PETITIONER: A. K. K. NAMBIAR Vs. RESPONDENT: UNION OF INDIA & ANR. DATE OF JUDGMENT: 28/10/1969 BENCH: RAY, A.N. BENCH: RAY, A.N. SHAH, J.C. SHELAT, J.M. VAIDYIALINGAM, C.A. HEGDE, K.S. CITATION: 1970 AIR 652 1970 SCR (3) 121 1969 SCC (3) 864 CITATOR INFO : F 1974 SC1957 (12) RF 1991 SC1557 (21) ACT: All India Service (Appeal and Revision) Rules, 1955-Rule 7- Order of suspension of officer charged with criminal offence--Order is under P. 7(3) and not R. 7(1)-Mala fides--Proof of--Affidavits, verification of. HEADNOTE: The appellant was appointed to the Indian Police Service in 1935. in November 1956 he was posted in Andhra Pradesh as Inspector-General of Police and in August 1967 he was posted as Special Inspector-General of Police for revision of Police Standing Orders. In that year the Chief Minister of Andhra Pradesh ordered the Chief Secretary to make an enquiry with regard to certain allegations against the appellant. The Chief Secretary recommended that the matter be referred to the Vigilance Commissioner who advised that the matter be investigated by the Central Bureau of Investigation. Thereafter the said Bureau made an enquiry, considered the appellant's explanations and made a report. In July 1968 the Government of India, Ministry of Home Affairs placed the appellant under suspension. The appellant filed a writ petition in the High Court at Delhi and failing there filed an appeal in this Court. The appellant's contentions that fell for consideration were (i) that under sub-r. (1) of R. 7 of the All India Service (Appeal and Discipline) Rules, 1955 the order of suspension could be made only if disciplinary proceeding was initiated and the Government was satisfied that there should be an order; in the present case the order did not satisfy this condition and was therefore bad; (ii) that the Chief Minister of Andhra Pradesh was hostile to him and the investigation by the Central Bureau of Investigation was conducted by persons hostile to- him; the Ministry of Home Affairs should not have relied on the report since the enquiry was initiated and conducted mala-fide. HELD, : (i) The order in question had no reference to sub-r. (1) of R. 7, but was an order under R. 7(3) which states that a member of the service in respect of or against whom an investigation inquiry or trial is pending may, at the discretion of the Government under which he is serving be placed under suspension until the termination of all proceedings relating to the charge. The appellant, as appeared from the First Information Report against him stood charged with offences, under the Prevention of Corruption Act and the time of occurrence was the period 1960 to 967. There was an investigation and the trial was awaiting relating to the criminal charge against the appellant. The order of suspension had to be read in the context of the entire case and the combination of circumstances. This order indicated that-the Government applied its mind to the allegations, the enquiries and the circumstances of the case. The appellant had failed to establish that the Government acted mala fide. There was no allegation against any particular officer of the Government of India about being mala fide. The order of suspension, thus made under sub-r. (3) did not suffer from any vice of infringement of R. 7(1). [124 D-125 B] (ii)The affidavits of the parties in the present case suffered from the mischief of lack of verification with the result that the affidavits should C.I./70-9 122 not be admissible in evidence. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. in essence verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence. [125 C-E] The affidavit evidence assumed importance in the present case because of allegations of mala fide acts on the part of the respondents. The appellant did not name any person of the Union of India who acted in that manner and did not implied the Chief Minister as a party. In order to succeed on the proof of mala fides in relation to the order of suspension, the appellant had to prove either that the order of suspension was made mala fide or that the order was made for collateral purposes. The appellant had neither alleged nor established either of these features. [125 F-G] The allegation of mala fide against the Central Bureau of Investigation did not arise for consideration because what was in question was not its report but the order of suspension which satisfied R. 7(3) and was in honest exercise of powers. [125 H] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1406 of 1969.
Appeal from the judgment and order dated April 17, 1969 of
the Delhi High Court in Civil Writ No. 611 of 1968.
The appellant appeared in person.
Jagadish Swarup, Solicitor-General, R. L. Mehta and R. N.
Sachthey, for the respondents.
