Civil Appeal No 292 of 1973
Appeal by special leave from the judgment and order dated the 25 4 1972 of the orissa High Court of Judicature at Cuttack in OJC No 82 of 1968
section N Andley and A Subbarao for the appellant
M C Bhandare and B Parthasarathi for respondent No 3
Ms section N Prasad and Girish Chandra for respondent No 4
The Judgment of the Court was delivered by E UNTWALIA J
The appellant in this appeal by special leave is Shri D D Suri an erstwhile member of the Indian Administrative Service in the cadre of the State of Orissa
Shri A K Barren IAS the Chief Secretary to the Government of orissa at the relevant time was impleaded as respondent No 1
He died during the pendency of this appeal
Therefore his name is directed to be expunged
For the sake of convenience however he will be referred to hereinafter in this judgment as respondent No 1
Shri section K Ghosh l
PS respondent No 2 was at the relevant time Director of Vigilance and Additional Secretary to the Government of orissa in the Political and Services Department
He has since retired and no notice of this appeal could be served on him
Even so the appeal proceeded to hearing as for the disposal of this appeal his appearance was not necessary
The State of orissa is respondent No 3 and the Government of India is respondent number 4
Respondents 5 and 7 are other officers of the Government of Orissa
It is an unfortunate protracted litigation with a chequered history
Yet we do not find it possible to bring it to conclusion by our judgment
The appellant was appointed to the Indian Administrative Service and joined as an Additional District Magistrate in the State of orissa in November l950
According to his case due to some actions which he took against some big political persons he incurred their displeasure 352 in the year 1952
Sometime after he came on deputation to the centre but went back to orissa in April 1965
At the relevant time in the year 1967 he was serving as Commissioner of Land Reforms orissa
According to his case he had disputes differences and animosity with respondent No 1 and later with respondent No 2 also
The appellant by stating very many facts which are not necessary to be enumerated in this judgment endeavoured to make out a case of male fides against respondents 1 and 2 and asserted that he was put to trouble and unwarranted and illegal actions were taken against him by or at the instance of respondents 1 and 2
A First Information Report was lodged and Sambalpur Vigilance PS Case No 231967 was instituted against the appellant on November 24 1967 under section S2 of the Prevention of Corruption Act 1947
An application for search warrant was made before the Additional District Magistrate Sambalpur on the same date ie 24 11 1967 and a search warrant was issued
The appellant s house at Cuttack was searched on and after 27 11 1967
An order of suspension was made against the appellant by the Government of orissa on the 28th November 1967 under Rule 73 of the All India Services Discipline and Appeal Rules 1955 hereinafter referred to as the Rules
The appellant filed a writ petition OJC 821968 in the orissa High Court in January 1968 to challenge the order of suspension and the investigation made and proceeded against him
The writ application was dismissed by the orissa High Court in limine
Civil Appeal No 67970 filed by special leave against the order of the orissa High Court was allowed by this Court on 22 l0 1970
The writ application was directed to be admitted and disposed of in accordance with law
Certain subsequent developments and events are necessary to be noted
The State Government moved the Central Government on November 23 1968 after stating the facts in detail to accord sanction for prosecution of the appellant as the materials collected during investigation revealed a prima facie case in relation to the charges of cor ruption and misuse of his official position by the appellant
In spite of reminders the Central Government neither accorded sanction for the prosecution of the appellant nor refused it
Without sanction of the Central Government no Charge Sheet could be submitted against the appellant for his prosecution so long he remained in government ser vice
It seems
however that the appellant was compulsorily retired by the appropriate government on June 9 1971
Thereafter on November 8 1971 Charge Sheet was submitted against him in the Court of the Special Judge Sambalpur
In Transfer Petition No 273 this Court transferred the case to the file of another Special Judge
On the splitting up of the original case the trial of several cases proceeded against the appellant in the Court of the Special Judge
The trial concluded but because of the stay order passed by this Court judgment could not be delivered until the disposal of this appeal and LPA 373 pending in the Delhi High Court
Against the order of compulsory retirement the appellant fired a writ petition in the Delhi 353 High Court
It was dismissed by a learned single Judge on November 16 1972
LPA 373 is directed against the said order of dismissal A Bench of the orissa High Court by its order dated the 25th April 1972 the order under appeal has again dismissed the writ petition OJC 821968 as being infructuous
It has taken the view that since the appellant has already retired from service he is no longer under suspension
Therefore the legality of the suspension order is not necessary to be examined
Nor did the High Court think it necessary to examine the legality of the investigation against the appellant as Charge Sheet had already been submitted
Mr section N Andley learned counsel for the appellant asked us to quash the suspension order and strenously urged the following three grounds 1 That it was passed without taking the various preliminary steps of prelirninary enquiry or investigation as was necessary to be done in view of the various governmental instructions
