TMI Blog1962 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... d on having been selected joined it on August 21, 1947- The partition of the country took place in the meanwhile on August 15, 1947. In the History of Services of Gazetted Officers, 6th Edition, at page 377, appears the history of the petitioner. This is the note in regard to his joining the new service on August 21, 1947,-- Treated New Entrant and allowed the benefits of War Service for the fixation of pay, seniority. He will forfeit all his previous service in the Civil Department as also the privileges and rights accruing from it including the benefits of War Service, if any, already allowed to him in his previous appointment in P.C.M.S., Class II (Gazetted). The petitioner thus for the first time joined this new service with effect from August 21, 1947, forfeiting all previous service with privileges and rights in the Punjab Civil Medical Service, Class II. After having been posted to other stations, from April 6, 1956, he came to be posted as Civil Surgeon at Jullundur. He avers that the Chief Minister came to bear malice towards him, the details in support of which will be referred to later at the proper place and on October 29, 1960, started an enquiry against him and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in tape-recorded talks between him and the Chief Minister and the Chief Minister's wife were played before a Press Conference and subsequently an attempt was made to raise the matter in the local Legislative Assembly. He then says that in April, 1961, his wife sent a pamphlet with the title Acts of Corruption by Shri Partap Singh Kairon and his family to Members of Parliament and numerous other leading personalities in the country. On May 12, 1961, the petitioner wrote to the Director of Health Services that the Chief Minister was weighted against him and mala fide enquiries were being conducted against him. 3. On June 3, 1961, the Deputy Secretary in the Health Department addressed the letter, copy Annexure, J. to the Director of Health Services in regard to the petitioner. The letter says: I am directed to say that the investigations made by the Vigilance Department into certain complaints have revealed that while working as Civil Surgeon Jullundur, Dr. Partap Singh had extracted illegal gratifications from a number of patients or their relatives by coercing them and had charged fess which were either not admissible to him or were in excess of the scale laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aratory to retirement sanctioned to him (vide Punjab Government notification No. 61-CH-3HBI-61/2385, dated the 18th January, 1961, read with notification (corrigendum) No. 871-3HBI- 1/7301, dated the 22nd February, 1961), and in pursuance of the provisions of Clause (d) of Rule 3.26 of the Punjab Civil Services Rules, Volume I, Part I, is further pleased to order that he shall not be permitted to retire on his reaching the date of compulsory retirement but shall be retained in service until the inquiry into the charges against him is concluded and a final order passed thereon. In paragraph 23 of the petition the petitioner says that the Delhi papers of 15th June, 1961, published a news item about the petitioner, and mentioned a notification of the respondent in the Gazette Extraordinary in which specific mention of cancellation of leave was made, and the petitioner has obtained a true copy of this notification which is Annexure K. The petitioner avers that he has documentary evidence that the notification purporting to have been published on June 10, was in fact made and published on June 14, 1961. The Director of Health Services' letter, copy Annexure L, of July 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to take action against the petitioner under that rule. (iii) That order under Rule 3.26(d) can be passed in the first instance, and not by way of revising an order that had already been passed. The petitioner had already been permitted to retire at the end of leave and his retirement was automatic. This permission could not be revised or taken away under this rule. (iv) That Rule 3.26(d) could not be availed of by the respondent upon the facts of the case (v) That inasmuch as no charge of misconduct had been framed against the petitioner before the order of suspension was made and before the order extending the period of his service under Rule 3.26(d) was passed, the order was illegal. (vi) That inasmuch as the order of suspension was served on the petitioner after the date of his superannuation and therefore of retirement, it was ineffective and void. (vii) That the order of revocation of leave preparatory to retirement was not served on the petitioner at all and therefore had no effect as against the petitioner (viii) That the order revoking leave was not authorised by any rule of law. (ix) That the order allowing an officer leave preparatory to retirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds (vi) and (vii) is that the petitioner gave incorrect particulars to avoid service and the order regarding his suspension was published in the Punjab Government Gazette (Extraordinary) 1961 and efforts to serve the petitioner with the orders were made but the petitioner evaded the receipt