S. PRATAP SINGH versus THE STATE OF PUNJAB

RAGHUBAR DAYAL J.-This appeal, on a . certificate granted by the High Court of Punjab, is directed against its order dismissing the appellant's petition under Art. 226 of. the Constitution praying for quashing, by a writ of certiorari or other suitable directions, the orders of the Punjab Government (i) suspending him; (ii) revoking his leave; (iii) compelling him to continue in service after he had attained the age of superannuation, and (iv) ordering a departmental enquiry against him.

pp. 765–766

The appellant, Sardar Partap Singh, Joined the Punjab Civil Medical Service, Class I, in 1947. He joined the service as a direct recruit on August 21, 1947. His previous service in the Indian Medical Service from 1934 to 1939, in the Punjab Civil Medical Service from April 1940 to June 1941 and in the Indian Military Service in temporary rank till about the end of 1945, has no bearing on the terms of his service as a member of the Punjab Civil Medical Service, Class I.

p. 766

The appellant reached the Selection Grade of the Civil Medical Service, Class I, in January 1955 and was transferred to Jullunder as Civil Surgeon in April 1956. He remained there till he proceeded on leave preparatory to retirement sometime in December 1960. His leave was sanctioned on December 18, 1960, and was notified in the Punjab Gazette dated January 27, 1961.

p. 766

On June 3, 1%1, the Governor of Punjab ordered the suspension of the appellant with immediate effect as the Government had decided that a departmental enquiry be instituted against him under r. 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. The Governor further passed an order under r. 3.26( d) of the Punjab Civil Srvices Rules. These rules were issued under the proviso to Art. 309 of the Constitution and came into force from April 1, 1953. They have been referred to as the 1959 rules in the judgment of the High Court and at the hearing as they were amended from time to time and were re-printed in 1959. We shall also refer to them as the 1959 rules. The Governor's order under r. 3.26( d) of these rules was that in view of the appellant's reaching the age of superannuation on June 16, 1961 he be retained in service beyond that date till the completion of the departmental enqmry.

p. 766

The orders of the Governor were communicated to the Director, Health Services, Punjab, by the Secretary to the Government in the Medical and Health Department by his letter Annexure J dated June 3, 1961. The Director, Health Services, communicated these orders to the appellant by a letter, Annexure I, dated June 3, despatched under postal certificate. He further sent a copy of that letter and its enclosures by registered post to the appellant on June 5, 1961. The registered cover was further marked 'express delivery'. Copies of this letter were sent to the then Civil Surgeon, Jullunder, and the Accountant General, Punjab, for information.

pp. 766–767

On June 10, 1961, notifications about the Governor's placing the appellant under suspension and fixing his headquarters at Chandigarh and about his revoking, with effect from June 3, the leave preparatory retirement which had been sanctioned to him and retaining him in service until the enquiry into the charges against him be concluded and a final order passed, were published in the Punjab Government Gazette Extraordinary dated June 10, 1961. The Director, Health Services, Punjab, forwarded to the appellant, with his letter dated 3/llth of July 1961, a memorandum dated June 29, 1961, statement of charges and statement of allegations which he had received from the Secretary to Government, Punjab, Vigilance Department, for the appellant's submitting such explanation as he might desire. This letter purported to be with reference to enquiries nos. 70, 3 and 27 dated October 29, 1960, January 11, 1961 and April 17, 1961 respectively against the appellant.

p. 767

The appellant challenged, by his writ petition, the legality of the orders of suspension, revocation of leave, retention in service after the date of superannuation and institution of the departmental enquiry, on various grounds. The competency of the Governor to make the orders was questioned. It was alleged that unjustified personal grievances arose between the appellant and Sardar Partap Singh Kairon, Chief Minister of Punjab, in or about 1960 that the impugned orders were passed ma/a fide in the exer~ rise of power, if any, vested in the respondent, the State of Punjab in the Ministry of Health, that this was an abuse of power and was intended to feed the grudge of the Chief Minister against him.

p. 767

The respondent State refuted the contention that the impugned orders were passed mala fide on account of the alleged grievances of the Chief Minister and stated that the Government was competent under rules governing the services of the appellant to pass the impugned orders and that the appellant's allegations had nothing to do with the orders suspending him and revoking his leave preparatory to retirement

p. 768

The High Court agreed with the contention for the respondent and dismissed the appellant's petition. On the appellant's application, it granted the necessary certificate under Art. 133(1) ( c) of the Constitution. ·

p. 768

The appellant has questioned the correctness of the impugned orders, broadly speaking, on two grounds. One is that the rules governing his service did not empower the Governor to pass the impugned orders. The second is that the impugned orders were passed mala fide as the Chief Minister, who was in charge of the department of Health, bore ill-will towards him.

p. 768

The first contention has been urged before us in various ways and we deal with the more salient and important aspects urged to support the contention that the impugned orders could not have been passed by the Governor in view of the various rules.

p. 768

It is contended that leave, once sanctioned, cannot be revoked after the officer has proceeded on leave. He can only be recalled to duty. The appellant was not recalled to duty as he was not posted to any post of a civil surgeon.

p. 768

Rule 8.15 of the 1959 rules reads : "Leave cannot be claimed as of right. When the exigencies of the public services so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it.

p. 768

* " * " * * It follows therefore that the authority granting leave has the discretion to revoke it. There is no restriction on the power of revocation with respect to the time when it is to be exercised. It can be exercised before the officer to whom leave was granted proceeds on leave. It can also be revoked after he has proceeded on leave. Revocation of leave simply means cancelling the leave granted. The exigency necessiating the revocation of leave may arise after the officer has proceeded on leave. Rule 8.3 has no bearing on the question as it provides that the rules following it govern the procedure for making applications for leave and for granting leave in India. It deals with the procedure and not with the right of the officer to leave or with the power of the necessary authority to sanction or refuse leave or revoke leave. Rule 8.42 deals with matters incidental to the recall from leave and in no way affects the discretion of the authority to revoke leave. In fact, recall to duty must follow the revocation of the leave with respect to the period not availed of till then.

pp. 768–769

The next contention is that when a Government servant proceeds on leave preparatory to retirement, he ceases to hold office and to be in the employment of Government and that in fact he practically retires on the date he avails of the leave and consequently no question of his suspension can arise. This contention, again, has no force. A Government servant is in service till his service terminates and the service can terminate only by dismissal, removal or retirement. The date from which a Government servant is on leave preparatory to retirement cannot be treated as the date of his retirement from service.