D 2 That the order was not warranted by and was in violation of Rule 73 of the Rules
3 That the charges levelled against the appellant were all baseless frivolous and false
They were levelled and the suspension order was made mala fide
In support of the first submission our attention was drawn to the various executive instructions issued by the Central Government as also the State Government of orissa to show as to how and in what manner preliminary steps had to be taken and enquiry made by the governmental authorities concerned before putting a government servant and especially a member of the Administrative Service under suspension
Counsel submitted that nothing was done in accordance
with those instructions before the lodging of the First Information Report on November 24 1967
The action was taken male fide in all haste without observing the requirements of the law as contained in the executive instructions
On the other hand Mr M C Bhandare counsel for the Government of orissa pointed out that the Vigilance Department of the state Government had made preliminary enquiries and then taken action
We do not consider it necessary to discuss in any detail or record any definite finding one way or the other in respect of this bone of contention between the parties
We may only observe that all instructions contained in the various letters and circulars of the Central Government do not seem to have been strictly followed
But that will not invalidate or nullify the order of suspension made under Rule 73 of the Rules
In dealing with the cases of high officers of the Administrative Service care ought to have been taken to follow the instructions as far as possible
Yet on the facts of this case we are not prepared to hold that failure to follow the instructions fully per se made the order of suspension invalid
354 Sub rule 1 of Rule 7 of the Rules provides for the placing under suspension a member of the service against whom any disciplinary proceeding has been initiated
Under that sub rule without the initiation of the disciplinary proceeding an order of suspension could not be made
Under sub rule 2 a member of the service who is detained in official custody for a period longer than 48 hours is to be deemed to have been suspended by the government concerned
We shall now read sub rule 3 of Rule 7
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
 Under the sub rule aforesaid it is clear that a member of the service can be placed under suspension if against him an investigation inquiry or trial relating to criminal charges is pending
The expression investigation  inquiry  or trial  are well known in the realm of the criminal law under the Code of Criminal Procedure
In the instant case when a First Information Report was filed against the appellant and steps were taken for obtaining a search warrant for the search of his house investigation within the meaning of Rule 73 became pending on and from November 24 1967
The suspension order therefore made on November 28 1967 was well within the ambit of the power of the government under the said provision of law
Most of the charges levelled against the appellant and at this stage we do not know whether they were right or wrong true or false were in relation to his alleged acts of corruption and misuse of his official position
In our view the making of the suspension order against the appellant under rule 73 of the Rules was legal and valid
But did It come to an end if so when  The rule provides that the suspension order may last until the termination of all proceedings relating to the charges
Appellant s counsel submitted that as mentioned in one of the letters of the State Government to the Central Government the investigation was complete on November 23 1968 hence on the termination of the investigation the suspension order terminated
We have no difficulty in rejecting this argument as unsound
Under rule 73 the suspension order can be made to continue until the terminanation of all proceedings viz investigation inquiry or trial which may follow the investigation
Strictly speaking the investigation could not be said to be complete until the submission of the Charge Sheet
Factual completion of the investigation in November 1968 did not terminate all proceedings in relation to the charges levelled against the appellant
But obviously the suspension order came to an end by the compulsory retirement of the appellant
After retirement from ser vice he could no longer be deemed to be under suspension
355 During the hearing of the appeal and in view of certain new stands A taken in the petition filed in this Court by the appellant an interesting point cropped up and that is this
What was the effect of the appellant s compulsory retirement on his suspension  He was not prosecuted before his retirement
What is to be the effect of his retirement on the appellant s pay and allowances for the period of his suspension viz between November 28 1967 and June 9 1971
Does rule 9 of the Rules cover the appellant s case   If so is he entitled to an order in his favour for paying him full pay and allowances for the said period because he was made to compulsorily retire without any stigma and not by way of punishment  We did not feel persuaded to decide this aspect of the matter for the first time in this appeal
Since we are remitting the case back to the High Court we permit the appellant to raise this point there if necessary by amendment of his writ petition
We may however hasten to add that the counsel for the State of orissa assured us that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings then the State Government will pay him his full pay and allowances for the period of his suspension
Evidence at the trial is over and only the judgment has to be delivered
Without the aid of the judgment in the criminal cases we did not find it advisable or possible to decide the third point urged on behalf of the appellant
