Bhagwati, J. - (1.) This appeal is directed against the judgment of the Delhi High Court dismissing a writ petition filed by the appellant against the respondents challenging the validity of an order dated 9th June, 1971 passed by the President directing that a disciplinary inquiry pending against the appellant shall be continued until its finalisation and the appellant shall continue under suspension under sub-rule (5) (b) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, hereinafter referred to as CCS (CCA) Rules, 1965, until further orders. The facts giving rise to the appeal may be briefly stated as follows.
(2.) The territory of Goa, which was under Portuguese domination, was liberated by the Indian Army on 20th December, 1961. The appellant was at that time in the service of the Government of India in the Post and Telegraph Department and working as Senior Superintendent of Post Offices at Jaipur. Since senior and experienced officers were required for reorganising the administration in the liberated territory of Goa, the appellant was transferred and posted as officer on Special Duty, Post and Telegraph Department, Panjim, Goa. The appellant took charge of his new office on 25th December, 1961 and held that office till 11th August, 1962 when he was transferred as Senior Superintendent, R.M.S., 'A' Division Allahabad. Whilst the appellant was functioning as Senior Superintendent, R.M.S., 'A' Division, Allahabad he was suspended from service by an order dated 11th April, 1963 made by the President in exercise of the power conferred under sub-r. (1) of Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, hereinafter referred to as the CCS (CCA) Rules, 1957 on the ground that a case against the appellant in respect of criminal offence was under investigation. On the completion of the investigation by Special Police Establishment, the Government of India sanctioned the prosecution of the appellant and pursuant to the sanction so granted, the appellant was prosecuted in the court of Special Judge, Greater Bombay along with one Raj Bahadur Mathur on four charges. The first and the fourth charges are not material as the appellant was acquitted of those charges by the learned Special Judge and nothing now turns upon them. The third charge is also not material as it was directed only against Raj Bahadur Mathur and the appellant had nothing to do with it. The principal charge was the second charge which alleged that the appellant had, while functioning as Officer on Special Duty, Post and Telegraph Department, Panjim, Goa, by abuse of his official position or by illegal and corrupt means, obtained pecuniary advantage for himself and/or for others, inasmuch as he had sent or caused to be sent from Panjim to Bombay four consignments specifically described in the charge, in trucks and/or railway wagons hired by Post and Telegraph Department for transportation of foreign parcels from Goa to Daman via Margao, Poona and Bombay, without payment of freight charges, customs duty etc., and thereby committed an offence punishable under Section 5 (2) read with S. 5 (1) (d) of the Prevention of Corruption Act, 1947. Of the four consignments referred in this charge, the first related to eight cases concealed in five postal bags sent on or about 29th June, 1962, the second related to twelve wooden boxes and a steel trunk concealed in eight postal bags sent on or about 26th July, 1962, the third related to nine cases sent on or about 31st July, 1962 concealed in postal bags and the fourth related to some trunks and leather suitcases sent on or about 31st March, 1962. Whilst the criminal case was pending in the Court of Special Judge, Greater Bombay, the Government of India issued a memorandum dated 8th March, 1965 to the appellant intimating that the President proposed to hold an inquiry against the appellant under Rule 1957. The allegations on which the inquiry was proposed to be held were set out in the statement of allegations enclosed with the memorandum and the charges framed on the basis of these allegations were enumerated in the statement of charges accompanying the memorandum. There were four charges set out in the statement of charges. The first, the third and the fourth charges are not material and we need not refer to them in detail. It would be sufficient to state that they were based on wholly different allegations and had nothing to do with the charges on which the appellant was being prosecuted in the criminal case. The second charge, however, stood on a different footing and in order to appreciate one of the contentions that has been raised before us, it would be desirable to set it out in extenso: "Shri H. L. Mehra, while functioning as Officer on Special Duty, P. and T. Department, Panjim, Goa between the 24th December, 1961 and the 31st August, 1962, failed to maintain absolute integrity and devotion to duty as required by Rule 3 of the CCS (Conduct) Rules, 1955 and committed misconduct in the discharge of his duties as a public servant inasmuch as he, by abusing his official position, managed to send 9 cases packed with his luxury goods from his residence at Panjim to Margao Post Office on or about 31-7-1962 in the truck of Vasant Shiva Amoncar, hired by the P. and T. Department, Panjim, Goa for carrying mails from Murgoa to Panjim Post Office, without paying any truck hire charges and also unauthorisedly utilised the services of the postal carpenters on working days during office hours for packing the aforesaid cases and thereby secured to himself wrongful gain and pecuniary advantage." The disciplinary inquiry into these charges proceeded rather desultorily and not much progress was made. The reason obviously was that the criminal case was pending. At the trial of the criminal case, a large mass of evidence was led on behalf of the prosecution and the appellant also led evidence in support of the defence. On the evidence, the learned Special Judge came to the conclusion that the first and the fourth charges were not established against the appellant and acquitted him of those charges. The learned Special Judge also acquitted Raj Bahadur Mathur of the first and the third charges framed against him. However, so far as the second charge against the appellant was concerned, the learned Special Judge found that the appellant was guilty of that charge in so far as it related to the first, the second and the fourth consignments referred to in that charge though not in respect of the third consignment of nine cases sent on or about 31st July, 1962. The learned Special Judge accordingly convicted the appellant only in