p. 769

It is also urged that a Government servant on leave preparatory to retirement cannot be suspended as suspension means a person's ceasing to work on the post he holds and the public servant on such kave holds no office or post and therefore he cannot be effectively suspended. Suspension of a Government servant, during the course of his service, simply means that no work is to be taken from him during the period of suspension. The Government servant does l!Ot work on a post during the period of his suspension. If he is actually discharging the duty of a certain office prior to suspension, · the order of suspension would mean that he would cease to work on and discharge the duties of that post. If at that time he is not working on any post but is on leave, no question of his actually ceasing to work or giving up the discharge of duty arises, but that does not mean that the order of suspension would be ineffective. The Government servant, during suspension or on leave, holds a lien on his permanent post in view of r. 3.13 unless his lien is suspended or is transferred under the appropriate rule and so has a title to hold that post when under suspension or on leave.

pp. 769–770

We may refer to the case reported as Khem Chand v. Union of India(') wherein the rule that a Government servant be deemed to be on suspension during the period between the date of dismissal and the date of its being set aside, was held valid. Suspension during such period is analogous to suspension during the period of leave after revocation of leave for that period.

p. 770

Another contention is that the order revoking the leave must precede the order of suspension, ·and as the order of suspension was before the revocation of his leave it is bad. We do not agree with this contention. Notifications about the suspension and revocation of leave from June 3, 1961, were issued on June 3, 1961. The order of suspension bears an earlier number than the order about the revocation of leave. The order in which the two orders were issued does not affect in substance the validity of the two orders so long as the Governor had the power to suspend the appellant and revoke his leave. Orders may be issued in any sequence.

p. 770

The next contention is that these orders of June 3 were actnally communicated to the appellant after the date of his retirement and is therefore ineffective. The appellant's date of birth is June 16, 1906. The order of snspension reached the appellant, according to his statement, on June 19, 1961, though it was despatched by the Director, Health Services, Punjab, on June 3, 1961. The envelope containing the letter was addressed to the appellant by his Kanpur address which he appeared to have furnished to the office. The appellant was apparently not at Kanpur when the letter reached him and the letter took unduly long on being redircted to the address where it was delivered to the appellant. There is not sufficient material on the record to show when it was redirected and what caused this delav. The Director, Health Services, not only addressed ai;i ;rdinary cover under postal certificate to the appellant but also followed it up by a registered letter on June 5. The Government, not having received an acknowledgement of the appellant with respect to the receipt of the orders of suspension etc., published the orders in the Punjab (1) [1963] Supp. 1 S.C.R. 229. Government Gazette extraordinary dated June IO. Ordinarily, the notification about these orders would have been published in the Gazette in due course. They were published in the Gazette Extraordinary as the Government, it appears from the written statement, had the impression that the appellant was avoiding the receipt of the letters addressed to him. There was a reason for their anxiety to see that the orders could be made known to the appellant as he was due to retire from June 16, 1961. The newspapers also, according to the appellant's own petition, published in their issues of June 15 about the notification concerning the respondent in the Gazette Extraordinary. The orders of the Government ordinarily take effect from the moment they are issued except when they cannot be effective due to their nature. An order of suspension of the appellant when he was on leave could be effective from the moment it was issued.

pp. 770–771

The appellant was on leave and was not discharging any official functions. If he had been actually on duty, the order of suspension would have taken effect from the moment it reached him and from which moment alone the appellant could have complied with that order by ceasing to work any further in the discharge of his duties. It is therefore immaterial whether the publication of the orders in the Gazette Extraordinary amounted to sufficient notice to the appellant of the various orders and whether the letters communicating to him the orders reached him after the due ·date of retirement. In the present case the orders were effective from June 3, 1961, and their validity and effect did not depend on the date of communication to the appellant.

p. 771

The case reported as Bachhittar Singh v. State of Punjab(') is not apposite and does not support the contention. It was not a case of suspension. In that case a Government servant preferred an appeal against his dismissal by the Revenue Secretary of Pepsu Government ta the state Government of Pepsu. The Revenue Minister recorded his opinion that instead of dismissing him he be reverted to his original post. Thereafter, the State of Pepsu merged with the State of Punjab. The remarks of the _ R~_venue Minister were not communicated to the appellant.

p. 771

(1) S.c-:- 395.

p. 771

Subsequent to the merger, the Chief Minister, Punjab, dismissed the appeal. This order was communicated to the appellant. The remarks of the Revenue Minister of Pepsu were held not to be an order of the State Government and, in the context of that case, it was said at p. 398:

p. 772

"Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. (1) of Art. 166 and then it has to be com-

p. 772

municated." The remarks of this Court in State of Punjab v. Sodhi Sukhadev Singh(') and quoted in this case, do not go so far and lay down that a final decision by the Council of Minister becomes an order when the Rajpramukh acts upon it by issuing an order in that behalf to the respondent. The further following remarks should be construed in the same context:

p. 772

"Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is cominunicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and therefore till its communication the order cannot be regarded as anything more

p. 772

than provisional in character." These observations therefore refer to an order made in the -cirrnmstances of that case. It is to be noted that in both these cases, no formal order was at all made by the Government. The impugned orders in the present case were formally issued by the Governor on June, 1961, and were even published in tlie. Gazette extraordinary on June 10. They were final orders. 01 course, the Governor could, at any time, pass further orders superseding those orders. The possibility of a cliange in the order is not the main basis for considering whether a certain order is effective or not.

p. 772

The main contention of the appellant, however, is that r. 3.26( d) of the 1959 rules is not applicable to him and that if it be applicable, his case is not covered by the terms of that rnle. The appellant joined the Punjab Civil Medical AIR S.C. 493, 512. Service, Class I, in 1947. At that time the Punjab Civil Medical Services, Class I (Recruitment and Conditions of Service) Rules, 1940, hereinafter called the Medical Rules, were in force. They were made by the Governor of Punjab in the exercise of powers conferred on him by cl. (b) of sub-s. ( 1) and cl. (b) of sub-s. (2) of s. 241 of the Government of India Act, 1935. Rule 13 of the Medical rules "In respect of leave, pension and other cognate matters not specifically mentioned in these rules, members of Service shall be governed by such general rules as may be framed in that regard by the Governor of the Punjab, under cl. (b) of sub-s. (2) of s. 241 of the Gov-

pp. 772–773

ernment of India Act, 1935." The Punjab Civil Services Rules were also made by the Governor of Punjab under s. 241 of the Government of India Act and came into force from April 1, 1941. They too were in force at the time the appellant joined service. Rule 3.26 ( d) did not find place in the 1940 rules. The 1959 rules which, as already stated, really came into force in 1953, have this rule. It reads :

p. 773

"A Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge is concluded and a final order

p. 773

is passed thereon." The contention for the appellant is that the rule with respect to the retirement of a Government servant relates to a matter cognate to pensions and that therefore, in view of r. 13 of the Medical rules, matters of his retirement would be governed by the 1941 rules. We are of opinion that the question of retirement of a Government servant on superannuation or otherwise is not a matter cognate to pensions. Pension follows retirement and may be said to be incidental to it. Rule 13 of the Medical rules therefore does not govern the terms of retirement of the appellant. It is r. 17 of the Medical rules which would govern the matter of his retirement. This rule reads:

p. 773

"In all matters not expressly provided for in these rules the members of the service shall be governed by such general rules as may have been or may hereafter be framed by Government and by the provisions of the

pp. 773–774

Government of India Act, 1935." It is clear from this rule that in the matter of retirement the appellant would be governed by such general rules as might have been made by the Government at the time the Medical rules were made or as would be made by the Government subsequently. The latest general rules governing the retirement of Government servants will govern the retirement of the appellant even if it be assumed that the Medical rules still govern his conditions of service.

