PETITIONER: FIRM A. T. B. MEHTABMAJID AND CO. Vs. RESPONDENT: STATE OF MADRAS AND ANOTHER DATE OF JUDGMENT: 22/11/1962 BENCH: <NAME>, RAGHUBAR BENCH: <NAME>, RAGHUBAR DAS, S.K. KAPUR, J.L. SARKAR, A.K. HIDAYATULLAH, M. CITATION: 1963 AIR 928 1963 SCR Supl. (2) 435 CITATOR INFO : RF 1964 SC1006 (9,14) R 1964 SC1729 (4,8,10,13,32) E 1968 SC 599 (14) R 1969 SC 147 (8,18,26) F 1969 SC 504 (6) R 1971 SC 870 (13) RF 1974 SC2344 (1) D 1977 SC 548 (4,6) RF 1977 SC 879 (13,14,19,23) R 1986 SC 63 (36) D 1986 SC 515 (104,106) F 1987 SC1922 (7,10,12) RF 1988 SC 740 (19) R 1988 SC1814 (6) R 1988 SC2038 (4) D 1989 SC1949 (12) R 1989 SC2015 (8) E&D 1990 SC 820 (14,18) ACT: Sales Tax-Tanned hides and skin imported from outside and sold inside the State-Hides and skins tanned and sold inside the State-Sales Tax higher on the latter-If discriminatory- Old rule Substituted by new rule-Old rule does not revive when new rules declared invalid-Constitution of India, Arts.301, 304-Madras General Sales Tax Act (IX Of 193), ss. 3,5, 19.Madras General Sales Tax Rules, r. 16. HEADNOTE: This is a petition under Art. 32 of the Constitution, the petitioners are dealers in hides and skins in the State of Madras. The impugned sales tax assessment relates to turn- over of sales of tanned hides and skins which had been obtained from outside the State of Madras. The main contention of the petitioners is that the tanned hides and skins imported from outside and sold inside the State are, under r. 16 of the Madras General Sales Tax Rules, subject to a higher rates of tax than the tax imposed on hides and skins tanned and sold within the State and this discriminatory taxation offended Art. 304 (a) of the Constitution. The respondents contentions were (a) sales tax doe,; not come within the purview of Art. 304 (a)' as it is not a tax on the import of goods at the point of entry, (b) the impugned 436 rule is not a law made by the State legislature, (c) the impugned rule by itself does not impose the tax but fixes the single point at which the tax is imposed by ss. 3 and 5 of the Act is to be levied. (d) The impugned rule was not made with an eye on the place of origins of the goods. Held, that it is now well settled that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if they are not what can be termed to be compensatory taxes or regulating measures. Sales Tax, of the kind under consideration, cannot be said to be a measure, regulating any trade, or a compensatory tax levied for the use of trading facilities, Sales Tax which has the effect of discriminating between goods of one State and goods of another, may affect the free flow of trade and it will then offend against Art. 301 and will be valid only if it comes within the terms of Art. 304 (a).  <CITATION> ,  1 S. C. R. 809, <CITATION> ,  1 S. C. R. 491, followed. Article 304 (a) allows the legislature of a State to impose taxes on goods imported from other States and does not support the contentions that the imposition must be at the point of entry. Section 19 (5) of the Madras General Sales Tax Act provides that the 'rules made thereunder shall have effect as if enacted in the Act and r. 16 of the Madras General Sales Tax Rules would fall within a law made by <ORG>. What that rule provides is a step necessary fur the imposition of tax in view of ss. 3 and 5 and therefore the impugned rule is a part of the enactment which imposes the tax. The fact that the impugned rule was made in view of ss. 385, in order to prescribe the single point in series of sales does not justify its discriminatory character, Rule 16 (2) discriminates against the imported hides or skins which had been purchased or tanned outside and therefore it contravenes Art. 304 (a) of the Constitution. Once an old rule has been substituted by a new rule, it ceases to exist and it does not get revived when the new rule is held invalid. The tax imposed in the present case has not been imposed by misconstruing the provisions of a valid Act but it has been imposed without jurisdiction by reason of the invalidity of r. 16. 437 Ujjam Bai v. State of U. P.,  1 S.C. R. 778, distinguished. JUDGMENT:

ORIGINAL JURISDICTION : Petition No. 147 of 1959. (Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights).

<NAME> and <NAME>, for the petitioner. <NAME> and <NAME>, for respondents Nos. 1 and 2.

<NAME>, for the intervener.

1962. November, 22. The judgment of the <ORG> was delivered by RAGHUBAR DAYAL, J.-This petition under Art. 32 of the Constitution raises the question of the validity of r. 16 of the Madras General Sales Tax (Turnover & Assessment) Rules, 1939, hereinafter called the rules. The impugned rule was published on September 7, 1955, and was substituted in the place of old r. 16. The new rule was to be effective from April 1, 1955.

The petitioner is a dealer in hides and skins. He sells hides and skins tanned outside the State of Madras, as well as those tanned inside the state. The Deputy Commercial Tax Officer, 1, Moore Market Division, Madras, assessed the petitioner to sales tax for the year 1955-56 on a turnover of Rs. 29,89,624-15-11. Out of this a turnover of Rs. 28,10,625-2-0 represented sales of tanned hides and skins which had been obtained from outside the State of Madras. Sales tax was levied on hides and skins under the provisions of the Madras General Sales Tax Act, 1939 (Act IX of 1939), hereinafter called the Act. Section 3 is the charging section and its relevant portions read: "3. (1) Subject to the provisions of this Act, (a) every dealer shall pay for each year a tax on his total turnover for such year; and

(b) the tax shall be calculated at the rate of three pies for every rupee in such turnover :-

x x x x x"

Section 5 of the Act provides for exemptions and reductions of tax in certain cases. Clause (vi ) thereof provides that the sale of hides and skins, whether tanned or untanned, shall be liable to tax under section 3, sub-section (1), only at such single point in the series of sales by successive dealers as may be prescribed. Section 19 empowers <ORG> to make rules to carry out the purposes of the Act.