On the materials in the records of this case it will not be possible to say that the charges levelled against the appellant were false and that action was taken against him mala fide
The two matters are so interwoven and interconnected that we think it expedient to leave the matter for a fresh decision by the High Court after the judgment is delivered at the criminal trial which is already concluded
We vacate the order of stay made by this Court and direct the Trial Judge to deliver his judgment without any further delay
The High Court if necessary will go into the question of mala fides when the case goes back to it on remand and it will do so taking note inter alia of the judgment in the criminal cases
Nothing we have said in this judgment is meant to prejudice either party in the disposal of the letters patent appeal pending in the Delhi High Court in which the appellant is persuing his challenge to the order of his compulsory retirement
But it will be desirable may necessary to dispose of LPA 31973 pending in the Delhi High Court at a very early date so that the judgment may be made use of by 
either party if necessary in the orissa High Court in aid of the disposal of the case being remitted back by us to that court
In the result we allow this appeal set aside the order of the High Court remit the case back to it for fresh disposal in the light of this judgment
We make no order as to costs
PHP Appeal allowed


Summary:
The appellant was an erstwhile member of the Indian Administrative Service in the cadre of the State of orissa
At the relevant time in the year 1967 he was serving as Commissioner of Land Reforms orissa
According to the appellant he had disputes differences and animosity with respondent No 1 the Chief Secretary to the Government of orissa and respondent No 2 who was at the relevant time Director of Vigilance and Additional Secretary to the Government of orissa
The First Information Report was lodged against the appellant under section S2 of the Prevention of Corruption Act 1947 on 24 11 1967
The appellant s house was searched on 27 11 1967
An order of suspension was made against the appellant by the Government of orissa on 28 11 1967 under rule 73 of the All India Services Discipline and Appeal Rules 1955
The Writ Petition filed by the appellant against his order of suspension and investigation was dismissed by the High Court in limine
This Court allowed an appeal filed by special leave by the appellant against the High Court judgment and directed the High Court to admit and dispose of the petition in accordance with law
The State Government approached the Central Government to accord sanction for prosecution of the appellant
In spite of reminders the Central Government neither accorded the sanction nor refused it
Appellant was compulsorily retired by the Government in 1971
Thereafter charge sheet was submitted against him in the Court of the Special Judge Sambalpur
The trial concluded but because of the stay order passed by this Court judgment could not be delivered
Against the order of the compulsory retirement the appellant filed a writ petition in the Delhi High Court which was dismissed by a learned single Judge and against which a Letters Patent appeal is pending
The orissa High Court dismissed the writ petition of the appellant on the ground of it having become infructuous since the appellant was no longer in suspension since he was compulsorily retired
The High Court also did not think it necessary to examine the legality of the investigation against the appellant as chargesheet had already been submitted
In an appeal by special leave the appellant contended The suspension order may be quashed on the following grounds 1 It was passed without following the various Governmental instructions on the point
2 The order was in violation of rule 73
3 The order was malafide
 HELD 1 It is true that all the instructions contained in the circulars issued by the Central Government do not seem to have been strictly followed
That would however not invalidate or nullify the order of suspension made under rule 73
In dealing with the cases of high officers of the Administrative Service care ought to have been taken to follow the instructions as far as possible
On the facts of the present case
however
failure to follow the instructions fully does not render the order of suspension per se invalid
353GH 2 Under rule 73 a member of the Service in respect of or against whom an investigation enquiry or trial relating to a criminal charge is ponding may at the discretion of the Government be Placed under suspension
The 351 expression investigation enquiry and trial are well known in the realm of the A criminal law under the Criminal Procedure Code
In the present case the First Information Report was lodged and the search warrants were issued before the suspension orders were passed
Most of the allegations against the appellant were in relation to his alleged acts of corruption and misuse of his official position
Whether the allegations are true or false is irrelevant
Order under rule 73 was therefore legal and valid
354A E 3 The suspension order came to an end by the compulsory retirement of the appellant
After retirement from service he could no longer be deemed to be under suspension
Since we are remitting the case back to the High Court we permit the appellant to raise the question of his salary and emoluments during the suspension period to be raised in the High Court
The counsel for the appellant however assured this Court that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings the State Government would pay him his full pay and allowances for the period of suspension
354G H 355B C 4 We do not think it advisable to decide the point of malafide in the absence of the judgment in the criminal cases
Since the two matters are so interwoven and interconnected that it would be expedient for the High Court to decide this issue after the judgment is delivered in the criminal trial
3 55D E