the Full Bench did not indicate the exact legal nature of note in the judgment in the sense as to whether it" could be classified as "explanation" or "proviso" to the aforesaid rule. However interpretation given to it clearly indicates its legal nature and actual role, which was assigned to it. Therefore, in order to have a distinction between the "proviso" and "explanation" appended to statute it would be useful to have a glance over legal aspect of the matter.
27. In S. Sundaram Pillai v. V.R. Pattabiraman, , Hon'ble Apex Court in para 52 of the decision, while dealing with the issue at length in the earlier part of the decision has summarized the legal nature and functions of the "explanation" appended to the statute as under:
"52. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is-
(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserved,
(c) 10 provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof hut where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and
(e)It cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becaming an hindrance in the interpretation of the same. "
28. At this juncture it would also be useful to examine the legal nature, functions, object and impact of "proviso" appended to the statute. In this ? connection a reference can be made to the same decision of Hon'ble Apex Court rendered in S. Sundaram Pillai v. V.R. Pattabiraman (supra), wherein while dealing with the legal nature, functions and impact of the proviso appended to the particular statute or enactments in para 26 to 43 of the decision Hon'ble Apex Court has held as under:
"26. The next question that arises for consideration is as to what is the scope of a proviso and what is the ambit of an Explanation either to a proviso or to any other statutory provision. We shall first take up the question of the nature, scope and extent of a proviso. The well-established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein, which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from (he main enactment nor can it be used to nullify or net at naught the real object of the main enactment.
27. Craies in his book 'Statute Law (7th Edn.) while explaining the purpose and import of a proviso states at page 318 thus:
"The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it.... The natural presumption is that but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. "
28. Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients:
P.317 "Provisos These are clauses of exception or qualification in an Act, excepting something out of, or qualifying something in, the enactment which, but for the proviso, would be within it. "
P.318 "Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment."
29. Sarathi in 'Interpretation of Statutes' at pages 294-295 has collected the following principles in regard to a proviso:-
"(a) When one finds a proviso to a section the natural presumption is that, hut for the proviso, the enacting part of the section would have included the subject-matter of the proviso.
(b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended.
(c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers.
(d) Where the section is doubtful, a proviso may be used as a guide to its interpretation; but when it is clear, a proviso cannot Imply the existence of words of which there is no trace in the section.
(e) The proviso is subordinate to the main section.
(f) A proviso does not enlarge an enactment except for compelling reasons.
(g) Sometimes an unnecessary proviso is inserted by way of abundant caution.
(h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail.
(i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one.
(j) A proviso may sometimes contain a substantive provision."
30. In the case of Local Government Board v. South Stoneham Union, 1909 AC 57, Lord Macnaghten made following observation:
"I think the proviso is a qualification of the preceding enactment, which is expressed in terms too general to be quite accurate. "
31. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai, (1966) 1 SCR 367 : AIR 1966 SC 459 it was held that the main object of a proviso is merely to qualify the main enactment. In M. & S.M. Railway Co. Ltd. v. Bezwada Municipality, AIR 1944 PC 71, Lord Macmillan observed thus:
"The proper function of a proviso is to except and to deal With a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case."
32. The above case was approved by this Court in Commr, Of Income Tax, Mysore, v. Indo Mercantile Bank Ltd., 1959 Supp. (2) SCR 256 : AIR 1959 SC 713, where Kapur, J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha, , Hidayatullah, .J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus:
"As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as staling a general rule. "
33. In West Derby v. Metropolitan Life Assurance Co. 1897 AC 647 while guarding against the danger of interpretation of a proviso, Lord Watson observed thus:
"a very dangerous and certainly unusual course to import legislation from a proviso wholesale into the body of the statute. "
34. A very apt description -and extent of a proviso was given by Lord Oreburn in Rhodda Urban District Council v. Taff Vale Railway Co. 1909 AC 253 where it was pointed out that insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at limes a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. To the same effect is a later decision of the same Court in Jennings v. Kelly 1940 AC 206, where it was observed thus:
"We must now come to the proviso, for there is. I think, no doubt that in the construction met ion of the section the whole of it must be read and a consistent meaning if possible given to every part of it. The words are "provided that such lincence shall be granted only far premises situate in the ward or district electoral division in which such increase in population has taken place. " There seems to be no doubt that the words "such increase in population " refer to the increase of not less than 25 per cent of the population mentioned in the opening words of the section."
35. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately.
36. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause, Sometimes a, proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself.
37. Apart from the authorities referred to above, the Hon 'ble Apex Court has in a long course of decisions explained and adumbrated the various shades, aspects and elements of a proviso. In State of Rajasthan v. Leela Jain , the following observations were made:
"So far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative pan. "
38. In the case of Sales Tax Officer, Circle I, Jabalpur v. Hamiman Prasad , Bhargava, J. observed thus:
"It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the legislature desires should be excluded."
39. In Commr. of Commercial Taxes v. R.S. Jhaver , the Hon'ble Apex Court made the following observations:
"Generally speaking, it is true that the proviso is an exception to the main part of the section; but it is recognized that in exceptional cases a proviso may be a substantive provision itself "
40. "In Dwarka Prasad v. Dwarka Das Saraf , Krishna lyer, J. speaking for the Court observed thus:
"There is some validity in this submission but if, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case.
If the rule of construction is that prima facie a proviso should be limned in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso.
A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. "
41. In Hiralal Rattanlal v. State of U.P. this Court made the following observations:
"Ordinarily, a proviso to a section is intended to take out apart of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provision is called proviso, it is really a separate provision and the so-called proviso has substantially altered the main section."
42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly -well established. To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on curtain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision."
43. These seem to be by and large the main purport and parameters of a proviso."
29. At this juncture it would also be useful to refer a passage of Chapter 10.1. of fourth Edition "Legislation and Interpretation" a Book by Late Sri Jagadish Swarup, who had been Solicitor General of India and eminent Jurist of India. At page 357 of the Book, while taking note of Jennings v. Kelly, 1940 A.C. 206, he has very aptly observed as under "In Jennings v. Kelly it was said that, where there was a proviso, the former part, which was described as enacting part must be construed, without reference to the proviso and Lord Wright said: "No doubt there may be cases in which the first part is so clear and unambiguous not to admit, in regard to the matters which are there clear, any reference to any other part of the section. The proviso may simply be an exception out of what is clearly defined in the first part or it may he some qualification not inconsistent with what is expressed in the first part, in the present case, however, not only is the first part of the section deficient in express definition, but also the second part is complementary and necessary in order to ascertain the full intention of the legislature. The proper course, is to apply, the broad general rule of construction which is that a section or enactment must he construed as a whole, each part throwing light, if need, be, on the rest. I do not think that there is any other rule, even in the case of a proviso in the strictest or narrowest sense, and still less, where, as here, the introduction of the second part by the word "provided" is in a strict sense inapt."
30. Thus from a close analysis of law enunciated by the Hon'ble Apex Colur and juristic opinions it is clear that the "proviso" appended to the statute may serve various different purpose as indicated herein before. Now a question Would arise to be considered that what role has been assigned to the aforesaid "proviso" appended to new rule 4(1) of 1999 Rules? In this regard in order to arrive at a correct conclusion it is necessary to examine content and import of substantive/enacting part of Rule 4(1) of Rule 1999 first without any reference to the "proviso" appended thereto, thereafter a clear picture would come to determine the role which the "proviso" has to play in the rule in question.
31. Now from a bare reading of the enacting of part of the Rule 4(1) of Rules, 1999 it is clear that a discretionary power to place a Government servant under suspension has been vested in the appointing authority pending conclusion of enquiry against whose conduct an, inquiry is either "contemplated" or "is proceeding", but nothing further has been mentioned in the enacting part of the substantive provisions of the aforesaid rule to indicate I how the exercise of the aforesaid discretionary power can be regulated and controlled. Although from the close scrutiny of entire scheme underlying in the new rules make the situation clear independently of the "proviso" appended to the rule but apparently it gives a look of unguided discretionary powers vested in appointing authority, though it is not real legal position.
32. At this juncture it is necessary to point out that the provisions contained in Rule 4(1) of 1999 Rules are exactly same and similar to that of Rule 49-A (1) of C.C.A, Rules, as such both the rules are pari-materia to each other. Therefore, there would be no difficulty in adopting the interpretation given by Five Judges Full Bench of this Court while considering the content and scope of" Rule 4(1) of new Rules, 1999. In New Rule 4(1) also the expression "inquiry" has been used as used under old Rule 49-A(1)-of C.C.A. Rules and the same expression "inquiry" has also been used in Rules 7, 8 and 9 of the new Rules, 1999. Major and Minor penalties have been described under Rule-3 of the Rules. Rule 7, 8 and 9 of Rules 1999 cumulatively deals with the procedure for holding formal disciplinary inquiry for imposing major penalties against government servants. Rule-10 of 1999 Rules deals with the procedure for imposing minor penalties which does not use the expression "inquiry" any where in the rules instead there of in clause (2) of the aforesaid rule only this much is provided that the government servant shall be informed of the substance of imputations against him and called upon to submit his explanation within reasonable time. The Disciplinary Authority, shall after considering the said explanation, if any and relevant records, pass such orders as he considers proper and where a penalty is imposed, reason thereof shall be given.