thereof So far as ground (x) is concerned the position taken is that the order of suspension was lawfully passed in accordance with the rules on the subject and it was not at all necessary to give any show cause notice to the petitioner before ordering his suspension. Reply to ground (xii) is that the orders against the petitioner were passed bona fide in the exercise of lawful powers vested in the Government and that the contention of the petitioner that the orders were passed on account of personal ill-will of the Chief Minister against the petitioner is wrong and has been denied. In regard to the remaining grounds (v), (viii), (ix), (xi) and (xiii) the return says that the order passed in regard to the petitioner was perfectly in order and legal and it is further stated that any hostility of the Chief Minister in the matter is incorrect and is denied. In addition to the return by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rule 3.26(d) in Volume I of the 1959 Rules. This clause does not exist in Rule 3.26 of 1941 Rules. The position of the petitioner is that no action could be taken in regard to or against him under Clause (d) of Rule 3.26 of the 1959 Rules. Clause (a) of Rule 3.26, Volume I, in either set of rules provides that except as otherwise provided in other clauses of this very rule the date of compulsory retirement of a Government servant, other than a ministerial servant in the 1941 Rules and other than a Class IV Government Servant in the 1959 Rules, is the date on which he attains the age of 55 years. There is a provision that in exceptional circumstances on public grounds he may be retained after the age of compulsory retirement. Rule 5.27, Volume II, of 1941 Rules makes provision that a superannuation pension is granted to a Government servant in superior service entitled or compelled, by rule, is retire at a particular age. See Rule 5.28 infra, and Rule 3.26 of Volume I of these Rules, and Rule 5.28 of this Volume provides that a Government servant in superior service who has attained the age of 55 years may, at his option, retire on a superannuation pension. There has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic service or any post which continues to exist after the commencement of the Constitution. So that any service that has continued after the Constitution has continued under the provisions of the Constitution and in the case of a State in connection with the affairs of that state. The argument is obviously without substance. Then he says that the word 'appointed' in this Article means appointed after the Constitution and not before it. In this respect he refers to Article 312 in which the same word has been used and in the context in that Article he points out that it can only possibly mean person appointed after the Constitution when Parliament provides for the creation of an All India Service. That is so, but the meaning of this word in this Article cannot be any other as the creation of such service comes about after the Constitution. The petitioner further refers to Articles 310 and 311 in which the word used is 'holds' and Section 241(2) of the Government of India Act, 1935, in which the word used is 'serving', and contends that if the intention was to bring in those who were appointed before the Constitution within the scope of Article 309, the word u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1935, while continuing the old Rules under that Act it was specifically provided that the same shall be deemed to be rules made under the appropriate provisions of this Act , and such words are not to be found in Article 313, which is somewhat similar provision. He, therefore, urges that while under Section 276 of the Government of India Act, 1935, the old rules were deemed to have been made under the provisions of that Act and therefore could be altered and amended, and as the old rules are not deemed to have been made under the Constitution because of the omission as referred to in Article 313, so 1941 Rules cannot be amended. In this respect he relies upon D. S. Garewal v. State of Punjab, AIR 1959 SC 512, that the object of the words as referred to in Section 276 of the Government of India Act, 1935, is to enable the competent authority to add to, after, vary and amend the Rules, and says that the omission of those words implies absence of such power. From this he infers that as there is no power to amend the old rules so any rules that may be made under Article 309 must be prospective in the sense that they only apply to persons recruited and appointed after the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o amend and abrogate old rules and to make new rules under Article 309 subject to any legislative enactment by the Legislature. The Governor has mode the new Rules of 1959 and the old Rules of 1941 have been completely abrogated. 