The Judgment of the Court was delivered by
Ray, J.-This appeal by certificate from the judgment of the
High Court at Delhi challenges the order dated 5th July,
1968 placing the appellant under suspension.
The appellant canvassed two grounds : first, that the order
of suspension was passed on -a report which was made mala
fide, and, therefore, the order of suspension was bad;
secondly, the order of suspension was made under sub-rule
(1) of Rule 7 of the All-India Service (Appeal and
Discipline) Rules, 1955, and is, therefore, liable to be
quashed.
The appellant was appointed to the Indian Police Service in
the year 1935. He was posted as Inspector General of Police
of the State of Andhra Pradesh, on 1 November, 1956. He was
,confirmed as Inspector General of Police, Andhra Pradesh in
the year 1957. On 14 May, 1966, he reached the age of 55
years. ‘He, however, continued to work as Inspector General
of Police, Andhra Pradesh up to 1 August, 1967. He was then
posted as Special Inspector General of Police for the
revision of Police Standing Orders.
123
Some time in the year 1967 the Chief Minister of Andhra
Pradesh ordered that the Chief -Secretary should make an
enquiry with regard to certain allegations against the
appellant. The Chief Secretary recommended that the
Vigilance Commissioner in the State of Andhra Pradesh might
be requested to look into the matter. The Vigilance
Commissioner advised that the enquiry should be conducted by
an independent agency like the Central Bureau of
Investigation. The Central Bureau of Investigation
thereafter made an enquiry. The appellant was given
allegations to answer. The appellant submitted explanation
and was examined. The Central Bureau of Investigation made
a report on the enquiry.
On 1 1 July., 1968 the Government of India, Ministry of Home
Affairs made an order placing the appellant under
suspension. The appellant alleged as follows. The Chief
Minister of the State of Andhra Pradesh was inimical and
hostile to the appellant since the time of the General
Elections in the year 1967. The investigation by the
Central Bureau of Investigation was conducted by persons who
were hostile to the appellant. The Ministry of Home
Affairs’ Government of India, should not have relied on the
report because the initiation and the conduct of the enquiry
were motivated mala fide on the part of the Chief Minister
of the State and other persons.
The other contention of the appellant was that under sub-
rule (1) of Rule 7 of the All-India Service (Appeal and
Discipline) Rules, 1955 the order of suspension could be
made only if disciplinary proceeding was initiated and the
Government was satisfied that there should be an order and
in the present case the order did not satisfy the provisions
of the rule, and therefore, the order is bad.
The pre-eminent question in this appeal is whether the order
of suspension is in infraction of Rule 7. Rule 7 is as
follows
“(1) If having regard to the nature of the
charges and the circumstances in any case the
Government which initiates any disciplinary
proceeding is satisfied that it is necessary
or desirable to place under suspension the
member of the Service against whom such
proceedings are started that Government may-
(a) if the member of the Service is serving
under it pass an order placing him under
suspension, or
(b) if the member of the Service is serving
another Government, request that Government to
place him under suspension, pending the
conclusion of the inquiry and the passing of
the final order in the case
124
Provided that in cases where there is a
difference of opinion between two State
Governments the matter shall be referred to
the Central Government whose decision thereon
shall be final.
(2)…………………………
(3) A member of the Service in respect of or
against whom, an investigation, inquiry or
trial relating to a criminal charge is pending
may, at the discretion of the Government under
which he is serving, be placed under
suspension until the termination of all
proceedings relating to that charge, if the
charge is connected with his position as a
Government servant or is likely to embarrass
him in the discharge of his duties or involves
moral turpitude”.
Rule 7 sub-rule (1) contemplates suspension when
disciplinary proceeding is initiated and the Government is
satisfied that it is necessary to place a member of the
Service under suspension. It was contended by the appellant
that the order of suspension was made under sub-rule (1) in
the present case without any disciplinary proceedings. The
order does not have any reference to sub-rule (1) of Rule 7.