33. These intrinsic materials underlying in the scheme of aforesaid provisions of Rule 1999 itself clearly demarcates line between procedure for holding inquiry for imposing major penalties and minor; penalties, and also leads towards irresistible conclusion that the expression "inquiry" used under Rule 7, 8 and 9 of Rules, 1999 with a view to hold formal disciplinary inquiry for imposing major penalties only. Since the same expression "inquiry" has been used under Rules 4(1) with a view to place government servant under suspension against whose conduct an inquiry is either "contemplated" or "is proceeding". Therefore, it leaves no room for doubt to hold that a government servant can be suspended only when an inquiry is either under contemplation or is proceeding for imposition of major penalties. It is also because of another valid and justified reason that the expression "inquiry", has been deliberately omitted by same rule making authority where some sort of inquiry has to be held under Rule 10 of the new Rules of 1999 for imposing minor penalties.
34. Thus, in our opinion this inquiry under Rule 4(1) of rules can be no other inquiry except the inquiry envisaged under rule 7, 8 and 9 of the new Rules, 1999 which contemplates nothing but for holding formal disciplinary inquiry for imposing major penalties against Government servant. The aforesaid view taken by us have also been taken by both the Full Benches of this Court, while interpreting the pari-materia clauses of Rule 49-A(1) vis-a-vis Rule-55 and 55-B of C.C.A. Rules, both the Full Benches have arrived at the same conclusion. Therefore, from the aforesaid discussions the necessary corollary which follow is that where the allegations are not so serious so as to warrant major penalties on their being established in ordinary course rather attracts only minor penalties as described under Rule 3, it is not open for the appointing authority to place a Government servant under suspension, as the suspension can only be resorted to undo, Rule 4 (1) of Rules 1999, where a formal disciplinary proceeding has to be held within the meaning of rule 7, 8 and 9 of the aforesaid rules for imposing major penalties.
35. At this juncture it would also be necessary to point out that the inquiry contemplated under rule 4(1) cannot have any reference to an informal preliminary inquiry or fact finding inquiry preceding the actual or formal disciplinary inquiry, otherwise it shall be permissible to suspension of a government servant pending such informal inquiry but-not after charges have been framed and regular formal departmental proceeding is pending. This would lead to an anomalous situation whereas plain reading of Rule 4(1) of the new rules clearly indicates that suspension contemplated thereunder can continue till conclusion of pending inquiry. However, this power of Appointing Authority to continue suspension should not be confused with its exercise in situation" not warranted under law in given facts and circumstances of a 1 particular case. We are, therefore, of the opinion that inquiry contemplated by rule 4(1) of Rules 1999 has reference only to the formal departmental inquiry and not to any informal preliminary inquiry or fact-finding inquiry preceding the initiation of formal disciplinary inquiry for imposition of major penalty against the government servant. The view taken by us also finds support from the law laid down in .subsequent Full Bench of this Court referred earlier, wherein a pari-materia clause contained in Rule 49-A(1) of C.C.A. Rules has been dealt with.