The new rule 16, whose validity is challenged for the petitioner, reads :

"16.(1) In the case of untanned hides and/or skins the tax under section 3(1) shall be levied from the dealer who is the last purchaser in the State not exempt from taxation under section 3(3) on the amount for which they are bought by him.

(2) (i) In the case of hides or skins which have been tanned outside the <ORG> the tax under section 3(1) shall be levied from the dealer who in the <ORG> is the first dealer in such hides or skins not exempt from taxation under section 3(3) on the amount for which they are sold by him.

(ii)In the case of tanned hides or skins which have been tanned within the State, the tax under section 3(1) shall be levied from a person who is the first dealer in such hides or skins not exempt from taxation under section 3(3) on the amount for which they are sold by him:

Provided that, if he proves that the tax has already been levied under sub-rule (1) on the untanned hides and skins out of which the tanned hides and skins had been produced, he shall not be so liable.

(3)The burden of proving that a transaction is not liable to taxation under this rule shall be on the dealer." It is contended for the petitioner that the effect of this rule is that tanned hides or skins imported from outside the <ORG> and sold within the <ORG> are subject to a higher rate of tax than the tax imposed on hides or skins tanned and sold within the <ORG>-, inasmuch as sales tax on the importer] hides or skins tanned outside the <ORG> is on their sale price while the tax on hides or skins tanned within the <ORG>, though ostensibly on their sale price is, in view of the proviso to cl. (ii) of sub-r. (2) of r. 16. really on the sale price of these hides or skins when they are purchased in the raw condition and which is substantially less than the sale price of tanned hides or skins. Further, for similar reasons, hides or skins imported from outside the <ORG> after purchase in their raw condition and then tanned inside the <ORG> are also subject to higher taxation than hides or skins purchased in the raw condition in the <ORG> and tanned within the <ORG>, as the tax on the former is on the sale price of the tanned hides or skins and on the latter is on the sale price of the raw hides or skins. Such a discriminatory taxation is said to offend the provisions of Art. 304(a) of the Constitution. Similar are the contentions for the interveners in the case. The contentions for the respondents are Sales tax does not come within the purview of Art. 304(a) as it is not a tax on the import of goods at the point of entry. (2) The impugned rule is not a law made by the <ORG> Legislature. (3) The impugned rule, by itself, does not impose the tax, but fixes the sin-ale point at which the tax imposed by ss. 3 and 5 of the Act is to be levied. (4) The impugned rule was not made with an eye on the place of origin of the goods but as a matter of necessity, in view of the requirements of the statutory provisions to the effect that hides or skins, raw or tanned, came within one category and that the tax on them could be levied at a single point only. The impugned rule, therefore, fixed that single point with respect to the sale of raw hides or skins at the last purchase by the dealer in the <ORG> and with respect to the sale of tanned hides or skins at the first sale of such tanned hides or skin$ by the dealer in the <ORG>. In the former case, the tax was levied on the price the purchaser paid while in the latter case it was on the price at which the seller sold.

Article 301 of the Constitution which provides for trade, commerce and intercourse throughout the territory of India to be subject to the other provisions of Part XIII, has been construed by this Court in <CITATION> (1) and in <ORG> v. The State of Rajasthan and Ors.(2) :

The majority view in the Atiabari Tea Co. Case (1) which has been accepted in the Automobile Transport Case (2) is, as expressed by <NAME>, J., at p. 860 : "Thus considered we think it would be reasonable and proper to hold that restrictions freedom (1) [1961] 1. S.C.R. 809.

(2) [1963] 1 S.C.R. 491, from which is guaranteed by Art. 301 , would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade. Taxes may and do amount to restrictions; but it is only such taxes as directly and immediately restrict trade that would fall within the purview of Art. 301......... We arc therefore satisfied that in determining the limits of the width and amplitude of the freedom guaranteed by Art. 301 a rational and workable test to apply would be : Does the impugned restriction operate directly or immediately on trade or its movement ?...... Our conclusion therefore is that when Art. 301 provides that trade shall be free throughout the territory of India it means that the flow of trade shall run smooth and unhampered by any restriction either at the boundaries of the States or at any other points inside the States themselves. It is the free movement or the transport of goods from one part of the country to the other that is intended to be saved, and if any Act imposes any direct restrictions on the very movement of such goods it attracts the provisions of Art. 301 , and its validity can be sustained only if it satisfies the requirements of Art. 302 or Art. 304 of Part XIII." In the majority judgment in the Automobile Transport Case (1) it was said at p. 1424 :

"The interpretation which was accepted by the majority in the <ORG> Case is correct, but subject to this clarification. Regulatory measures or measures imposing Compensatory taxes for the use of trading facilities do not come within the purview of the restrictions contemplated by Art. 301."

Earlier in the judgment it was observed, at p. 1422: "Such regulatory measures as do not impede (1) [1963] 1 S.C.R. 491.