The order recites first that there are’ serious allegations
of corruption and malpractice against the appellant,
secondly that the enquiry made by the Central Government
revealed that there is a prima facie case and thirdly that
the Government of India after considering the available
material and having regard to the nature of the allegations
against the appellant, the circumstances of the case is
satisfied that it is necessary and desirable to place the
appellant under suspension.
At the hearing of the appeal Mr. Solicitor General produced
the correct copy of the First Information Report dated 17
August, 1967 under section 154 of the Code of Criminal
Procedure. It will appear from the report that the
appellant was charged with offences under the Prevention of
Corruption Act, 1947 and the time of occurrence was the
period 1960 to 1967.
Sub-rule (3) of Rule 7 states that a member of the Service
in respect of, or against whom, an investigation, inquiry or
trial relating to a criminal charge is pending may, at the
discretion of the Government under which he is serving, be
placed under suspension until the termination of all
proceedings relating to that charge. The appellant
contended that the- appellant was not suspended under sub-
rule (3) of Rule 7. That is a contention The facts are that
there was an investigation and the trial is awaiting
relating to a criminal charge against the appellant. The
order of suspension has to be read in the context of the
entire case and
1 2 5
combination of circumstances. This order indicates that the
Government applied its mind to the allegations, the
enquiries and ;the circumstances of the case. The appellant
has failed to establish that the Government acted mala fide.
There is no allegation against any particular officer of the
Government of India about acting mala fide. The order or
suspension was made under subrule (3) and does not suffer
from any vice of infringement of Rule 7.
The appellant made allegations against the Chief Minister of
Andhra Pradesh and other persons some of whose names were
disclosed and some of whose names were not disclosed.
Neither the Chief Minister nor any other person was made a
party. The appellant filed an affidavit in support of the
petition. Neither the petition nor the affidavit was
verified. The affidavits which were filed in answer to the
appellant’s petition were also not verified. The reason for
verification of affidavits are to enable the Court to find
out which facts can be said to be proved on the affidavit
evidence of, rival parties. Allegations may be true to
knowledge or allegations may be true to information received
from persons or allegations may be based on records. The
importance of verification is to test the genuineness and
authenticity of allegations and also to make the deponent
responsible for allegations. In essence verification is
required to enable the Court to find out as to whether ‘it
will be safe to act on such affidavit evidence. In the
present case, the affidavits of all the parties suffer from
the mischief of lack of proper verification with the result
that the affidavits should not be admissible in evidence.
The affidavit evidence assumes importance in the present
case because of allegations of mala fide acts on the part of
the respondents. The appellant alleged that the Union of
India made the order of suspension because of the pressure
of the Chief Minister of the State of Andhra Pradesh. The
appellant, however, did not name any person of the Union of
India who acted in that manner and did not implied the Chief
Minister as a party. In order to succeed on the proof of
mala fides in relation to the order of suspension, the
appellant has to prove either that the order of suspension
was made mala fide or that the order was made for collateral
purposes. In the present case, the appellant neither
alleged nor established either of these features.
The appellant contended that the report of the Central
Bureau of Investigation was made mala fide. The appellant
appeared before the investigation authorities. We ate not
concerned with the correctness and the propriety of the
report. We have only to examine whether the order of
suspension was warranted by the rule and also whether it was
in honest exercise of powers. The order of suspension
satisfied both the tests in the present case.
126
In view of the fact that the criminal case is pending, it is
desirable not to express any opinion on the merits and
demerits of the charges as also the rival contentions of the
parties because such an opinion may cause prejudice.
The appellant raised a contention as to the vires of the
Delhi Special Police Establishment Act, 1946 and the
validity of the investigation. In view of the fact that
sanction for the trial is pending pursuant to the
investigation under the First Information Report dated 17
August, 1967 the appellant did not want a decision on this
point in this appeal because the appellant would raise that
contention in the criminal case. We have, therefore, left
open the contention as to the Delhi Special Police
Establishment Act, 1946 to enable the appellant to agitate
that contention, if so advised, in the criminal trial.
The appeal, therefore, fails and is dismissed. In view of
the fact that there was no order as to costs in the High
Court, we are of opinion that each party should bear its
costs in this Court.
G.C.
Appeal dismissed.
127