36. Now coming to the true import and purpose of the proviso appended to Rule 4(1) of new Rule 1999, it is necessary to point out as indicated earlier that the provisions contained in the proviso of Rule 4(1) of the aforesaid Rules are pari-materia clause to the provisions contained in first part of the note appended to Rule 49-A(1) of the erstwhile C.C.A. Rules prior to its deletion. Both the Full Benches referred earlier had dealt with the aforesaid provisions and held that the first part of the note which says, as a rule suspension should not be resorted to unless the allegations against the government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction, shows that only in those cases where major punishment i.e. dismissal, removal or reduction can be imposed on the basis of nature of allegations against government servant that he may be suspended. Whether the seriousness of allegations warrant in the . ordinarily course of his dismissal, removal or reduction will certainly depend on the contents of those allegations. The expression "as a rule" occurring in the beginning of first part of the note implies that it is always the rule to be observed. So far as with regard to the expression "allegations" contained in the first part of the note in para 46 of the decision referred earlier, the subsequent Full Bench has held that the earlier Full Bench interpreted the word "allegations" used in the first part of the note as allegations having substance! revealed by an investigation of informal nature and not allegations contained in the complaint received against the government servant but while disagreeing with earlier Full Bench further observed that when "allegations" are substantiated and charges are framed, the "allegations" take a shape of charges and they are invariably called "charges" and not mere "allegations". There is, therefore, no reason why a restricted meaning be given to the word "allegations" used in the note. To suspend the government servant on receipt! of complaint containing allegations of dis-honesty, negligence or mis-conduct without the appointing authority being satisfied that the allegations made have substance which, would later justify taking of disciplinary proceeding if shall be on subjective consideration, the same can be dis-approved by Court of law, but where there exists circumstances to satisfy the appointing authority that the allegations made have substance, suspension pending inquiry shall be on objective consideration and not subjective. It is different thing that appointing authority may later to have the matter investigated or further investigated so that total material may come on record and a proper departmental inquiry can be held.
37. Thus, we are of considered opinion that there can be no scope for doubt to hold that on receipt of such complaint containing allegations against government servant, the appointing authority has to be satisfied about the I allegations contained therein and further such allegations have any substance enabling to hold formal disciplinary inquiry against the government servant for imposition of major penalty against him. Before such satisfaction is arrived at with regard to such allegations, it is not open for the appointing authority to place a government servant under suspension. In this connection it is necessary to make it clear that such satisfaction need not be in shape of a final and firm decision, otherwise the "inquiry" instead of being "expected" or "as contingency", it would be sure and certain, which could not be said to be intention of rule making authority while employing the phrase "an inquiry is contemplated"
38. Now putting it differently and viewing from different and another angle it is again necessary to point out that proviso appended to Rule 4(1) contained pari-materia clause as contained in first part of note appended to erstwhile Rule 49-A(1) of CCA Rules which was regarded as mandatory in nature, therefore the provisions contained in the first proviso to Rule 4(1) of the rule must also be treated to be mandatory in nature and no exception can be drawn in this regard. The phrase " unless allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty" also assumes significance. As indicated earlier that seriousness of allegations depends on the content of those allegations upon which the appointing authority has to be satisfied about the actions to be taken thereon. Such satisfaction is to be arrived at on the basis of materials before it on objective considerations, which implies weighing of materials in the mind of appointing authority as a consequence of which it would arrive at a conclusion, which should also satisfy the test of proportionality of punishment to delinquency or gravity of allegation constituting misconduct against such employee. In our considered opinion, such duty has been east upon the appointing authority by employing mandatory provisions under the proviso to Rule 4(1) of Rules 1999 which in clearest term stipulates that unless allegations are so serious, which on being established may ordinarily warrant major penalty suspension cannot be resorted to. The provisions contained in the aforesaid proviso thus imposes restriction upon the appointing authority to exercise its powers vested under enacting part of the rule as condition precedent for exercise of such power therefore unless condition precedent for exercise of power exist, or satisfied, the exercise of power would be without jurisdiction and action would not be bonafide rather it would be termed as malafide. However, it is made clear that satisfaction so arrived need not be final concluded opinion in the shape of firm and final decision of the appointing authority instead thereof it may be only a prima facie satisfaction based on objective considerations of materials, but where such satisfaction is challenged before the court of law the Appointing Authority is bound to satisfy the court regarding his satisfaction based on materials by producing the materials before the court because of the simple reason that language used in the proviso to the rule in question appears to be objective in nature, which can be examined by the court or tribunal not as appellate authority but within the purview of well settled parameters of judicial review.
39. Thus from the aforesaid discussion, the necessary corollary which follows that where the allegations are not serious enough to warrant either of the major penalties described under rule 3 of the new Rules, 1999, it goes without saying that suspension should not be resorted to serve other ulterior purpose as measure of administrative routine or as personal or political vendetta against Government servant as it would be prejudicial to the public interest causing loss to the public administration.