the freedom of trade, commerce and intercourse and compensatory taxes for the use of trading facilities are not hit by the freedom declared by Art. 301. They are excluded from the purview of the provisions of Part XIII of the Constitution for the simple reason that they do not hamper trade, commerce and intercourse but rather facilitate them." <NAME>, concurred in this view and said at p. 1436 : "(1) Art. 301 declares a right of free movement of trade without any obstructions by way of barriers, inter-<ORG> or, intrastate, or other impediments operating as such barriers. (2) The said freedom is not impeded, but, on the other hand, promoted, by regulations creating conditions for the free movement of trade, such as, police regulations, provision for services, main- tenance of roads, provision for aerodromes, wharfs etc., with or without compensation." It is therefore now well settled that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if they are not what can be termed to be compensatory taxes or regulatory measures. Sales tax, of the kind under consideration here, cannot be said to be a measure regulating any trade or a compensatory tax levied for the use of trading facilities. Sales tax, which has the effect of discriminating between goods of one <ORG> and goods of another, may affect the free flow of trade and it will then offend against Art. 301 and will be valid only if it comes within the terms of Art. 304 (a).  Article 304(a) enables <ORG> a <ORG> to make laws affecting trade, commerce and intercourse. It enables the imposition of taxes on goods from other <ORG>s if similiar goods in the <ORG> are subjected to similiar taxes, so as not to discriminate between the goods manufactured or produced in that <ORG> and the goods which are imported from others <ORG>s. This means that if the affect of the sales-tax on tanned hides or skins imported from outside is that the latter becomes subject to a higher tax by the application of the proviso to sub-rule of r. 16 of the Rules, then the tax is discriminatory and unconstitutional and must be struck down. We do not agree with the contentions for the respondents. The contention that Art. 304 (a) is attracted only when the impost is at the border, i.e., when the goods enter the <ORG> on crossing the border of the <ORG>, is not sound. Art. 304(a) allows <ORG> a <ORG> to impose taxes on goods imported from other <ORG>s and does not support the contention that the imposition must be at the point of entry only.

Section 5 (vi) provides that the sale of hides or skins, whether tanned or untanned, shall be liable to tax under s. 3(1) only at such single point in the series of sales by successive dealers as may be prescribed. 'Prescribed' means 'Prescribed by rules made under the Act.' Rule 16 prescribes such single point. This rule was made by the Governor in the exercise of power confer-red on him under s. 19 of the Act and would therefore have statutory force. In fact, sub- s. (5) of s. 19 provides that the rules shall have effect as if enacted in the Act. We therefore do not agree that r. 16 is not a law which would fall within a law made by <ORG>.

It is true that the impugned rule, by itself, does not impose the tax, but fixes the single point at which the tax imposed by ss. 3 and 5 is to be levied. What the rule provides is a step necessary for the imposition of the tax, in view of ss. 3 and 5 and therefore the impugned rule is a part of the enactment which imposes the tax.

The fact that the impugned rule was made in order to prescribe the single point in the series of sales by successive dealers at which the tax on sale of hides or skins was to be levied, in view of ss. 3 and 5 of the Act, does not justify the making of such a rule which discriminates between the tax imposed on goods imported from outside the State and the goods produced or manufactured in the State.

Now, the only question that remains for consideration is whether this rule discriminates between hides or skins imported from outside the State and those manufactured or produced in the State.

Sub-rule (1) of the rule deals with the sale of raw hides and skins. The tax is levied from the dealer who is the last purchaser in the <ORG>. Its vires is not challenged. Clause (i) of sub-r. (2) provides for the levying of tax on the sale of hides and skins which had been tanned outside the <ORG>. The tax is levied from the dealer who.. in the <ORG>, is the first seller of such hide or skins. The result is that a dealer in hides or skins which have been tanned outside the <ORG> has to pay the tax on the amount for which such hides or skins are sold by him. Clause (ii) of this sub-rule is in identical terms with respect to the sale of tanned hides or skins which have been tanned within the <ORG>. The tax is to be levied from the person who is the first dealer in such hides or skins and is levied on the amount for which they are sold. The descrimination. it is argued, comes in on account of the proviso to this sub-cl.

(ii). The proviso is to the effect that if the dealer of hides or skins which had been tanned within the <ORG> proves that tax had already been levied on those hide or skins in their raw condition, in accordance with sub-r. (1)., he will not be liable to the tax under sub-cl. (ii) of sub-r. (2). The result therefore is that the sale of hides or skins which had been purchased in the <ORG> and then tanned within the <ORG> is not subject to any further tax. Hides and skins tanned within the <ORG> are mostly those which had been purchased in their raw condition in the <ORG> and therefore on which tax had already been levied on the price paid by the purchaser at the time of their sale in the raw condition. If the quantum of tax had been the same, there might have been no case for grievance by the dealer of the tanned hides and skins which had been tanned outside the <ORG>. The grievance arises on account of the amount of tax levied being different on account of the existence of a substantial disparity in the price of the raw hides or skins and of those hides or skins after they had been tanned, though the rate is the same under s. 3 (1) (b) of the Act. If the dealer has purchased the raw hide or skin in the <ORG>, he does not pay on the sale price of the tanned hides or skins, he pays on the purchase price only. If the dealer purchases raw hides or skins from outside the <ORG> and tans them within the <ORG>, he will be liable to pay sales-tax on the sale price of the tanned hides or skins. He too will have to pay more for tax even though the hides and skins are tanned within the <ORG>, merely on account of his having imported the hides and skins from outside-, and having not therefore paid any tax under sub-r. (1). It is true that dealers, though few, selling hides and skins which had been tanned within the <ORG> will also have to pay similar tax if no tax had been paid previously, they having not purchased the raw hides and skins at all as they were from the carcasses of animals owned by them; but this does not affect the discriminatory nature of the tax as already indicated. It is urged for the respondent <ORG> that to consider discrimination between the imported goods and goods produced or manufactured in the <ORG>, circumstances and situations at the taxable point must be similar and that the circumstance of hides or skins tanned within the <ORG> and on which tax had been paid earlier at the time of their purchase in the raw condition is sufficient to consider such hides or skins to be different from the hides or skins which had been tanned outside the <ORG>. We do not consider that the mere circumstance of a tax having been paid on the sale of such hides or skins in their raw condition justifies their forming goods of a different kind from the tanned hides or skins which had been imported from outside. At the time of sale of those hides or skins in the tanned state, there was no difference between them as goods and the hides or skins tanned outside the <ORG> as goods. The similarity contemplated by Art. 304 (a) is in the nature of the quality and kind of the goods and not with respect to whether they were subject of a tax already or not.

We are therefore of opinion that the privisions of r. 16 (2) discriminate against the imported hides or skins which had been purchased or tanned outside the <ORG> and that therefore they contravene the provisions of Art. 304 (a) of the Constitution.