15. When the petitioner joined service in addition to the 1941 Rules he came to be governed by the Punjab Civil Medical Service, Class I (Recruitment and Conditions of Service) Rules, 1940. Rule 17 of these rules provides; In all matters not expressly provided in these rules, the members of the service shall be governed by such rules as may have been or may hereafter be framed by Government and by the provisions of the Government of India Act, 1935 . So all this argument on the side of the petitioner is apparently meaningless because under this rule he entered service accepting that rules in his case could be altered and when altered he would be governed by the altered or new rules. This is an express condition of his service and he cannot escape the effect of it. It is further provided in Rule 1.8, Volume I, in both sets of rules that the power of interpreting, changing and relaxing the rules is vested in the Finance Department. So the rules are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned the same have been continued subject to the provisions or that Article and Article 372(1). Once other provision is made in this behalf the old rules, and in this case 1941 Rules, just cease to exist by the operation of Articles 313 and 372(1). It needs no emphasising that the existence of such law is conditional on other provision having been made under Article 313 and abrogation or amendment under Article 372(1). So that once the 1941 Rules have been abrogated and have thus ceased to exist there is no question of the petitioner having gained any vested right in the age of superannuation as he claims. The petitioner has referred to Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128 and Anup Singh v. State AIR 1953 Pepsu 24, but neither of these two cases is helpful to him for in the first case the only question was whether proceedings launched under Section 13(1) of the Press (Emergency Powers) Act, 1931 could or could not continue after the Constitution and in the second the learned Judges found a certain service rule inconsistent with a guarantee given under Article 16 of the Pepsu Covenant. The effect of repeal is given in Section 6 of the General Clauses Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and service rules made under the Constitution are similarly subject to change at any time. So no vested right in the age of superannuation was created in the petitioner by 1941 Rules. It has already been shown that the petitioner took service subject to the express condition that the rules relating to his conditions of service were liable to change and alteration. So the petitioner acquired no vested right of which he could take advantage. In Madho Singh v. Emperor, AIR 1944 Pat 217, the learned Judges have pointed out, with reference to the Defence of India Rules, that such rules do not come within the scope of Section 6 of the General Clauses Act, 1897, and the provisions of that section do not extend to the same. Similar is the position in regard to 1941 Rules in this case. This argument of the petitioner cannot be accepted as well. Rule 1.6, Volume I. of both sets of rules has already been reproduced. One of the contentions of the petitioner is that service rules in regard to the conditions of service of a Government servant are justiciable as held in Lachhman Prasad Ram Prasad v. Superintendent, Government Harness and Saddlery Factory, Kanpur AIR 195S All 345, Malleshappa H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttainment of the age of 55 years is described as the date of compulsory retirement. Two other reasons advanced by the petitioner for the non-application of Rule 3.26(d) to him are (a) that no charge-sheet was given to him with the order of suspension as required by this rule, and (b) that this rule only deals with Government servants required to retire as in Rule 3.26(c)(i), Volume I, and Rule 5.32(b), Volume II, of 1959 Rules, and permitted to retire as in Rule 5.32(a), Volume II, of 1959 Rules. In regard to the first of these two arguments Rule 3.26(d) refers to a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire...... , and it nowhere says that the charge of misconduct has to be communicated to the Government servant with the suspension order. All that it means is that at the time the suspension is made there is to exist 'a charge of misconduct' against the Government servant, and if this condition is fulfilled, the requirements of the rule are satisfied. We called upon the learned Advocate General to satisfy us that before the order of suspension of the petitioner there were charges of misconduct against the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner has not succeeded in showing that in terms Rule 3.26(d), Volume I, of 1959 Rules has not been complied with. 19. The petitioner further urges that the order suspending him from June 3, 1961, and revoking his leave preparatory to retirement from that date cannot have effect so far as he is concerned because by the time he was served with the orders and came to know of the same he had retired. If this is in fact so, the position taken by the petitioner is of course unassailable. It has already been stated that the letter of the Secretary to the Director of Health Services in regard to the orders made against the petitioner on June 3 was forwarded by the Director of Health Services to the petitioner on June 5. The cover of the letter produced by the petitioner shows that it reached Kanpur on June 7. Kanpur was the address left with his office when he proceeded on leave preparatory to retirement. The petitioner was not there. The letter was redirected to Delhi and that probably must be because the