p. 774

Rule 3.26( d) is therefore applicable to the appellant.

p. 774

The further contention of the appellant is that this rule applies to a government servant under suspension on a charge of misconduct and therefore to a Government servant against whom a formal departmental enquiry has been instituted for enquiring into the charges of misconduct framed against him and that no such charge being framed and no such departmental enquiry being instituted prior to the order of suspension of the appellant on June 3, 1961, the order of suspension cannot be treated to be an order under r. 3.26(d). We do not agree. There is no Justification to give such a restricted meaning to the word 'charge' in this rule. The appellant refers to r. 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, hereinafter called the Punishment and Appeal Rules, This rule reads:

p. 774

"(1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, no order of dismissal, removal or reduction, shall be passed against a person to whom these rules are applicable, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

p. 774

(2) The grounds on which it is proposed to take such action, shall be reduced to the form of a definite . charge or charges which shall be communicate~ in writing to the person charged and he shall be requtred within a reasonable time to state in writing whether he admits the truth of all, or any, of the charges, what explanation or defence, if any, he has to offer and whether he desires to he heard in person. If he so ,desires, or if the authority empowered to dismiss, remove or reduce him so directs, an oral enquiry shall be held at which all evidence shall be heard as to such of the charges as are not admitted."

pp. 774–775

This rule comes into play only after a prima facie case is made out against a Government servant and not at the state of a preliminary investigation into accusations made against a Government servant. But it does not follow that suspension is not permissible till this stage of making a formal charge arrives. Rule 3.26(d) is of general application and therefore the expression 'charge of misconduct' in this rule is not to be interpreted narrowly as meaning 'the charges formally framed and communicated to the governmef!t servant concerned' with the intimation that a formal departmental enquiry had been initiated against him on those charges. The appellant's contention does not find any support, as urged, from the last portion of this rule which reads 'until the enquiry into the charge is concluded and a final order is passed thereon'. Of course, the enquiry would be into the charges of misconduct on account of which the Government servant has been suspended and the suspension will continue till a final order is passed on those charges. The requirements of the last portion of this rule do not in any way lead to the conclusion that the enquiry into the charges refers to a formal departmental enquiry into the charges framed and communicated to the Government servant in accordance with r. 7 of the Punishment and Appeal rules. We are of opinion that whenever any charge of misconduct is under enquiry by the Government, be it informally or formally, the Government is competent to suspend the Government servant and if the requirements of the case require to take action under r. 3.26(d).

p. 775

It was contended that the appellant's suspension without calling him to explain the charges first, was had as the proceedings to suspend him were of a quasi-judicial charact~r and the~efore necessitated the Government's obtaining his explanat10n to the charges of misconduct before passing the order of suspension. The order suspending the G?v~rnfl1;ent servant pending enquiry is partly an ad- :n1~1~trat.1ve order. . W~at has been held to be quasi- 1udmal 1s the enqmry mstituted 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.

pp. 775–776

Explanation I to rule 2.2 (b), Vol. II, 1959 rules, supports the view that there can be suspension of a Government servant even prior to the issue of charges of misconduct to him, the Explanation being, "Departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date''.

p. 776

Bachhittar SinKh's Case(') is no authority for the contention that the initial order of suspension pending enquiry must be made after obtaining the explanation of the Government servant concerned. That question did not at all arise for consideration in this case.

p. 776

In this connection we may also deal with another contention of the appellant that the 1941 or 1959 rules do not empower the Government to suspend a government servant pending an enquiry. It is contended that the suspension contemplated by the rules is the suspension which comes under r. 7.5, 1941 rules, or under rules 7.5 and 7.6 of. the 1959 rules. These rules do not invest the Government with the power of suspension, but only provide either for certain periods during a Government servant's service to be deemed to be periods during which he was under suspension or during which he be placed under suspension in view of the various exigencies mentioned in those rules. No such formal rule is to be found in any of these rules. The power of suspending a Government servant is vested in the authority which appoints the Government servant in view of s. 16 of the General Clauses Act, 1897.

p. 776

A.LR. 1963 S.C. 395.

p. 776

The other substantial contention for the appellant in connection witb the inapplicability of r. 3.26(d) to his case is that, under the 1941 rules which governed his service initially, he had a right to opt for retirement on superannuation and that therefore the 1959 rules could not adversely affect that right and empower the Governor to retain the appellant in service after the date of superannuation without the consent of the appellant.

p. 777

Rule 1.6 of tbe 1959 rules provides that nothing in those rules shall operate to deprive any person of any right or privilege to which he is entitled by or under any law or by the terms of his agreement. Rule 5.28, Vol. II, 1941 rules reads:

p. 777

"A Government servant in Superior service who has attained the age of 55 years may, at his option, retire

p. 777

on a Superannuation pension." The contention of the appellant is that this rule gives him the right to retire on superannuation pension on attaining the age of 55 years and that therefore he cannot be retained in service after he had attained that age without his consent, that he cannot be deprived of this right by the 1959 rules and that therefore r. 3.26(d) could not be applicable to him after he had attained the age of 55 years.

p. 777

There is nothing corresponding to r. 5.28 of Vol. II of 1941 rules in Vol. II of the 1959 rules. It appears that r. 5.28 of the latter volume was cancelled. When the retirement of the appellant, as already held, is governed by the 1959 rules and not by the 1941 rules, the right, if any, given by the 1941 rules to the appellant to opt for retirement could not be said to be a right which comes within r. 1.6 of the 1959 rules as rule 1.6 preserves such rights to which the Government servant be entitled by or under any law or by the terms of his agreement. It contemplates such rights which the law in force gives to the Government servant at the time the 1959 rules are in force. When the 1941 rules do not govern him now, it cannot be said that he has a right to opt for retirement on attaining the age of 55.