It has been urged for the respondent that if the impugned rule be held to be invalid, old r. 16 gets revived and that the tax assessed on the petitioner will be good. We do not agree. Once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid. Lastly, we may refer to the Preliminary objection raised on behalf of the respondent to the maintainability of this petition, in veiw of the decision of this Court in <CITATION> (3). This petition does not come within that decision. This is not a case in which the tax has been levied by the Deputy Commercial Tax Officer by misconstruing certain provisions of a valid Act, but is a case where the taxing officer had no juris- (1)  1. S.C.R. 778.

diction to assess the tax on account of the invalidity of the rule under which the tax was assessed. We therefore allow this petition with costs holding the impugned rule 16 (2) invalid and order the issue of a writ of mandamus to the State of Madras and <ORG> under the Act to refrain from, enforcing any of the provisions of r. 16 (2) and direct them to refund the tax illegally collected from the petitioner. Petition Allowed.


<NAME>, J.

1. The petitioner is a company incorporated under the Companies Act , 1956. It has a factory at Baroda where it had been manufacturing extruded aluminium collapsible tubes. The petitioner held a license for manufacturing extruded shapes and sections including extruded pipes and tubes. The license was granted to it by the <ORG> authorities under the <ORG>s and Salt Act , 1944 (hereinafter referred to as "the said Act" for the sake of brevity). On 3rd April, 1970 the petitioner surrendered its license to <ORG> authorities for cancellation. The Assistant Collector of <ORG>, Baroda cancelled it and informed the petitioner accordingly on 21st April, 1970.

2. Thereafter the petitioner started purchasing plain tubes and plain containers from the market and engaged itself in printing and lacquering them. Printed and lacquered tubes and containers were sold by it in the market to their consumers. On 25th February, 1971 the petitioner received from the Superintendent of <ORG>, Baroda, the letter dated 24th February, 1971 enquiring whether the petitioner had stopped all operations relating to the manufacture of extruded aluminium pipes and tubes including incidental and ancillary process of printing and lacquering them. On 2nd March, 1971 the petitioner replied to the Superintendent of <ORG> and stated that no <ORG> license was necessary for printing and/or lacquering duty paid extruded shapes and sections or tubes and pipes purchased by it from the market. It contended that no <ORG> duty was leviable on such printing and lacquering. The petitioner however stated that if the Superintendent of <ORG> did not accept the aforesaid view of the petitioner, he should hear the petitioner before taking any decision in the matter. On 22nd May, 1971, the petitioner received from the Superintendent of <ORG> notice dated 20th May, 1971 (hereinafter referred to 'the impugned notice') asking the petitioner to obtain the <ORG> L-4 license with immediate effect because according to him printing and/or lacquering was incidental to the process of manufacturing extruded shapes and sections or extruded tubes and pipes of aluminium. The petitioner appealed against the impugned notice to the Assistant Collector of <ORG>, Baroda on 15th June, 1971. The appeal was heard on 16th June, 1971 (hereinafter referred to as the 'impugned order'), the Assistant Collector dismissed the appeal.

3. It is against the impugned notice and the impugned order that this petition has been filed.

4. Mr. <NAME> who appears for the petitioner has raised before us only one contention. Though some other contentions have been raised in the petition by the petitioner they have not been convassed before us. The contention which Mr. <NAME> has raised is this.

5. Whether printing and lacquering of extruded shapes and sections or tubes and pipes of aluminium is liable to payment of duty under the said Act ?

6. In the impugned notice it has been stated that extruded tubes by themselves are not marketable unless they are printed in a distinguishable form. It is only printed extruded tubes which are according to <ORG> known to the market and consumed by the consumers. It has also been stated that the printing and lacquering of extruded tubes and pipes is a process which is incidental to the process of manufacture of the extruded tubes of aluminium. In the petition it has been denied that the plain unprinted and unlacquered tubes are not marketable. At Ex. G to the petition, the petitioner has annexed details showing the sale of plan (unprinted and unlacquered) tubes. At Ex. E to the petition there are some more details in that behalf. At Ex. F there are still more details showing the sale by the petitioner of plain collapsible tubes of aluminium to different persons. That plain collapsible tubes of aluminium are a marketable commodity and that they are purchased by consumers in the market have not been disputed before us. We, therefore, proceed to decide this petition on the footing that both plain collapsible tubes of aluminium as well as printed and lacquered tubes of aluminium are marketable commodities and that the consumers buy them.

7. In order to examine the contention raised by Mr. <NAME> it is necessary to turn to Section 3 of the said Act which is a charging section. It provides for levy and collection of duties of excise on all excisable goods other than salt and on salt manufactured in, or imported by land into any part of India at the rates set forth in the First Schedule to the said Act. The expression "excisable goods" has been defined by Clause (d) of Section 2 in the following terms :

" 'Excisable goods' means goods specified in the First Schedule as being subject to a duty of excise and includes salt."

If a person produces "excisable goods" within the aforesaid meaning of that expression he has got to obtain a licence under Section 6 of the said Act. Section 3 , Sub-section (1) read with the definition of "excisable goods" given in Clause (d) of Section 2 , takes us to the First Schedule. Item 27 in the First Schedule specifies aluminium. Sub-item (e) specifies the following commodity :

"Extruded shapes and sections including extruded pipes and tubes."

The contention raised on behalf of the respondents is that printing and lacquering of duty paid plain extruded collapsible pipes and tubes of aluminium are covered by sub-item (e) of Item 27. The respondents have placed no reliance upon any other sub-item of Item 27. On the other hand Mr. <NAME> has contended that sub-item (e) of Item 27 has no application to the printing and lacquering of duty paid extruded pipes and tubes of aluminium.