petitioner had moved from Kanpur to Delhi. The cover further showed that the letter reached Delhi on June 16. In spite of this the petitioner says that he did not receive it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was due to attain the age of superannuation on June 16, 1961 and so order about his retention in service beyond that date tilt completion of the enquiry was made. In the return on behalf of the respondent also in paragraph 34 it is stated that the petitioner was due to retire on the forenoon of June. 16, 1961. The petitioner thus takes the position that although he retired on and with effect from June 15 the order of his retention in service under Rule 3.26(d) was made operative from beyond June 16, and consequently after he had actually retired. However, in the notification what is stated is that the petitioner was not to be permitted to retire on his reaching the date of compulsory retirement but was going to be retained in service until enquiry into the charges against him was concluded and final order passed thereon. So in the letter of which the copy is Annexure J and in the return on behalf of the respondent though mistaken view has been taken about the date of the retirement of the petitioner and if the matter stood there this was to the advantage of the petitioner hut the notification as it appears in the Gazette is only to the effect that the petitioner was to be ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this rule suspension is a penalty. He says that there is no other rule in the 1959 Rules under which there is power of suspension in contemplation of or pending enquiry. He is not being proceede'd against on a criminal charge against him nor was he under arrest for a debt. In regard to suspension as penalty he says that it could not be inflicted without calling an explanation from him for otherwise the action would be contrary to rules of natural justice. The learned Advocate-General has taken the position that the Government has (i) inherent or implied power to suspend a Government servant on a charge of misconduct, (ii) power under Section 16 of the General Clauses Act, 1897 (Section 14 of the Punjab General Clauses Act, 1S98) to suspend a Government servant appointed by it, and (iii) power to suspend under Rule 4(v) of the Punjab Civil Services (Punishment add Appeal) Rules, 1952, in which case rules do not require that before such order is made explanation of the Government servant be obtained because in regard to penalties (iii), (vi) and (vii) of this rule such is the requirement under Article 311 and in the case of penalties (i), (ii) and (iv) such requirement is pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so urges that the order suspending him is a quasi-judicial order and says that he finds support for this from Ramchandra Mahesbwari v. State of Bhopal AIR 1954 MP 25, and Barnard v. National Dock Labour Board (1953) 2 QB 18, but these two cases do not support him. In the first case the head-note appears to be wrong and the learned Judge has not held that order of suspension is a quasi-judicial order and in the second case what the Court of Appeal held was that disciplinary function, which is quasi-judicial function, could not he delegated and the person to whom delegation of such function was made could not suspend the workman. This case does not say that order of suspension was a quasi-judicial order. Of course quasi-judicial disciplinary function cannot be delegated and the case decides nothing more. It is now settled by their Lordships in (S) AIR 1956 SC 285, that power to appoint and dismiss an officer is the exercise not of a judicial power but of administrative power and following upon this it has been held in Haragovinda Sarma v. S. C. Kagti AIR 1960 Gau 141, and Bhagwant Saran Srivastava v. Collector and Dist. Magistrate, Jaunpur, AIR 1961 All 284, that an order of dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the section in this particular local statute. This case is not helpful to the petitioner, and he has not been able to show that under the law he was to be given an opportunity for explanation or charge-sheet before order of his suspension was made. 23. The petitioner then contends that the letter, copy Annexure J, shows that the order of suspension was made on June 3, 1961, and it did not reach him till June 19, whereas it was published in the Gazette on June 10, 1961. He says in the nature of things The order of suspension made suspending him from June 3 could not possibly be operative from that date as it could not reach him on the very day. He presses that in such circumstances the obvious effect of the order was to operate retrospectively and as held in Hemanta Kumar Bhattacharjee v. S. N. Mukherjee, AIR 1954 Cal 340, AIR 1957 Orissa 51, and, an order of suspension operating retrospectively cannot be a valid order, which is correct, but as has been pointed out in second of these three cases such an order is not absolutely void but is operative from the date the Government servant is actually relieved of his duties and placed under suspension. In the present case it will i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstable within the meaning of that statute, and the learned Judge then observed that by Section 