p. 777

Rule 5.28, aforesaid, is in Vol. II of the 1941 rules which embodies the rules relating to pensions and provident fund and therefore the proper interpretation of that rule would be that it provides for and permits the grant 50-2 of superannuation to a government servant who has opted to retire after attaining tile age of 55 years on being required by the Government, in the exercise of its powers under r. 3.26 of Volume I, to continue in service. This is clear from the sequence of rules in Volume II. Section 4 of Chapter V deals with superannuation pension. Its part I deals with conditions of grant. This part has got three rules 5.27, 5.28 and 5.29. The other part deals with procedure. Now, r. 5.27 provides that superannuation pension is granted to a Government servant in superior service entitled or compelled to retire ~t a particular age. This rule refers to the Government servant to whom superannuation pension is granted. Rule 5.28 follows this rule under the heading 'conditions of grant' and therefore is to be interpreted to mean that superannuation pension can be granted to a Government servant in superior service who is retired at his option after he has attained the age of 55 years.

pp. 777–778

Assuming however that the appellant had a right to retire on attaining the age of 55 years in view of this rule or r. 3.26(a), that right is subject tor. 3.26(d) in as far as this rule provides that no Government servant would be permitted to retire on his reaching the date of compulsory retirement if he be under suspension on a charge of misconduct.

p. 778, margin A

It is also contended that r. 3.26(d) applies to those Government servams whose date of compulsory retirement, i.e., the date on reaching which they could be retired or permitted to retire, precedes the date of superannuation on which date they must retire. There is nothing in this rule or in note no. 3 to r. 3.26 which should make us construe the expression 'date of compulsory retirement' to be the date on reaching which they can be retired or permitted to retire prior to the actual date of superannuation. No such rule was really necessary for such cases as it was not incumbent on the State to require the officers reaching such an age to retire. Requiring them to retire at that age was an option with the Government. The expression 'date of coinpulsory retirement' in r. 3.26( d) must really refer to the dates mentioned in the earlier clauses of r. 3.26 and they are tho'e on which the Government servant attains the age of 55 years or any of the ages mentioned in clauses (b) and ( c) of that rule. Clause (b) provides that certain Government servants should be required to retire at the age of 60. Clawe (c)(i) provides for the retirement of certain officers on reaching the age of 55 years and empowers the Government, however, to require them to retire on reaching the age of 50 years in certain circumstances. The expression 'required to retire' would certainly refer to these officers whose cases come within the preYiom clauses of r. 3.26 and may also be applicable to GoYernment servants who may be required to retire under any other rule in particular circumstances. The width of the rule cannot clearly make the rule inapplicable to the cases covered by the earlier clauses of r. 3.26.

pp. 778–779, margin A

The expression 'permitted to retire', again, would refer to cases where the Government servant opts to retire in vie..y of certain rules providing for his exercising such an option. _. ,

p. 779

The following observations at p. 579 of the case reported as The State of Bombay v. Saubhagchand M. Doshi (1) do not support the contention of the appellant. They simply mean that the question under consideration in that case could arise in those circumstances, the observation being:

p. 779

"It should be added that questions of the above character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated bet-

p. 779

ween these two points of time." The question raised in that case was whether the order of compulsory retirement amounted to an order of dismissal or removal or not.

p. 779

We are therefore of opinion that the appellant had no absolute right to opt for retirement on his attaining the age of superannuation, that any such option was subject to r. 3.26( d) which applies to him and that his case comes under that rule as he was on the date of his compulsory retirement under suspension on charges of misconduct.

p. 779

It is true that no question of Government retaining a Government servant in service on his attaining the age of 55 years arises if the officer had once retired on attaining that age. If the Government desires to have the advant;ige --c'f [J958f S.C.R. 571.

p. 779

of his services after he had retired, the only course open to the Government is to reemploy him. No such situation however arises in the present case when the impugned orders suspending the appellant, revoking his leave subsequent to that date and retaining him in service after the date of superannuation in view of r. 3.26( d) had been made prior to the date on which he was to attain the age of 55 years.

p. 780

It has also been contended that r. 3.26(d) infringes the fundamental rights of the appellant as a citizen of India under Art. 19 and 23 of the Constitution. We do not agree. Rule 3.26(d) simply provides that the service which the appellant took up voluntarily and on conditions as be laid down by the relevant rules would continue in certain circumstances even though the Government servant has attained the age of superannuation. Further, ~'1Y restriction the rule imposes on any alleged fundamental right under els. (f) and (g) of Art. 19 is a reasonable restriction in the interests of the general public. The services to be rendered by the Government servant subsequent to such an age, in view of r. 3.26( d), is in no sense a service which can be equated with the expression 'begar' or 'forced labour' in Art. 23. The appellant is not forced to do any work. He remains under suspension and does no work. Even if it be assumed that the retention in service of the Government servant, in view of the provisions of r. 3.26(d), can come within the expression 'forced labour' this rule would be valid in view of Art. 23(2) which provides that nothing in that Article shall prevent the State from imposing compulsory service for public purposes. We are of opinion that such retention would be for a public purpose, as it is in the larger interests of the efficiency of the services that a Government servant should remain within the control of the Government so long as the departmental enquiry against him on a charge of misconduct is not concluded and final orders are not passed.

p. 780

It was also contended that some of the charges framed against the appellant, if true, would constitute criminal offences and that therefore criminal prosecution should have been launched against him in place of the departmental proceedings. There is nothing in the rules or the general law which would support this contention. It is for the Government to decide what action should be taken against the Government servant for certain misconduct. Such a discretion in the Government does not mean that the provision for the departmental enquiry on such charges of misconduct is in violation of the provisions of Art. 14. The service rules apply equally to all the members of the service i.e., to all persons similarly placed and are not therefore discriminatory. The Government has the discretion in every case, considering the nature of the alleged misconduct and other circumstances, whether a criminal prosecution should be launched or not. The Government is also free to conduct departmental proceedings after the close of the criminal proceedings, if instituted._ There is therefore nothing illegal in the Government instituting the departmental proceedings against the appellant.

pp. 780–781

Before dealing with the allegation about the impugned orders being made mala fide, we may deal with certain general points raised by the appellant.

p. 781

A grievance has been made that Sardar Pratap Singh KaiFOn, the Chief Minister, was not made a party to the proceedings on the writ petition. The appellant did not implead him in the first instance. It was after the decision of this Court in R. P. Kapur v. Sardar Pratap Singh Kairon (1) that the appellant applied for the impleading of the Chief Minister as the respondent in the petition. That application was rejected by the High Court as no relief had been claimed against him. The order cannot be said to be wrong when the only ground mentioned for impleading the Chief Minister as a party was to make it incumbent on him to file an affidavit, which he was not legally obliged to, if he was not a party.