40. Thus from the aforesaid discussion, we are of the considered opinion that the first proviso appended to Rule 4(1) is first to be treated as employed under the rule as abundant caution to give correct and accurate meaning to the expression "inquiry" used in the enacting part of the rule which was implicit in the enacting part 'has been made explicit by the proviso, second as substantive provision of the statute like enacting part contained in Clause (1) of Rule 4 to be interpreted like supplementary provisions of enacting part of the rule as complementary provision to remove deficiency in enacting part of the rule and to ascertain full intention of rule making authority thus it would serve as integral part of the enacting provision. Third the proviso appended to the rule appears to have controlling effect upon the provisions of enacting part of the rule because of the simple reason that the discretionary power vested in appointing authority has to be exercised only in contingency provided under the proviso contained in the rule, as a condition precedent for exercise of such power. Lastly the provisions contained in proviso elucidated the provisions of enacting part of the rules by illuminating it. Thus in our considered opinion the proviso appended to the Rule 4(1) of the Rules has very significant and pivotal role to play under the rule in question as indicated herein above.
41. Thus in view of foregoing discussions we are of considered opinion that law laid down by five judges Full Bench of this Court in case of Jai Singh Dixit (supra) is still good law and holds the field. The changes brought about in the rules regarding the suspension of Government servant by new rules of 1999 do not affect the legal position settled in the aforesaid decision, so far as interpretation of provisions of Rule 4(1) along with its first proviso is) concerned. Thus, so far as the content and import of expression "inquiry", "contemplated' and "allegations" used in the new rule of 1999 is concerned the same may be understood with necessary modifications in context of interpretation given to the erstwhile rule 49-A(1) of the CCA Rules. Accordingly the legal position as it stands now is that suspension pending inquiry under Rule 4 (1) of Rules 1999 can be resorted to at any stage prior and after framing of charge when on objective consideration the authority concerned is of the view that a formal departmental inquiry, under Rule 7 of the said rule is expected or such an inquiry is proceeding. It immaterial that prior to it any other inquiry of informal nature has been held or not or such informal inquary if initiated, is concluded or not? Suspension can be resorted to even before a final decision is taken to initiate the disciplinary proceeding. At what stage the power under rule can be exercised, shall always depend upon the facts and circumstances of each individual case and no strait-jacked formula having universal application in all the cases can be evolved in this regard.
42. Now at this juncture, it is necessary to refer some case laws wherein the scope of judicial review relating suspension vis-a-vis circumstances under which it can be resorted to have been dealt with by Hon'ble Apex Court. In U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. v. Sanjiv Rajan, (1993} 3 UPLBEC 1569 in para 5 and 10 of the decision Hon'ble Apex Court has held as under:
"5...Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are haseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter, But even in such a case no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow the disciplinary proceedings to continue unhindered. 11 is possible that in some cases, the authorities do not proceed with the mailer as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. Bui the remedy in such cases is either to call for an explanation from the authorities in the mailer, and if it is found unsatisfactory to direct them to complete the inquiry within a suplated period and to increase the suspension allowance adequately...."
"10. We find from the charge-sheet that the allegations against the Ist respondent are grave in as much as they indicate that the a mounts mentioned there in are not deposited in the bank and forged entries have been made in t he puss hook of the relevant accounts and the amounts are shown as having been deposited. In the circumstances, the High Court should not have interfered with the order of suspension 'passed by she authorities. The Division Bench has given no reason for upholding the learned Single Judge's order revoking the suspension order. In mailers of tins kind, it is advisable l hat the concerned employees are kept out of the mischief's range. It they are exonerated, they should he entitled to all their benefits from the date of the order of suspension. Whether the employees should or should not continue in their office during the period of inquiry is a matter to he assessed by the concerned authority and ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question...."
43. In State of Orissa v. Bimal Kumar Mohanty , while dealing with the issue at length in para 12 of the decision Hon'ble Apex Court has held as under:
"12. It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to he inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegation imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to (he delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fide, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while jacing departmental enquiry or trial of a criminal charge. "
44. In Secretary to Govt Prohibition and Excise Department v. L. Srinivasan in para 3 of the decision the Hon'ble Apex Court has held as under :-
"3. The respondent while working as Assistant Section Officer, Home, Prohibition and Excise Department has been placed under suspension. Departmental inquiry is in process. We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records, which should be done in secrecy, ft is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded, by this Court would gravely prejudice the case of the parties at the enquiry and. also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied.
45. In Ram Dular Tripathi v. State of U.P. and Ors. All C.J. (2) 1997, 1416, a Division Bench of this court has held that if the allegations are not serious enough, in ordinary course to warrant major penalty, the suspension can not be resorted to and in para 14th of the Decision observed as under :-
"14. Before parting with this case it may also be observed that if the Government servants are suspended on such flimsy ground it will have adverse effect on the service which may ultimately affect the working of the government."