8 of that Act, read in conjunction with the form to be found in the schedule attached to that Act, it was clear that once a police officer had been suspended, it was his duty to hand over to his superior officer the certificate under which he was appointed a member of the police force; so that the effect of the statute was that a police officer who had been suspended, from the mere circumstances of that suspension ceased to be a police officer, because it is ordered by the Act that when he is suspended his certificate, hitherto in operation, shall cease to have effect, and shall be immediately surrendered to his superior officer. Suspension of a police constable under the provisions of that particular Act had the effect that the certificate upon the authority of which the police constable remained a police constable ceased to have operation and had to be surrendered, so that when the police constable had not the certificate, he was no longer a police constable. No such situation arises because of the suspension of the petitioner and on facts the case has no bearing whatsoever on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and published in the Gazette of June 10, 1961. The rule specifically says that a Government servant, under suspension on a charge of misconduct is not to be permitted to retire on reaching the date of compulsory retirement but should be retained in service until enquiry into the charges is completed and a final order is passed thereon. Thus the rule in so many words retains such a Government servant in service and this is exactly the case in regard to the petitioner. In the words of the rule exactly the same statement appears in the orders about the petitioner that appeared in the Extraordinary Gazette of June 10, 1961. It is, therefore, not true that the petitioner has been suspended from service, the correct position being that he is being retained in service in accordance with the rules already referred to. His case is, therefore, that of suspension from office. No doubt on the particular date he was not actually occupying the office because he was on leave preparatory to retirement but then there was his right to that office and the order suspending him clearly refers to him as Civil Surgeon. So in the case of the petitioner the suspension is not from service and these two c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employment, business, profession or vocation and when that happens he is not entitled to suspension allowance. Since because of suspension the Government servant is stopped from attending to his duty, so the Government has tolerated his engagement somewhere else during the period of suspension in certain circumstances but that does not mean that because of this rule his relationship during suspension is completely severed with the Government service and before the date of compulsory retirement he is not amenable to disciplinary action by the Government where it is called for. Rule 4.21(c), Volume II, as it existed before November 25, 1959, provided that an interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases:--(c) Suspension immediately followed by reinstatement, which need not be to the same post, and this Clause (c) to this rule has been substituted by this: Suspension where it is immediately followed by 'reinstatement whether to the same or a different office, or where the officer dies or is permitted to retire or is retired while under suspension. The petitioner contends that the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etirement applied for is refused. Note 10 of this rule says: Compulsory recall from leave preparatory to retirement should be deemed to be a constructive refusal of the balance of leave unenjoyed for the purpose of this rule. This would mean that under this rule the Government servant so recalled would be entitled to such remaining leave under this rule subject to its conditions. Rule 8.41-A provides for a contingency when a Government servant having proceeded on leave preparatory to retirement, before the date of compulsory retirement, is required for employment during such leave and it says that that is to be with his consent. There was no such rule at first in the 1941 Rules but it was added by the correction slip of April 1, 1949. At that time it made distinction between a Government servant required for further service in his parent Department or office. When power was taken to cancel the leave and recall him to duty, and when he was to be re-employed in a post other than in his parent Department or office, then his return was made optional. This rule in the 1959 Rules makes his recall in both cases with his agreement. When he comes back the leave cancelled is treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.42 cannot be applied to him and in his case there cannot be recall without his agreement. But it is clear from note 10 to Rule 8.21 that there can be compulsory recall from leave preparatory to retirement in which case the balance of the unenjoyed leave is treated as leave refused under that rule. The petitioner refers to Ram Adhar Singh v. State of Bihar, AIR 1954 Pat 187, Brajnandar Prasad v. State of Bihar,: AIR 1955 Pat 353, and Atindra Nath Mukherjee v. G. F. Gillof (59 CWN 835:AIR 