8. Let us now see the connotation of sub-item (e) of Item 27. It is . not in dispute before us that the petitioners have been printing and lacquering only plain extruded tubes. We, therefore, examine sub-item (e) of Item 27 in that context. Sub-item (e) of Item 27 in the First Schedule read with Section 3(1) subjects to payment of excise duty manufacture of extruded tubes of aluminium. It is not in dispute that the petitioner has been purchasing plain extruded tubes of aluminium from the market and has been printing and lacquering them for its customers. The plain extruded tubes which the petitioners have been purchasing are all duty paid. When we read sub-item (e) of Item 27 in the light of Section 3 , Sub-section .(1), there are two facts which clearly emerge thereform. The first fact is that there must be a manufacture of tubes of aluminium and the second is that they must have been manufactured by applying the process of extrusion. Plain extruded tubes which the petitioners have been purchasing from the market were already manufactured by other manufacturers. The process of extrusion was applied to their manufacture by other manufacturers before they were turned out as finished goods and placed in the market for sale. The question which therefore arises is this :

9. By printing and lacquering the plain extruded tubes of aluminium do the petitioners firstly apply any further process of extrusion to them and do they thereby manufacture tubes ?

10. Mr. <NAME> appearing for the respondents has not been able to tell us that the printing and lacquering of plain extruded tubes of aluminium require any application of the process of extrusion. Mr. <NAME> has on the other hand categorically stated to us that mere printing and lacquering of plain extruded tubes do not require application of any process of extrusion. So far as the tubes are concerned extrusion means process of forming the tube from a metal slug or dump; That is how the connotation of 'extrusion' has been explained in Indian Standard (revised edition, October, 1966) published by <ORG>. If extrusion means the process of forming a tube from a metal slug or dump, it was already applied when the manufacturer of a plain extruded aluminium tube manufactured it. Printing and lacquering do not involve the process of forming a tube from a metal slug or dump which extrusion means. It is therefore clear that since printing and lacquering of plain extruded tubes do not require application of any further process of extrusion, it cannot be covered by sub-item (e) of Item 27. Secondly by printing and lacquering plain extruded tubes, can the petitioners be said to manufacture aluminium tubes ? This is the second aspect which emerges from the analysis of sub-item (e) of Item 27. "Manufacture" has been defined by Clause (f) of Section 2 in the following terms :

"Manufacture" includes any process incidental or ancillary to the completion of a manufactured product...."

The tubes which the petitioners have been printing and lacquering were already manufactured by other manufacturers. Is the process of printing and lacquering them incidental or ancillary to the completion of manufacture of such a tube ? The definition of 'manufacture' given in Clause (f) clearly suggests that any process before it is regarded an incidental or ancillary to the completion of a manufactured product must have some relation to the manufacture of a finished product. However, unessential that process may be if it is incidental or ancillary to the completion of a manufactured product then that process falls within the compass of the expression "manufacture". Printing and lacquering cannot be said to be incidental or ancillary to the completion of manufacture of the product. They have no relation to the completion of manufacture of tubes because unprinted and unlacquered tubes are by themselves a marketable commodity requiring nothing else for completing their manufacture. Printing and lacquering are therefore not even remotely connected with the completion of the manufacture of aluminium tubes. It is a process which is independent of the manufacture of aluminium tubes. It is applied for the purpose of enhancing their salability and not for completing their manufacture. If such a commodity is subjected to central excise duty after it has been once paid on the plain extruded tubes, it will not be a duty on the manufacture of extruded iluminium tubes but it will be a duty on the sale of that commodity. We are therefore of the opinion that the printing and lacquering of plain extruded aluminium do not fall within the ambit of sub-item (e) of Item 27. This is our view on the plain reading of the said sub-item (e) of Item 27 in the light of the provisions of Sub-section (I) of Section 3 of the said Act.

11. A few decisions have been cited before us in this behalf. We now turn to them. <CITATION> , AIR 1968 SC 922 <ORG> was concerned with Item 14H in Schedule I to the said Act which specifies compressed liquefied or solidified gases more particularly described therein. It was a case where in the process . of manufacture of sugar by carbonisation process and in the process of manufacture of soda ash by solvay ammonia soda process, a manufacturer required carbon dioxide for the purpose of producing those two commodities. The manufacturer in that case had therefore set up a lime kiln which also generated kiln gas. The question which arose was whether kiln gas which the lime kiln produced was subject to excise duty under Item 14H which inter alia particularised carbon dioxide and compressed carbon dioxide. It is in that connection that <ORG> examined the definition of the expression "manufacture" given in Section 2(f) of the said Act. It has laid down that word "manufacture" implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character, or use. The said Act does not define goods. The <ORG> therefore must be taken to have used every word in its ordinary dictionary meaning. The dictionary meaning is that to become "goods" it must be something which can be ordinary come to the market to be bought and sold and is known to the market. In other words a new substance must be brought into existence from raw material. The test which <ORG> has therefore laid down is the test of distinctive name, character or use of the new substance which is brought into existence from materials.

12. In the instant case if we apply the aforesaid test we come to the inescapable conclusion that a printed and lacquered extruded aluminium tube does not have in relation to a plain extruded tube any distinctive name, or character use. Both can be used for the same purpose. Both enjoy the same character. Both bear the same name. The printed and lacquered extruded tube cannot be said by any stretch of imagination to be a new substance distinguishable from plain extruded tube. The first test laid down by <ORG> in the aforesaid decision therefore produces an answer in favour of the petitioner. It has been laid down by <ORG> that <ORG> duty is a tax on manufacture and not on sale. Since in our opinion the printed and lacquered extruded tubes do not involve any process incidental or ancillary to the completion of the manufactured product, to uphold the contention raised by Mr. <NAME> will be to uphold the imposition of <ORG> duty not on the manufacture of extruded tubes on which duty is already paid once but on the sale of printed and lacquered extruded tubes. We are, therefore, of the opinion that by printing and lacquering plain extruded tubes no different tariff item is brought into existence by the petitioner. The petitioner is, therefore, not liable to take out a licence for printing and lacquering them because it has been for the aforesaid purpose purchasing plain extruded duty-paid tubes from the market.