46. Before parting with the issue it is also necessary to make it clear that a suspension in contemplated inquiry or pending inquiry cannot be regarded as punishment, that is why it is not subject to any department appeal or revision but where it is unduly prolonged for longer time without holding any disciplinary inquiry or without any other justification available under law such as pendency of criminal investigation, inquiry or trial as contemplated by Sub-rule 2 or not justified in situation envisaged by other sub-rules of Rule 4 of 1999 Rules such suspension would be based on arbitrary exercise of power and without application of mind and offending act can also be termed as malafide for ulterior or collateral purpose i.e. purpose alien to statute or unauthorised purpose, therefore, liable to be struck down by this Court.
47. To appreciate the expression "good faith", "bad faith", "bonafide" and "malafide" more conveniently it would be useful to refer few passage of observations made by Professor H.W.R. WADE from 5th Edition of his monumental work "Administrative Law" at page 391-392 as under :
"GOOD FAITH Bad faith not dishonesty The Judgments discussed in the last few pages are freely embellished with references to good and bad faith. These add very little to the true sense, and are hardly ever used to mean more than that some action is found to have a lawful or unlawful purpose. It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds. Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context 'in good faith' means merely 'for legitimate reasons'. Contrary to the natural sense of the words, they impute no moral obliquity.
A pithy statement of Lord Macnaghten to this effect has already been quoted. He made another in Roberts V. Hopwood, dealing with the power of a local board to pay 'such wages as they think fit':
Firstly, the final words of the section are not absolute, but are subject to an implied qualification of good faith- 'as the board may bonafide think fit'....Bonafide here cannot simply mean that they are not making a profit out of their office or acting in it from private spite, nor is bonafide a short way of saying that the council has acted within the ambit of its powers and therefore not contrary to law. It must mean that they are giving their minds to the comprehension and their wills to the discharge of their duty towards the public, whose money and local business they administer.
Still more pithily, Vaughan Williams L.J. had said in an earlier case: You are acting malafide if you are seeking to acquire land for a purpose not authorised by the Act.
And Lord Greene M.R. , in the passage already quoted, treated bad faith as interchangeable with unreasonableness and extraneous considerations. Bad faith therefore scarcely has an independent existence as a distinct ground of invalidity. Any attempt to discuss it as such would merely lead back over the ground already surveyed. But a few examples will illustrate it in its customary conjunction with unreasonableness and improper purposes.
If a local authority were to use its power to erect urinals in order to place one 'in front of any gentleman's house', then 'it would be impossible to hold that to be a bonafide exercise of the powers given by the statute." If they wish to acquire land, their powers are 'to be used bonafide for the statutory purpose and for none other.' If they refer numerous cases en masse to a rent tribunal without proper consideration, this is not 'a valid, and bonafide exercise of the powers'. If a liquor licence is cancelled for political reasons, the minister who brought this about is guilty of 'a departure from good faith'. Such instances could be multiplied indefinitely.
Motives and malice ...But the Court of Appeal decided that it was not necessary to go so far as to hold the council 'guilty of bad faith'. Elsewhere in this case 'malaflde' was used merely to mean 'for an unauthorised purpose'...."
48. In this connection a reference can also be made to observations made by Hon'ble Apex Court in para 22 of the decision rendered by constitution Bench in Union of India v. H.C. Goel, as under:
"(22) We are not prepared to accept this contention. Malafide exercise of power can be attacked independently on the ground that it is malafide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bonafide exercise of power. But we are not prepared to hold that if malafides are not alleged and bonafides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it. The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bonafide; the said infirmity may also exist where the Government is acting malafide and in that case, the conclusion of the Government not supported by any evidence may be the result of malafides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of malafides...."
49. The similar view has been reiterated again by Hon'ble Apex Court in Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. , . In para 118 of the decision Hon'ble Apex Court observed as under:
"118. Fraud on power voids the order if it is not exercised bonafide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bonafide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is malafide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord. Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bonafide for the purpose for which they are conferred'. It was said by Warrington, C.J. in Short v. Poole Corporation, (1926) 1 Ch 66 that:
"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative."