1955 Cal 543), and points out that notes to rules as decisions of the Government interpreting the rules have no force in law in so far as such interpretations are not war-ranted by the construction of the rules. He, therefore, contends that note 10 to Rule 8.21 should not be taken into consideration. But the position of the notes in 1959 Rules is somewhat different than notes subsequently added to the rules as , instances of decisions taken by the executive authorities under the rules. In paragraph 6 of the Pre-face to the First Edition of 1959 Rules it is Stated that the opportunity has also been taken to include important orders relating to interpretation of rules, in the form of Notes or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is nothing exceptional in the order cancelling the leave preparatory to retirement of the petitioner and recalling him for the purposes of enquiry while suspending him at the same time when he was recalled. The petitioner seems to think, relying on Jai Ram v. Union of India, AIR 1954 SC 584, that the time after his retirement cannot be treated as part of service, but this case does not decide so as what is decided in the case is that where the service of a Government servant has ceased, because of the retirement, he cannot be held to continue in his service, though at the time he is on post retirement leave granted to him under special circumstances. The leave was granted to the Government servant after the date of compulsory retirement because leave preparatory to retirement had been refused and a rule comparable to Rule 8.21, Volume I, of 1959 Rules, was applied to the case. In the case of the petitioner, as already pointed out, he has continued in service under express Rule 3.26(d). There is thus no force in any of these contentions by the petitioner. The learned Advocate-General refers to Rule 3.13(e), Part I, of 1959 Rules, which says that a Government servant holding su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tations have come to an end contrary to the conditions of service accepted by him. No doubt he entered service before the date of the enforcement of the Constitution but he continued after that date and thus accepted the same conditions of service even thereafter. So this is without substance. In regard to Article 14 the contention is that almost all the charges against the petitioner are charges of a criminal nature which can be enquired into and tried by an ordinary criminal Court. The respondent instead of prosecuting the petitioner has arbitrarily chosen to proceed against him depart-mentally. This has operated to his prejudice inasmuch as he has not the liberty to do what he likes after the date of retirement or seek any employment as he was intending to do. Besides he has not the same opportunity of defence in a departmental enquiry as he would have before a criminal Court. He says that this arbitrary decision of the respondent is discriminatory for the respondent has the option in two similar cases to proceed by way of departmental enquiry in one case and criminal prosecution in another case. In this respect the petitioner refers to a number of cases. The first case is AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aman v. The State, AIR 1958 SC 107, that it is the option of the Government to proceed with either the departmental enquiry first or with a criminal prosecution. It is, therefore, clear that because the Government takes one or the other course it does not mean that Article 14 of the Constitution is attracted and there is a case of discrimination based on arbitrary exercise of power. The Government has the power to proceed in both ways and there is nothing arbitrary in its first proceeding with the enquiry and then if sufficient evidence is available for prosecution to prosecute the Government servant. So there is no violation of Article 14. In this connection the petitioner has further said that the respondent has acted mala fide in not proceeding against him first before a Court but it is not quite clear how that inference is available when the Government can proceed against the petitioner both by an enquiry and by prosecution and it first starts with an enquiry. 27. The only other Article that remains for consideration is Article 23. The contention of the petitioner is that his retention in service after the date of compulsory retirement or superannuation is 'begar' or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, however, detailed reference is made to those incidents there is the question of admissibility in evidence of tape-recorded statements. The petitioner has filed original tapes on which the recordings are to be found and also transcriptions of the conversations. Now, it has been held by Bhandari C. J. in Rup Chand v. Mahabir Parshad (1956) 58 PLR 441: ( (S)), that a statement recorded on a tape-recorder is admissible in evidence, but without subscribing to this opinion, it may be stated straightway that this mechanical process of obtaining statements is fraught with possibilities of such tampering as to render a statement or conversation something quite contrary to what might have been stated by the speaker originally or in the first instance. After a statement or a conversation has been