13. The next decision which has been cited before us is in <ORG> v. <NAME>) 1 SSC 7. A similar question in that case arose. While construing the expression 'manufacture'. it has been laid down by <ORG> that 'manufacture' implies a change but that every change is not manufacture though every change is not manufacture though every change in an article is the result of treatment, labour and manipulation. In order to satisfy the test of 'manufacture' it is necessary that there must be transformation, that is to say, a new and different article must emerge having a distinctive name, character or use. The transformation which is necessary in order to satisfy the test of 'manufacture' must be of corporeal and substantial nature. The test laid down by <ORG> in the case of (supra) has been followed in the subsequent case of (supra). The tests laid down by these two decisions, for the reasons stated above, have not been satisfied in the instant case.

14. The third decision is in <CITATION> ., AIR 1963 SC 791. In that case <ORG> was concerned with the chargeability of excise duty on the manufacture of Vanaspati under Items 12 and 13 of Schedule I to the said Act. It has been laid down in that decision that though manufacturing requires application of some sort of processes every processing cannot be equated to manufacture. Manufacture brings into existence, <ORG> has observed, a new substance and does not merely produce some change in substance, however minors in consequence it may be. This distinction has been brought out by <ORG> by relying upon the elaborate meaning of the expression "manufacture" given in permanent Edition of Words and Phrases, Volume 26. The passage quoted by <ORG> in that decision is in the following terms : -

" 'Manufacture' implies a change but every change is not manufacture, and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having distinctive name, character of use."

15. The printing and the lacquering of plain extruded tubes no doubt mean some change in the form of that article but they do not bring into existence a new article or substance altogether. The tube remains a tube and whether printed and lacquered or not, it is used for the purpose for which a plain extruded tube is used. Therefore printing and lacquering change the form of the extruded tubes but they do not bring into existence a new substance altogether which can be put to a use different from one to which a plain extruded tube is put. It does not enjoy a plain extruded tube enjoys and it does not bear a name distinguishable from that of a plain extruded tube.

16. The last decision which has been cited before us is in <CITATION> known as Ramlal Mansukhrai Rewari, AIR 1971 SC 2333. In that case <ORG> was concerned with Item 26A in the First Schedule to the said Act. It specifies copper and copper alloys in different forms and shapes. At the stage where copper billets were rolled into circles, the excise duty was levied because the manufacture of circles was complete. Therefore, in that case copper circles so manufactured became liable to excise duty at the rate mentioned against Item No. 26A (2). It was contended by the respondents to that case that copper circles which were subjected to payment of excise duty were uncut circles manufactured by rolling mills after rolling copper billets. Later on these uncut circles were trimmed and were converted .into utensils and sold as such in the market. Now Item 26A(2) as it was in force then mentioned amongst other things the manufacture of circles in any form or size. <ORG>, therefore, held that the manufacture of circles cut or uncut, was liable to payment of excise duty and negatived the argument that uncut circles cannot be held to be circles specified in the said Item. \ While placing that construction upon sub-item (2) of Item 26A, it took into account the expression "in any form or size" which was applicable to the expression "circles". It was further argued that those uncut circles were trimmed and converted into utensils. The argument that only trimmed circles can be treated as circles and as finished product for the purpose of Item 26A was turned down on the strength of the expression "circles in any form or size" used in that Item. It was held on the construction of the said Item that the <ORG> was aware that billets were converted into circles and that excise duty should be leviable both at the stage of manufacture of billets and at the stage of manufacture of circles. The argument advanced on behalf of the manufacturer was turned down because Item 26A clearly disclosed the intention of the <ORG> to levy central exciseduty at both stages - on billets as well as on circles. This decision cited by Mr. <NAME> latdoes not help him in establishing his contention because we are unable to read in Item 27 any intention on the part of the <ORG> to levy central exciseduty both on the manufacture of plain extruded tubes and on the printing and lacquering of such extruded tubes. Whenever <ORG> wanted to spread a wider sweep it has done so. Item 26A(2) furnishes one such instance by using the expression "in any form or size". Item 27(b) also furnishes an illustration of this type where the <ORG> has used the expression "in . any form or size" in respect of such manufactures as plates, sheets, circles and strips. Item 29A(3) used the expression "all sorts" in relation to parts of refrigerating and air-conditioning appliances and machinery. In a similar context sub-item (2) of Item 26B uses the expression "in any form or size". So also Item 26AA(ii) uses in a similar context the expression "all sorts". These are some of the illustrations which we have culled out from the first Schedule to the said Act in order to show that wherever the <ORG> wanted to cast a wide net in order to embrace a commodity or an article in all its conceivable forms it has done so. We do not find a similar attempt on the part of the <ORG> in Item 27. We are therefore of the opinion that only those goods which answer the description of extruded tubes of aluminium in the context of the present case are liable to payment of excise duty... We are therefore unable to uphold the argument advanced by Mr. <NAME>lat that the printed and lacquered extruded tubes of aluminium are different commodities distinguishable from plain extruded tubes and therefore liable to payment of central excise duty.

17. In the light of the view which we have expressed above, we are of the opinion that the petitioner is not liable to take out a license under Section 6 of the said Act for the purpose of carrying on its business activity of printing and lacquering plain extruded tubes of aluminium. The impugned notice issued by the respondent No. 1 to the petitioner and the impugned order made by the respondent No. 2 on appeal are therefore clearly void in law and cannot be sustain. They are ultra vires their powers under the said Act. They must therefore be quashed.

18. In the result we allow the petition and issue a writ of Certiorari quashing and setting aside the impugned notice and the impugned order and issue a writ of Mandamus directing the respondents to desist from enforcing them against the petitioner. Rule is made absolute with costs.


JUDGMENT <NAME>, Kt., C.J.