p. 781

A number of affidavits sworn by Mrs. Sodhi, Pahwa, Yog Raj, Om Prakash, Surendra Singh Kairon and Kirpa Singh were filed on behalf of the respondent in the Court below. It is now contended that these affidavits should not have been taken into consideration when no reference to them has been made in the written statement filed on behalf of the respondent. No such objection seems to have been raised in the Court below. The allegations in the petition and the affidavit of the appellant with respect to matters concerning these persons were not accepted by the (') [1961] 2 S.C.R. 143.

p. 781

respondent. It was therefore not improper or irregular or illegal for the State to have secured these affidavits and to have filed them in Court. In fact, it should have secured affidavit from the Chief Minister, Mrs. Kairon, the Inspector-General of Prisons and the Vigilance Inspector about the allegations concerning them. There is therefore no force in this contention.

p. 782

It has been contended that the allegations of facts made by the appellant in the petition being not specifically controverted in the written statement and being not denied by the persons most competent to deny them, should be taken to be established. The contention really refers to the allegations made against the Chief Minister and his wife and about certain matters in the tape record.ed conversation the appellant had with the LG. of Prison and the Vigilance Inspector. The appellant has filed a rendering of the conversation alleged to have taken place between him and these persons. These persons have not denied, by their own affidavits, that they did not have the alleged conversations with the appellant, even though the officers of the St_ate, on the application of the State, were allowed to listen to the recorded tape conversation and to prepare their own tape records of the renderings of the tape recordings filed by the appellant in Court in order to enable the State to verify the appellant's allegation that the tape-recorded talks were between the appellant and the persons alleged. Absence of such affidavits can at best lead the Court to accept what was alleged to be stated by these persons in the conversations, but cannot be sufficient to establish what the person talking states to be the statements of other persons. The tape recorded conversation between the appellant and the other person talking with him can only be corroborative evidence of the statement of appellant that the other persons had made such and such statements, but cannot be direct or primary evidence that the third person had stated what the other speaker had told the appellant.

p. 782

The High Court did not rely on the renderings of the tape recorded conversation in view of the fact that such tape recording can be tampered with. Tape recordings can be legal evidence by way of corroborating the statements of a person who deposes that the other speaker and he carried on that conversation or even of the statement of a person who may depose that he over-heard the conversation between the two persons and what they actually stated had been tape recorded. Weight to be given to such evidence will depend on the other factors which may be established in a particular case. It cannot be held, and it has not been so held by the Court below, that the record of the conversation on a tape record is not admissible in evidence for any purpose and therefore we need not say anything more about it.

pp. 782–783

The appellant did not give full details of his allegations with respect to the reawns for the Chief Minister's being displeased with him. He made certain statements in indefinite terms in the petition. He did not make them more specific. His explanation for this is that he did oo as there had been no specific denial of the general allegations by the persons concernea. This is no good explanation for his not making definite assertions of fact which could be helpful to the Court in determining whether those facts would have constituted good reasons for the Chief Minister's displeasure and for his acting malafide in getting the various orders issued by the Governor. It was really for the appellant, in the first instance, to make definite allegations in his p~tition. If he makes indefinite allegations, there is nothing for the other party or the persons concerned to deny. They can take advantage of the vagueness of the appellant's own allegations. Their reticence in that regard cannot give an advantage to the appellant when he himself is in default in not making definite allegations.

p. 783

We now deal with the allegation that the Chief Minister bore ill-will against the appellant for certain reasons and that the impugned orders were made malafide.

p. 783

The Chief Minister's son, Surendra Singh Kairon, contracted a disease for which he had to be operated in April 1960. The Chief Minister asked the appellant to perform the operation secretly, outside Jullunder. The appellant did so. Surendra, however, before he was completely cured, left Jullunder for a few days. This annoyed his mother who conveyed to the appellant that the Chief Minister was ~dignant at the. appellant's inability to ensure that the boy <li? not ~eave !Us place. Thi~ .incident, it is alleged, culffiJnated rn acrimony and hosnlity on the part of the Chief Minister towards the appellant. There is no allegation that the boy suffered on account of his leaving the appellant's house prior to his being cured completely. There is nothing in the record of the alleged conversation between the appellant and the wife of the Chief Minister, tape recorded talks nos. 6 and 2 in April and May respectively, to show that the Chief Minister had asked the appellant to perform the operation. Any statement attributed to the Chief Minister, by his wife, even if the talk was with her, is not evidence of what the Chief Minister had stated, as Sardarni Pratap Singh Kairon has not been examined. Surendra has denied, in his affidavit, the appellant's performing any operation on him at the relevant time. In these circumstances, it is not possible to hold that the Chief Minister did ask such a favour from the appellant and that even if the appellant's allegation is correct, he felt so annoyed with the appellant at Surendra's leaving Jullunder for a few days, be it from the house of the appellant or from the Circuit House, as to break all such friendship with the appellant as has been alleged by him and swing over to the other extreme and harbour such grudge against him as to abuse his position as the Chief Minister, get unjustified enquiries launched against him and get the impugned orders passed.

pp. 783–784

Another allegation is that the Chief Minister himself and his family members, made numerous recommendations asking for undue favours pertaining to the sphere of the appellant's duties and that when they went beyond the limits of endurance, the appellant expressed his inability to comply with some of the extremely unreasonable demands. In support of this contention, the appellant filed documents of the B-series, nineteen in number. None of these documents, by itself, would show that the appellant was asked to act in a manner which may be said to be not in keeping with the proper discharge of his official duties. The contents, by themselves, show that the writers, who included the Chief Minister, his sons Surendra and Girendra and his brother Jaswant Singh, recommended to the appellant certain persons for treatment, for admission in the hospital or for grant of medical certificates. It is not to be presumed that untrue certificates were required to be issued. The appellant does not state in what manner he acted improperly and why he did so. The mere fact that he was a friend of the Chief Minister would not justify it. He held a responsible position and is expected to have done his duty. In case he did not do his duty and thus suffered from a weakness of character, his conduct can be said to be due to his desire to remain in good grace with the Chief Minister and thus gain some advantage in the service, be it promotion, posting at a good station or protection from any adverse action in case he acted improperly in the discharge of his official duties. There is nothing in the petition to indicate how and when the Chief Minister and the appellant became friends. The relationship between the Chief Minister and an efficient public servant may be a close one, but would not amount to friendship and therefore the explanation that the appellant showed undue favours for some time to persons recommended by the Chief Minister and his relations merelv on account of friendship does not appear good and, even if the appellant's allegation be correct, his showing undue favours would not antagonize the Chief Minister. The appellant has not shown which recommendations he did not comply with and when such occasions arose. Therefore this allegation does not establish the Chief Minister's bearing a grudge against tlie appellant.