recorded, the tape can be replayed and in most tapes recorders by reverse playing the recording cleared or wiped off. This means that words or sentences can be tampered with. After tampering the tampered tape can be replayed on another tape-recorder and the second taps will produce recorded statement or conversation which will appear to be natural in continuity but which has in fact been so tamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough there have been denials in regard to the allegations made by him but those denials are contrary to the accepted principles relating to pleadings because the same are general denials and not specific denials. He has probably in mind Order 8, Rule 5 of the Code of Civil Procedure which provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be, taken to be admitted except as against a person under disability. Now the Secretary in Ministry of Health could only enter a denial in a general manner but in regard to each allegation the denial is specific to this extent that version of each incident referred to by the petitioner is denied. Of course every sentence is not stated as having been denied. But I should consider that in the circumstances if an incident is denied that is good denial. However, there are affidavits of persons referred to in the petition of the petitioner or connected with the incidents referred to in the petition in which specific denials have been made and versions counter to the versions given by the petitioner are stated. This gri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny omissions by the Vigilance Inspector have no bearing so far as the merits of this case are concerned. It is true that the departmental instructions were not strictly complied with. For such failure the inference is not necessarily that the action taken against the petitioner is mala fide. 41. The petitioner further points out that charges framed against him are also framed mala fide because: (i) the same are not borne out from the statement of allegations, (ii) the dates of acts of omission or commission have not been given and the petitioner cannot defend himself, and (iii) in the statement of allegations it is not stated who was the person who made the allegations. In this petition merits of the charges cannot be considered and not one of these grounds is indicative that the framing of the charges is mala fide. 42. The petitioner then says that the notification in the Gazette Extraordinary of June 10, 1961, is mala fide because: (i) order that the petitioner was to have his headquarters at Chandigarh was not conveyed to him, (ii) while others have been or are informed by letter of such orders, in his case information has been conveyed by notification, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations of mala fide had been made in the petition. It is not clear how this is helpful to the petitioner. The second case is reported in the same volume at p. 397, Pannalal Binjraj v. Union of India, (S) AIR 1957 SC 397 but that case related to transfer of Income Tax cases under a special provision and what was held in that case was that in case of abuse of power, the order passed mala fide can be struck down. It has to be established that an order has been passed mala fide before the ratio in this case can apply. The last case is Lahore Electric Supply Co. Ltd. v. Province of Punjab AIR 1943 Lah 41 (FB). But in that case what the learned Judges found was that the order was not made bona fide but for. some collateral object. The learned Advocate-General points out that in all cases of this type it is only when the Court finds that an order has been made for a collateral object that if comes to the conclusion that it has been made mala fide and strikes it down. In the present case there is nothing to show that the orders made against the petitioner have been made for any collateral purpose than the purpose which is staled in the orders themselves. So these cases are not of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies or torts, and it is a matter of very considerable doubt whether this statement of law can be applied in the manner in which the learned Advocate-General wishes to do in this case. The last argument of the learned Advocate-General is that an order of suspension is an administrative order. It has already been so held and the cases supporting this view have also been cited. The learned Advocate-General refers to Franklin v. Minister of Town and Country Planning 1948 AC 87, and these observations of Lord Thankerton at pages 102 and 103: In my opinion, no judicial, or quasi-judicial, duty was imposed on the respondent, and any reference to judicial duty, or bias, is irrelevant in the present case. * * * * * * * * * * * * I am of the opinion that no judicial duty is laid on the respondent in discharge of these statutory duties, and that the only question it whether he has complied with the statutory directions to appoint a person to hold the public inquiry, and to consider that person's report. * * * * * * * * * * * In such a case the only ground of challenge must be either that the respondent did not in fact consider the report and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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