1. This is an application made to the <ORG> under Sub-section (3) of Section 66 of the Indian Income-tax Act asking the <ORG> to require the Commissioner to state a case and raise certain points of law. In substance the points of law are said to arise in this way. The assessee was assessed as an individual for the year 1932-33 in respect of his income for the previous year. He alleges that in May 1932 a son was born to him, and he says that having regard to the construction of two documents, the business in respect of which he was assessed was, as between himself and his son, a Hindu joint-family business. His contention is that the effect of the two documents is to show that he acquired his share in the business from his own father by a surrender of his interest in certain ancestral immoveable property, and that in that way his interest in this business is the interest of a joint Hindu family. The Income-tax Officer in the first instance, and the Assistant Commissioner on appeal, rejected the claim of the assessee, as I understand it, mainly on the ground that they considered these two documents illusory, and that no Hindu joint family existed. That, no doubt, is a question of fact, and the only point of law Which would arise in connection with that finding would be whether there was any evidence to justify the finding. Within sixty days after the decision of the Assistant Commissioner an application was made by the assessee to the Commissioner under Sub-section (2) of Section 66 , requiring him to state certain questions of law, and as not infrequently happens, when these applications are made by laymen, the questions of law formulated had not been carefully considered, and were, frankly, unintelligible. The learned Commissioner took the view that no question of law arose, the question at issue being one of fact, and therefore, he refused to state a case. The assessee then made an application under Sub-section (5) of Section 66 asking us to require the Commissioner to state a case. Now the view taken by this <ORG> more than once, and confirmed in the recent decision of <CITATION> (1934) 36 Bom. L.R. 818, is that we have power under Sub-section (3) of Section 66 , to direct the Commissioner to state a case raising questions of law which have not been formulated before him. The learned Advocate General has drawn our attention to the fact that that view has not prevailed in some of the other High <ORG>s of India, and he has referred particularly to a recent decision of a full bench of the High <ORG> of Rangoon, The Commissioner of Income-tax, Burma v. C. P. L. E. Chettiar Firm (1934) 2 I.T. Rep. 210. In that case, Sir <NAME> who delivered the leading judgment, expressed the view that in a reference under Section 66(2) the Commissioner has to state sufficient facts to raise the specific question of law which in the view of the assessee arises, that the ambit of Section 66(3) is not wider than that of Section 66(2) , and that in a reference under Section 66 (3) the <ORG> has seisin only of such questions of law as have been raised before the Commissioner and upon which the Commissioner has expressed his opinion. With great deference to Sir <NAME>, I am not prepared to accept that view, which seems to me to restrict the powers of the <ORG> in a manner unauthorized by the Act Under Section 66(2) , the assessee is not required to formulate precise questions of law, a task which few laymen are competent to perform. What he has to do within the required time, is to require the Commissioner to refer to the High <ORG> any question of law arising out of the order or decision of the Assistant Commissioner, and then the Commissioner has, within sixty days, to draw up a statement of the case, and refer it, with his own opinion thereon, to the High <ORG>. In the case of <CITATION> , (supra), this <ORG> laid down that an assessee requiring the Commissioner to refer questions of law to the <ORG> ought to formulate those questions. That is a rule of practice based on considerations of convenience, and designed to protect the <ORG> from unnecessary applications under Sub-section (3) ; but the Commissioner is not bound to refer only the questions so formulated. In practice, in a reference under Section 66(2) , the Commissioner seldom refers to the <ORG> questions in the exact terms formulated by the assessee. He raises the questions which in his view arise, and expresses them in his own language. Where the Commissioner refuses to state a case under Sub-section (2) on the ground that no point of law arises, the <ORG> under Sub-section (3), if not satisfied with the correctness of the Commissioner's view, can require the Commissioner to state "the case," that is the case which he ought to have stated under Sub-section (2), and to refer the case to the <ORG>. If the <ORG> thinks that questions of law arise, it ought to indicate to the Commissioner what those questions are, though the actual framing of the questions rests with the Commissioner. But the <ORG> under Sub-section (3) is no more limited than was the Commissioner under sub-s, (2) to the precise questions formulated by the assessee. In the present case, if the view of the Rangoon <ORG> is right, we must either refuse to direct the Commissioner to raise questions of law , which in our view do arise, or direct the Commissioner to raise the questions which the assessee suggested and which may have meant something to him but are unintelligible to a lawyer. Sir <NAME> thinks that on our interpretation of the Act the assessee may raise frivolous questions before the Commissioner in the hope that the <ORG> will discover some meritorious, point of law. The anticipated danger is not, I think, a real one. If frivolous questions are raised they are soon disposed of, and the assessee has to pay the costs. In any case it is better that the <ORG> should occasionally be moved unnecessarily than that persons should be deprived of the right to raise proper points of law through their inability to express them correctly.

2. Turning now to the circumstances of the present case, I think there are questions of law which arise, and the actual form of the questions will have to be considered by the Commissioner. But substantially, I think, the questions are, first of all, whether on the true construction of these two documents which are dated August 31, 1928, and March 28, 1929, the assessee's share in the partnership firm, <ORG>, was an undivided Hindu family estate as between himself and his son in which the son acquired an interest at birth, and if so, whether there was any evidence to justify the Assistant Commissioner in coming to the conclusion that those two documents were illusory and should not be given effect to according to their terms: Then if these questions were answered in the affirmative, there would be a third question, which is an important question of general law under the Income-tax Act , whether the birth of the son in May, 1932, affected in any and what way the assessment to which the assessee was liable under the Income-tax Act in respect of the profits of the business. I do not suggest that those questions are in the form in which they ought to be raised, but that is a sufficient indication to the Commissioner of the points of law which, we think, arise, and which we direct him to state in a case to be referred. Costs to be costs in the reference. ' <NAME>, J.

3. I agree, and have nothing to add.


ORDER <NAME>, J.