respect of the second charge and that too in so far as it related to the first, second and the fourth consignments and acquitted him of all the other charges including the second charge in so far as it was based on the third consignment of nine cases sent on or about 31st July, 1962. The appellant preferred an appeal against the order passed by the learned Special Judge in so far as it related to his conviction and the appeal was heard by a Division Bench of the High Court of Bombay. The Division Bench by a Judgment dated 17th April, 1967 confirmed the conviction of the appellant and also maintained the sentence passed against him by the learned Special Judge. The appellant immediately applied for a certificate for leave to appeal to this Court and the certificate was granted by the High Court of Bombay on 18th April, 1967. Since an appeal against the conviction was preferred to this Court, the President could have waited for the disposal of the appeal before taking any action against the appellant on the basis of the conviction. But, instead, the President passed an order dated 26th October, 1967. Dismissing the appellant from service with immediate effect under Rule 19(1) of CCS (CCA) Rules, 1965 on the ground that the conduct of the appellant, which had led to the conviction, was such as to render his further retention in the public service undesirable. The appeal against the conviction was, thereafter, heard by this Court and by a judgment dated 19th March, 1971 this Court allowed the appeal and set aside the conviction of the appellant. It is not necessary for the purpose of the present appeal to make a detailed reference to this judgment but it would be enough to state that the main ground on which this Court exonerated the appellant was that no customs duty was leviable on despatch of goods from Goa to other parts of India and the appellant could not, therefore, be said to be guilty of having obtained pecuniary advantage in the shape of evasion of payment of customs duty by abusing his official position and/or by illegal or corrupt means. The conviction of the appellant having been set aside, the order of dismissal based on the conviction obviously could not be sustained and the President, therefore, decided that the order of dismissal should be set aside and passed an order to the following effect on 9th June, 1971. WHEREAS Shri H. L. Mehra, the then Senior Supdt. of RMS was dismissed from service with effect from 26th October, 1967 on the ground of conduct which led to his conviction on a criminal charge vide order No. 7/6/63-Disc. Dated the 26th October, 1967. AND WHEREAS the said conviction has been set aside by the Supreme Court and the said Shri H. L. Mehra has been acquitted of the said charge; AND WHEREAS in consequence of such acquittal the President has decided that the said order of dismissal should be set aside. AND WHEREAS Shri H. L. Mehra, the then Senior Supdt. of RMS was under suspension vide order No. 10/9/63-Vig. Dated the 11th April, 1963, at the time of dismissal, and an enquiry under the provisions of CCS (CCA) Rules, 1957 as ordered vide memo No. 7/6/63-Disc. dated the 8th March, 1965 was pending against him: AND WHEREAS the president has decided that the said enquiry pending against Shri H. L. Mehra, may be continued and under sub-rule (5) (b) of Rule 10 of CCS (CCA) Rules, 1965, Shri H. L. Mehra should continue under suspension until the termination of such proceedings: NOW, therefore, the President hereby - (i) sets aside the said order of dismissal; (ii) directs that the enquiry pending against Shri H. L. Mehra, shall be continued until its finalisation; (iii) directs that the said Shri H. L. Mehra, shall under sub-rule (5) (b) of Rule 10 of CCS (CCA) Rules, 1965 continue to remain under suspension until further orders." The appellant being aggrieved by this order in so far as it directed continuance of the inquiry instituted against him by the Memorandum dated 8th March, 1965 and also continued his suspension under sub-r. (5) (b) of R. 10 of the CCS (CCA) Rules, 1965, filed a writ petition in the Delhi High Court challenging the validity of this order on various grounds set out in the writ petition. Whilst the writ petition was pending, the President issued another Memorandum dated 9th December, 1971 dropping charges Nos. I, III, and IV set out in the Memorandum dated 8th March, 1965 and directing that the inquiry be continued only in respect of Charge II and stating that an inquiry should also be held in respect of three further charges set out in the statement of charges enclosed with the Memorandum. The inquiry which was thus continued against the appellant was an inquiry into Charge II set out in the Memorandum dated 8th March, 1965 and the three further charges set out in the Memorandum dated 9th December, 1971. No progress was, however, made in the inquiry in view of the writ petition filed by the appellant. The writ petition was heard by a Division Bench of the Delhi High Court and by a judgment dated 25th February, 1972 the Division Bench rejected the various grounds urged on behalf of the appellant against the validity of the order dated 9th June, 1971 and dismissed the writ petition. Hence the present appeal by the appellant with certificate obtained form the Delhi High Court.
(3.) The order dated 9th June, 1971, impugned in this appeal, consisted of three parts. One part set aside the order of dismissal passed against the appellant on 26th October, 1967, the other part directed continuance of the inquiry instituted against the appellant by the Memorandum dated 8th March, 1965, while the third part continued the suspension of the appellant under sub-rule (5) (b) of Rule 10 of the CCS (CCA) Rules, 1965. So far as the second part of the impugned order is concerned, it was no doubt challenged as outside the authority of the President in the writ petition as also in the arguments before the Delhi High Court, but at the hearing of the appeal before us, it was frankly conceded by the learned counsel for the appellant that it was not possible for him to assail its validity. That part of the impugned order must, therefore, be held to be valid. The only question debated before us was - and this raised a rather serious controversy - whether the third part of the impugned order was valid:was it competent to the President, in the circumstances of the case, to continue the suspension of the appellant under sub-rule (5)(b) of Rule 10 of the CCS (CCA) Rules, 1965 Even if it was not, could this part of the impugned order be sustained under any other provision of R. 10 of the CCS (CCA) Rules, 1965;