50. From the aforesaid discussion it is clear that Professor H.W.R. Wade has used the expression "malafide" by reference of case law in the sense that offending act was done for a purpose not authorised under law. The expression "bad faith" has been used as contrary to the expression "good faith" and "bad faith" when offending act is either unreasonable or based on improper grounds. The expression "bonafide exercise of power" means exercise of power only for the purpose of which it was conferred and for none other. If power is exercised for other purpose or unauthorised purpose or purpose alien to the statute, the exercise of power would be malafide. The expression "malafide" can be used merely to mean for an unauthorised purpose. The aforesaid view has also approved by Hon'ble Apex Court in the cases referred herein before.
51. Thus on the basis of aforesaid discussion the legal position as emerges in given facts and circumstances of the case (without intended to be exhaustive) may be summarized as under :-
(1) The expression "inquiry" used under Rule 4(1) of new Rules, 1999, would mean, that a formal departmental inquiry for imposing either of the major penalties described under Rule 3 of the aforesaid rule. It has no reference to an informal preliminary or fact finding inquiry.
(2) The expression "an inquiry is contemplated" would mean that when on objective consideration of materials the appointing authority considers the case as one which would lead to a departmental inquiry, irrespective of whether any preliminary inquiry summary or detailed has or has not been made, if made is not complete. There can, therefore, be suspension pending inquiry even before a final decision is taken to initiate a disciplinary proceeding, i.e. before framing of the charge and communication thereof to the Government servant.
(3) To remove any doubt the expression "an inquiry is contemplated" means "an inquiry is expected". Once a firm and final decision is taken to hold a formal departmental inquiry, such an inquiry is certain and cannot be said to be 'merely "expected". Thus it may be a stage prior to such firm and final decision is taken to initiate a formal disciplinary inquiry.
(4) The expression "an inquiry is proceeding" means, when the charges are framed and communicated to the Government servant. A departmental enquiry proceeds from the stage a final decision is taken to initiate such inquiry.
(5) The expression "allegations" used in the proviso to Rule 4(1) of the Rule should not be given restricted meaning which requires to be substantiated. Once it is substantiated they may take the shape of charges and would not remain as mere allegations. Thus the expression "allegations" should not be confused with the expression "charges" which are reduced in writing in the charge sheet.
(6) As a necessary corollary of aforesaid discussion, it follows that the power of suspension under Rule 4(1) of new Rules cannot be resorted to where the allegations are not of serious in nature which may in ordinary course on being established warrant major penalty rather only minor penalties can be imposed against a government servant.
(7) Normally when there is an accusation of fabrication of false records and serious allegations of embezzlement of money are involved the delinquent employees have to be kept away from the establishment till the charges are finally disposed of.
(8) Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of employment even in such a case no conclusion can be arrived at without examining the entire record in question, hence it is always advisable to allow the disciplinary proceedings to continue unhindered. The remedy in such cases is either to call for an explanation from the authorities in the matter, and if it is found unsatisfactory to direct them to complete the inquiry within a stipulated period and to increase the suspension allowances adequately.(As held by Hon 'ble Apex Court in U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. v. Sanjiv Rajan's case (supra).
(9) The suspension is not punishment pending inquiry rather it is to refrain the delinquent employee to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to delinquent employee to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in the office to impede the progress of the investigation or inquiry.
(10) While placing an employee under suspension the authority should also keep in mind public interest and impact of delinquent's continuance in the office while facing departmental inquiry or trial of a criminal charge.
(11) The suspension should not be resorted to for indefinite period without holding any departmental inquiry or without any other justification available under law.
52. Now coming to the facts of the case it is not in dispute that while working as Veterinary Officer in the Animal Husbandry department of State the petitioner was placed under suspension vide impugned order dated 21.7.2003 passed by the State Government in contemplation of disciplinary inquiry to be held against him on the allegation of arbitrary functioning in defiance of the orders of superiors, failure to achieve the targets of prescribed policies, use of vulgar language against the subordinate officials and not functioning befitting to the post. Applying the aforesaid law as enunciated hereinbefore at cannot be said that the substance of allegations mentioned in the impugned order of suspension do not constitute misconduct of such a serious nature which on being established in ordinary course does not warrant either of major penalties described in rules of Rule 1999 and can be said to be vague and flimsy in nature on its face value.