pp. 784–785

The other reason for the Chief Minister's grievance i5 said to be the appellant's ceasing to comply with the unreasonable requests of the family members of the Chief Minister for medicines and other expensive articles. He does not say which requests and when he did not comply with. So long as he complied with those requests, they would put him in good grace with the Chief Minister and his relations. It is however denied that he did supply such things. It appears from certain postal receipts filed by the appellant that certain parcels were sent to Mrs. Pratap Singh Karion in July and October 1957, March and September 1958 and March 1959. The receipts do not show that these parcels contained medicines. Tape recorded talks nos. 1, 3, and 4 do refer to requests for and supplies of medicines by the appellant. It is also alleged that among the expensive articles supplied wer!'. two Singer sewing machines. Cash memos for the purchase of two Singer sewing machines by Sardar Bahadur Bagh Singh, father-inlaw of the appellant in July 1959 and October 1959, have been filed. In July 1959, a wooden box was sent to Mrs. Kairon through Pahwa who was then the Traffic Manager of the Punjab Roadways at Amritsar. Om Prakash brought that box from the appellant's place to Pahwa. Both these persons, Om Prakash and Pahwa, have filed affidavits. They describe the box to be of such a size that it could not possibly contain the Singer sewing machine. Om Prakash however had stated in the receipt, Annexure C. 9, that he had received a box bearing label 'Singer Sewing Machine' from Dr. Partap Singh. Tape recorded talk no. 3 in August 1959 records Mrs. Kairon' s conversation about receiving a machine and not liking it on account of its colour and the appellant's telling her that they would deduct the money in certain cont:lngencies. The State has not filed any affidavit by her in denial of these statements. The conversation shows that the appellant supplied a Singer sewing machine to Mrs. Kairon and that some deduction could be made in the price in certain contingency. There is no reason to disbelieve the appellant's statement that he had supplied a Singer sewing machine and medicines to her. These supplies by the appellant would however ingratiate him with the Chief"Minister. There is nothing on the record to indicate which requests for what medicines and articles and when were refused by the appellant and thus gave cause for grievance to the Chief Minister.

pp. 785–786

Another reason for the Chief Minister's harbouring a grievance against the appellant is said to have arisen in April 1960 on account of the appellant's asking the Chief Minister's friend, Kirpa Singh, whom he had kept as a guest for about 7 months, to leave the appellant's house. Kirpa Singh was the Manager of National Motors at Jullunder. It is alleged in the petition that this firm was either directly or indirectly owned by Surcndra Singh Kairon or a close relation of his. This allegation is very vague. Both Kirpa Singh and Surendra Singh have denied Surendra Singh's having any concern with the National Motors at . Jullunder. Kirpa Singh did stay at the appellant's house in the alleged period. His letter Exhibit D-1, however does not indicate that he felt annoyed at leaving the appellant's house where he had stayed from September 1959 to the end of March 1960. In fact, Kirpa Singh, by his letter, expressed his thanks to the appellant. There could therefore be no reason for the Chief Minister to feel annoyed and bear grudge against the appellant on account of Kirpa Singh not staying as a guest of the appellant from April 1960, even though Kirpa Singh was a friend of the Chief Minister and was kept as guest by the appellant at the instance of Surendra Singh, as appears from the tape recorded talk no. 15.

pp. 786–787

The other two reasons for the Chief Minister's being aggrieved with the appellant relate to what happened subsequent to April 1960. It is alleged that in September 1960, the Chief Minister sent a message through the Home Secretary, Punjab, to the effect that he had been over liberal towards the Akali prisoners in the District Jail. It is stated in the written statement filed by the respondent that the District Magistrate, Jullunder, made such a complaint to the Home Secretary, who happened to be at Jullunder and that the Home Secretary conveyed it to the appelbnt at a meeting at which the Inspector-General of Prisons and the Collector were also present. The matter was closed as a result of what was talked about at the meeting. Reference has been made in this connection to the tape recorded conversation the appellant had with the Inspector General of Prisons in November 1960. It appears from this conversation that exaggerated information had reached the Chief Minister and made him send the message and that he was satisfied when the I.G. of Prisons explained the matter to him. A Chief Minister's sending a message to an officer about certain complaint. received against him cannot be taken to indicate his ill-will against that officer. He is bound to do so as a part of his duty.

p. 787

The next reason is said to be that the Chief Minister had used the appellant extensively in the Karna! Murder Case, off the record, when it was the subject matter of an appeal. The Sessions Judge acquitted the accused in that case in November 1959 and the High Court dismissed the Government appeal in May 1960. The appellant did his best to help the prosecution with instructions in connection with the medico-legal matters in the case and stated to the Chief Minister that the outcome of the case would ~ favourable. This is borne out from tape recorded talk no. 7 recorded in April 1960. It is alleged that the dismissal of the appeal by the High Court and the ultimate dismissal of the Government petition for special leave to the Supreme Ccurt in October 1960 displeased the Chief Minister who expressed his displeasure to the appellant. It can be imagined that the Chief Minister in these circumstances would sarcastically speak to the appellant about the strong assurances he had given about the outcome of the case, but it is difficult to hold that that would make the Chief Minister hostile to the appellant despite the hardwork he had done, at his request, in helping the prosecution with the medico-legal aspect of the case. It is significant to note that the appellant does not allege that the Chief Minister expressed his displeasure to him in May 1960, shortly after the High Court _dismissed the State Appeal.

pp. 787–788

Another cause for the displeasure of the Chief Minister is said to be the appellant's inability to comply with the illegitimate contents of the instructions conveyed to him by the Chief Minister in December 1956 in connection with Dr. Dhillon's accompanying the Chiet Minister for a number of days as medical attendant. The nature of those instructions has not been disclosed. What part the appellant played in the alleged subsequent developments with the Accountant General, Punjab, and which were unpalatable to the Chief Minister, has not been indicated. The incident took place in December 1957 and surely, even if true, does not appear to have affected the aUeged friendly relations between the Chief Minister and the appellant up to April 1960.

p. 788

We have considered all the reasons set out by the appellant in his petition for the Chief Minister's bearing grudge against him from May 1960 onward and are of opinion that they, singly or cumulatively, fail to establish that the Chief Minister had any grievance against the appellant.

p. 788

The earliest definite incident which, according to the appellant, annoyed tlie Chief Minister, took place in the beginning of April 1960, as Kirpa Singh was m:i.de to leave his house at the end of March 1%0. We have held that in view of Kirpa Singh' s letter of thanks to the appellant, there could have been no cause for the Chief Minister to feel displeased with the appellant. This inference finds support from the fact that the Chief Minister did not do anything against the appellant soon after it, but on the other hand, entrusted the appellant to perform an important operation secretly on his son Surendra in the end of April 1960, which could be only if he entertained good relations with the appellant till then.