53. At this juncture it is necessary to make it clear that under the relevant rules regarding the suspension it is not necessary that order must recites the allegations in the detail in the form of charges which are required to be framed and incorporated in the charge-sheet, while initiating formal disciplinary inquiry for imposing major penalties. Besides this, since suspension pending inquiry is not punishment and charge could be framed and communicated at the stage of initiation of inquiry and principle of natural justice is also not attracted at very threshold of suspension as held by Hon'ble Apex Court in S. Pratap Singh v. State of Punjab, , wherein a constitution Bench of Hon'ble Apex Court in para 55 of the decision has held," the order suspending the Government servant pending enquiry, is partly an administrative order. What has been held to be quasi-judicial is the enquiry instituted against the Government servant on the charges of misconduct, an enquiry during which under the rules it is necessary to have an explanation of the Government servant to the charges and to have oral evidence, if any, recorded in his presence and then to come to a finding. None of these steps is necessary before suspending a Government servant pending enquiry. Such orders of suspension can be passed if the authority concerned, on getting a complaint of misconduct, considers that the alleged charge does not appear to be groundless, that it requires enquiry and that it is necessary to suspend the Government servant pending enquiry." Thus, in view of aforesaid discussion it is clear that unless charges are framed or charge-sheet is issued and served upon the petitioner or produced before the court or the records containing complaint bearing allegations are produced before the Court, it is very difficult for us to hold that the allegations are vague or flimsy in nature at its face value and do not constitute misconduct of serious nature without having perused the record, which has not been placed before us. Therefore, the submission of learned counsel for petitioner in this regard is wholly misplaced and decision cited by him is also distinguishable on facts.
54. However, it is necessary to point out that from the date of order of suspension a period of more than 2 years have been passed and neither any charge sheet has yet been issued nor served upon the petitioner. In such circumstances, only this much can be said that complaints received against the petitioner have hardly any substance on the basis of which appointing/Disciplinary Authority could have framed a charge sheet and initiate a disciplinary proceeding for imposing major penalty against the petitioner as envisaged under Rule 7 of the aforesaid rules. As indicated earlier that on 31.7.2003 a Division Bench of this Court while directing the standing counsel to file reply of the writ petition within 2 weeks has also directed the standing counsel to file a proposed charge sheet along with the counter affidavit. A counter affidavit has been filed as noticed earlier but neither any charge-sheet or proposed charge-sheet as mentioned in the order of this Court dated 31.7.2003 has been filed along with the counter affidavit which was sworn on 21.10.2003 after expiry of about three months from the date of suspension nor there appears any indication in the counter affidavit that such charge-sheet has been framed/issued or served upon the petitioner nor any justification has been furnished through the aforesaid counter affidavit for failure to issue charge-sheet and failure to initiate formal disciplinary inquiry. It is also not the case in the counter affidavit that the allegations are of such a nature, like fabrication of false records or embezzlement of money, which requires investigation or scrutiny of record which may take some considerable time in ascertaining the facts for framing the charges. It is also not the case of respondents that suspension has been resorted to during investigation, inquiry or pendency of criminal trial, or in any other situation envisaged by other sub-rules of Rule 4 of 1999 Rules. Contrary to it impugned order recites suspension under contemplation of departmental inquiry as envisaged by Rule 4(1) of Rules 1999. Besides this, it is also necessary to mention that no interim order has been granted by this Court at any point of time either staying suspension order or staying the disciplinary inquiry contemplated against the petitioner. In such circumstances we have no hesitation to hold that inspite of lapse of a period of more than 2 years the respondent could not be able to frame the charge and issued any charge-sheet and initiate any disciplinary proceeding as contemplated in Rule 7 for imposition of major penalty against the petitioner.
55. Thus there was no scope for the respondent to sit idle without holding disciplinary inquiry to be initiated against the petitioner. Thus we have no hesitation to Hold that keeping the petitioner under suspension for such a long period without holding any disciplinary inquiry against him as indicated in the order of suspension, the respondents have no justification under law. Suspension of the petitioner in such a circumstances cannot be said to be bonafide action of the respondent and accordingly the same can be termed as arbitrary, malafide and resorted to as administrative routine, which would not be justified under law. Thus in given facts and circumstances of the case impugned order of suspension vitiates from its very inception and liable to be quashed. Accordingly impugned order of suspension dated 21.7.2003 (Annexure-5 of the writ petition) is hereby quashed. With the result the petitioner shall be reinstated in service and paid balance salary for the period of suspension, within two months from the date of production of certified copy of the order passed by this Court, before the respondent No. 1.
56. In the result the writ petition succeeds and is allowed. There shall be no order as to costs.