pp. 788–789

We have also held that the alleged inability of the appellant to keep Surendra Singh at his place subsequent to the appellant's performing the operation on him could not have displeased the Chief Minister as no ill-effect followed. This view, again, finds support from the fact that the Chief Minister did nothing against the appellant till the end of October when an enquiry was instituted against the appellant. The alleged incident about Surendra's leaving Jullunder for a few days before he fully recovered did not therefore lead to any animosity between the Chief Minister and the appellant.

p. 789

The High Court, Punjab, dismissed the State appeal in the Kamal Murder case in May 1960. The appellant is said to have helped the prosecution at the appellate stage. The Chief Minister could have had cause for dissatisfaction but, as we have mentioned earlier, the dismissal of the appeal could not have given rise to such bad feeling in the Chief Minister against the appellant as to lead to the transfer of the appellant in October and to institute the enquiry agaii;st him.

p. 789

The recorded conversation between the appellant and the LG. of Prisons in November 1960 tends to indicate that the appellant's relations with the Chief Minister could not have been bad in November 1960 as he had sought the advice of the LG. of Prisons about his reporting to the Government about the attitude of the District Magistrate at that meeting. If the relations between the Chief Minister and the appellant were as bad as we are asked to believe, such an idea in connection with the attitude of the District Magistrate, even if it was improper, could not have occurred to the appellant at that time when the LG. of Prisons himself had told him : 'In my opinion that matter was hushed up'.

p. 789

The appellant has, however, also urged certain matters as indicating the malice borne by the Chief Minister towards him and thus indirectly giving support to his allegation that the Chief Minister had personal grievances against him.

p. 790

The appellant's transfer from Jullunder to Amritsar was ordered in December 1960. Jullunder, according to the appellant's statement in Court, i~ a coveted station for Civil Surgeons. He liad over-stayed there the normal period of three years. His transfer cannot be attributed to malice of the Chief Minister, when an enquiry had been instituted against him in connection with a complaint regarding the discharge of his duties. Transfer, in such circumstances, was the most natural order to be passed by the Head of a Department. It may be that for the convenience of its officers transfers are usually ordered in March and April and are not ordered shortly before the period of retirement. But any transfer outside that period or sometime before retirement, for administrative reasons, cannot be said to be a transfer ordered ma/a fide.

p. 790

The appellant's l:irother-in-law, who was officiating in the Provincial Civil Service, Executive Branch, was ri:verted to the lower cadre on November 22, 1960, the reversion being between the institution of a departmental enquiry against the appellant and the orders of his transfer. This is said to be evidence of the general ill-will which the Chief Minister bore against the appellant. It is alleged in the written statement that the reversion was on account of the unsatisfactory conduct and work of the appellant's brother. We cannot take this reversion to be mala fide as there is nothing on the record that it has been so held in any proceedings which could have possibly been taken by the appellant's brother-in-law against his reversion. Subsequent cancellation of the reversion orders on his representation, as stated in Court by the appellant, does not, by itself point to reversion being made mala fide.

p. 790

The appellant preferred to take leave preparatory to retirement and, as already stated, such leave was sanctioned to him. He proceeded on 1eave some time in December 1%0. Subsequently, things happened which could have given cause to the Chief Minister for feeling aggrieved with the appellant. The Blitz of January 14, 1961 published an article under the caption 'Punjab's latest scandal: The sewing machine of Kairon family'. According to this article, the Civil Surgeon paid the price for the sewing machine and supplied it to the Chief Minister's wife. It also mentioned that the Roadways Official transported it. It de~cribed the appellant to be the henchman of the Chief Mini~ter and a handyman for his family members. It stated that the Civil Surgeon is said to have despatched several medicine parcels to the Chief Minister's wife by registered post and that he was asked to supply them out of the hospital stock. It referred to the Chief Minister's son having a garage in J ullunder and to the Boarding of the Manager of the Garage with the Civil Surgeon. It also mentioned about the recommendatory letters from the Chief Minister's ~ons, sister-in-law and brother to the Doctor. It referred to Dr. Dhillon's affair. Naturally, the Chief Minister could have taken this article to be inspired by the appellant and, more so when the appellant's wife published a letter in the Blitz dated March 18, 1%1, practically admitting what had been alleged in that article except such matters which went against her husband. She stated that she sent parcels of medicines by registered post and other means to the wife of the Chief Minister and that the Garage Manager stayed with them as required by the Chief Minister's wife.

pp. 790–791

Between January and March, several things happened which indicated to the appellant that the Government was taking action against him. On January 17, 1961, the appellant received a letter dated January 13, 1961, from the Inspector of Vigilance, District Jullunder, enquiring from him about the place where and the date when he could be contacted for ascertaining his view point on points relevant to the enquiry ordered by the Punjab Government. This was in connection with the enquiry instituted on October 29, 1960. It is alJeged for the appellant that the Chief Minister could have seen the copy of the Blitz dated January 14 at Delhi on January 13, 1961 and that he then started vindictive proceedings against the petitioner and used the Government machinery in a malicious manner to satisfy his personal malice and vendetta. The implication is that it was on the Chief Minister's knowing of the article published in the Blitz dated January 14 that he directed the Vigilance Inspector to issue the letter of January 13 to the appellant for ascertaining the place and the date when he could interrogate him in connection with the enquiry. This is a far-fetched idea. The enquiry had been in progress since October 29 and it must have been in due ~ourse that the Vigilance Officer wrote the letter dated January 13 to the appellant.

pp. 791–792

Whatever views the Vigilance Inspector expressed about the various charges framed against the appellant in the taperecorded talk no. 16 on February 13, 1%1, even if they be his real views in the matter, is no index of the fact that the superior officers who had investigated the case had formed a similar opinion and that the action taken by the Government a few months later in formally framing charges with respect to those matters was actuated by malice. The letter, Annexure J, dated June 3, 1961 states · that the evidence brought on record was sufficiently strong to warrant serious action against him. Any views expressed by the Vigilance Inspector who had really no business to express them when he was deputed to get the explanation or the appellant's version about certain allegations against him, is not sufficient, in our opinion, to look at this assertion in the letter with suspicion. In fact, if the Chief Minister had started the enquiry in October on account of malice and had prompted the Vigilance Inspector on January 13 as a result of the publication of an article in the Blitz of January J'), 1961, presuming that he had seen that copy of the Blitz at Delhi on January 13, the Chief Minister could have very well seen to the early submission of the police report making out a case against the appellant and would have taken action against the appellant much earlier than June 3, 1961, when special steps had to be taken to see that necessary legal action against the appellant is complete before his date of retirement on June 16, 1961. Surely, the Cliief Minister wuid have easily managed these matters if he were actuated by malice and had been taking keen personal interest simply with a view to wreak vengeance against the appellant who had the audacity to act against his wishes even though he had submitted to them for an appreciable time.

p. 792

In February 1961, the appellant received a copy of the remarks entered in his annual confidential file for the year April 1, 1959, to March 31, 1960: 'Professionally he is reported to be somewhat about average. Yet, there has been persistent complaints about his avarice and lack of integrity'. The appellant did not appear to have taken any action in connection with the adverse remarks communicated to him till June 29, 1961, except in so far that he asked the Director of Health Services about the period during which a representation against such remarks could be made. In his representation dated June 29, 1%1, which was submitted beyond the usual period for making representation, the appellant said:

pp. 792–793

"I atn constrained to point out that these observations by Shri Kairon, Chief Minister (Govt. in the Health Deptt.) do not reflect an honest opinion in the context of certain facts on record, a few of which are

p. 793

outlined below." and referred to the various matters stated by him in the petition. The written statement shows that these remarks were not made by the Chief Minister but were made by the Secretary in the Health Department. We do not know when these remarks were made. The mere fact that they were communicated in February 1961 does not mean that they were recorded near about that date. Annual remarks, in the nature of things, must be made after some appreciable time from the close of the year as they are based on the receipt of the remarks from the departmental heads, who take their own time in submitting such remarks. Even if they were made near about February 1%1, that would not show that they were made maliciously on account of the Chief Minister's ill-will as, by that time, the various complaints against the appellant which had come to the notice of the enquiring officer, would have also come to the notice of the Government. The complaints, according to the charge-sheet framed against the appellant, mostly relate to the years 1959 and 1%0.

p. 793

The tape-recorded conversations between the appellant and the Chief Minister and his wife were played at a Press Conference on March 29, 1%1, at Chandigarh. This led to some move for an adjournment motion in the Punjab Legislative Assembly on March 30.

p. 793

In April 1961, the appellant's wife sent a pamphlet 'Acts of corruption by Shri Partap Sing Kairon and his 51-2 SC family members' to the Members of Parliament and other leading persons throughout the country. This conduct of the appellant's wife would have again furnished cause for grievance to the Chief Minister.

pp. 793–794

The question, however, is wh~ther these acts of the appellant and his wife giving cause for grievance to the Chief Minister between January and A.pril 1961 can be said to have led the Government to take the steps against the ap-pellant with regard to his suspension, revocation of leave, extension of service and institution of a formal departmental enquiry out of malice or that such steps were taken against him in due course. We are of opinion that the steps cannot be said to be taken mala fide merely because the appellant and his wife acted in a manner which could undoubtedly provide cause for grievance to the Chief Minister. Nothing is on record to indicate why the appellant and his wife felt so prompted as to have an inspired article printed in the Blitz of January 14 and to have the appellant's wife's letter published in the Blitz in March 1%1 and her pamphlets distributed all over the country. Surely, the appellant and his wife cannot be said to have done this with the noble object of bringing the misdeeds of the Chief Minister of Punjab to public notice and thereby to cause a change for the better in the administration of the affairs in the Punjab. The appellant was not a free man. He was still in service, though on leave preparatory to retirement. He was to retire in June 1961 and therefore he had to observe the usual discipline enjoined on a public servant. His wife too was not to act in a manner in which a public servant's wife is not expected to act. It cannot be believed that the appellant did not know what his wife was doing. The conclusion is irresistable that the appellant and his wife rushed to the Press so prematurely, even if they could be said to be actuated with lauda~le. motives of bringing improvement in the administration of the State, to create a shield for the appellant in case the police investigation that was in progress against him culminated in the formulation of formal charges against him and in the instituting of a formal departmental enquiry against him. The design was on the part of the appellant and cannot be said to be on the part of the Chief Minister, who can be responsible for various orders of Government as the Minister-in-charge of the department and as head of the Administration.

pp. 794–795

It has also been contended in connection with the alleged m'ala fides that in view of r. 8.19 of the 1941 rules, the Government should have refused the leave in December 1960 if genuine complaints had been made against the appellant and investigation was proceeding on them. The leave was to be governed by the 1959 rules and r. 8.19 in those rules did not make it incumbent on the Government to refuse leave to the appellant in December 1960. The rule is :

p. 795

"Leave shall not be granted to a Government servant whom a competent authority has decided to dismiss, remove or compulsorily retire from Government ser- . ,,

p. 795

vice. Government had not arrived at any such decision and therefore could not have and was not bound to refuse leave by resorting to r. 8.19. Even the rule as it stood in the 1941 rules could not have justified the Government resorting to it for refusing leave to the appellant. That rule was:

p. 795

"Leave should not be granted to a Government servant who is to be dismissed or removed from service for misconduct or general inefficiency, if such leave will have the effect of postponing the date of dismissal or removal, or to a Government servant whose conduct is at the time forming, or is in the near future, likely

p. 795

to form, the subject matter of departmental enquiry." The rule was not mandatory. It was discretionary with the Government to grant leave or not. The police was investigating into the complaint against the appellant in December 1960 and it would have been too much for the Government to form a definite opinion about the action to he taken against the appellant then.

p. 795

The grant of leave to the appellant in 1960 does not therefore indicate that the Government had not received any complaint against him by the time it granted him leave and that the Government's subsequent action against the appellant was mala fide.

p. 795

Another submission for the appellant to establish his case of mala fides against the respondent is that the Government having sanctioned him leave, need not have taken recourse to suspending him and revoking his leave, but could have taken adequate action against the appellant under r. 2.2(b), Vol. II, 1941 rules, if he was found guilty of grave misconduct as a result of the departmental prnceedings the Government was to institute against him. The mere fact that Government took one type of action open to them and not the other, is no ground to hold the Gov, ernment action mala fide. Further, resort to r. 2.2(b) could have been taken only if the appellant was found guilty of grave misconduct and it would have been always a debatable point whether the charges made out against him established grave misconduct or simple misconduct. Action under that rule can be taken only in limited circumstances.

pp. 795–796

We are therefore of opinion that it is not established that the impugned orders were made by the Governor not with the ostensible object of a proper departmental enquiry against the appellant with respect to the complaints received against him, complaints found to have substance by the police on investigation but were made with the ulterior purpose of causing harassment and loss of reputation to the. appellant as he had been instrumental in making public allegations tending to bring the Chief Minister of the State into disrepute.

p. 796

We therefore dismiss the appeal.

p. 796

BY COURT: In view of the opinion of the majority, the appeal is allowed. There will be no order as to costs here and in the High Court.

p. 796

Appeal allowed.

p. 796