1. In this writ petition, Mr. <NAME>, learned counsel for the petitioner, challenges as illegal and void, the order Ex. P-11, passed by <ORG> on 8-3-1963 placing, under suspension, the petitioner, who was at the material time, the 1st Member of <ORG>, in the State. The order shows that the petitioner has been placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, till the disciplinary proceedings initiated against the petitioner are completed. It is necessary to state the matters which are mentioned in the order, Ex. P-11, which will show, the circumstances under which <ORG> decided to take action under Rule 7.

2. It is mentioned that the Government have received several petitions containing serious allegations of official misconduct against the petitioner who is a member of <ORG> and the First Member of <ORG> and was also formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquiries are stated to have been conducted into the allegations and they reveal prima facie, according to <ORG>, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. They also refer to certain comments made by a learned Judge of this Court, on the conduct of the petitioner as Commissioner, in O. P. No. 2306 of 1962, in which, judgment was delivered on 12th February 1963.

3. After adverting to the observations of <ORG> that the affairs regarding the disposal of valuable forest lands belonging to a religious institution known as <ORG>, reveal a very disquieting state of affairs and, that due notice will have to be taken by the competent authority in the interest of public administration and in the preservation of the forest wealth, no less than in the interest of the institution itself, Ex. <NAME> proceeds to state that the judgment in the said original petition, and the preliminary report of <ORG>, have disclosed the following grave charges of serious irregularity and official misconduct on the part oi the accused officer :

1. "Notwithstanding the provisions in the Madras Hindu Religious and Charitable Endowment Act and the Rule issued thereunder, the accused officer had in several cases initiated proposals for the disposal of valuable properties belonging to several Devaswoms and then sanctioned those proposals under Section 29 of the Act.

2. One of the persons to whom the accused officer had sanctioned the lease of 200 acres of land belonging to <ORG>, was his own direct nephew. The action of the officer was contrary to the provision in Rules 3 of the AH India Services (Conduct) Rules 1954 which enjoin every member to maintain absolute integrity in official matters.

3. The accused officer after obtaining applications from persons, in whose favour he had sanctioned the grant of leases made out applications in their name in forms cyclostyled in his office (even making corrections in the applications in his own handwriting) and forwarded them to the "fit person" for signature and transmission to the Collector for sanction to fell the trees on the land. The accused officer also made his Personal Assistant to write a D. O. letter to the Personal Assistant to the Collector to see that applications were granted. The accused officer thereby interfered with the District Collector who was his subordinate Officer, in the discharge of his statutory responsibilities. The accused officer also permitted persons whose leases applications were pending sanction by him, to enter upon the lands, construct sheds and post watchmen. He had also interested himself in the actual allocation of the lands between the several nominees and demarcated on a sketch prepared for the purpose, the particular portions to be given to each".

4. In connection with item No. 1, it may also be stated that the State Government again refer to an observation of <ORG> in the said writ petition regarding the conduct of the Commissioner (the accused officer herein) in the matter of sanctioning leases and the further observation to the effect that it was quite improper for the Commissioner to have initiated the proposals for lease and then acted in judgment over his own proposals.

5. Ex. P-11 further proceeds to state that detailed enquiry into the charges by the X Branch is in progress and as the evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of <ORG>, in the interests of proper conduct of the enquiry, it is necessary that the officer should not be allowed to continue in that post. Ex. P-11 further states :

"Having due regard to the nature of the charges against the officer and the circumstances, the proper course would be to place him under suspension. <NAME>, I. A. S., First Member, <ORG>, is therefore placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, till the disciplinary proceedings initiated against him are completed."

There is, no doubt, a further consequential direction given to the 2nd Member, <ORG>, to assume charge from the accused officer and to attend to the duties of the First Member, <ORG>, until further orders.

6. The main attack that is made as against this order is that having due regard to the scheme of the All India Services (Discipline and Appeal) Rules, 1955, with particular reference to the provisions contained in Rule 7, no action by way of suspending an officer can be taken under that Rule, unless and until charges have been actually framed as against the officer, in question as contemplated under Rule 5. I will have to advert to the scheme of these Rules a little later.

7. In the affidavit filed in support of this application, no doubt, various matters are stated but it is not necessary to go into all those, aspects in view of the order passed by me on 20-3-1963 in C. M. P. No. 1685 of 1963. The learned counsel for the petitioner, Mr. <NAME>, had then stated that the arguments on the writ petition can be restricted to a consideration of the question of jurisdiction raised by his client as a purely legal one and that the writ petition can be disposed of on that basis. Recording this representation, I had also given directions that it has become unnecessary for the <ORG> to file any detailed counter-affidavit traversing the various allegations of fact contained in the petitioner's affidavit. But I had also indicated that it is open to the <ORG> to file a counter-affidavit restricted and limited only to the question of law relating to the jurisdiction of the <ORG> Government to place the officer under suspension as they have done under Ex. P-11.

8. The State Government have accordingly filed a counter-affidavit limited to the matter referred to above.

9. Therefore, I will only advert to the averments made in the affidavit in so far as they relate to this legal aspect.

10. According to the petitioner, he is a senior officer of <ORG> having put in a total service of 25 years and' he has been a Member of <ORG> from 1955 and functioning as the First Member of <ORG> from December, 1961, till about October 1962.

11. Then he refers to <ORG> situated in Wynad Taluk which was one of <ORG> Hindu Religious Institutions under the Supervisory control of <ORG>, during the petitioner's term of office as Commissioner. Then he refers to various matters in relation to the lease of the properties belonging to that institution and several other matters. The petitioner appears to have taken action as Commissioner against the Manager of the said institution and had placed him under suspension pending disciplinary proceedings. That action of the petitioner appears to have been challenged by the manager in O. P. No. 2306 of 1962. It is in the course of the judgment pronounced in the said writ petition, that certain observations appear to have been made which, according to the petitioner, are obiter dicta, in relation to the disposal of the forest land belonging to the institution.

12. Then the petitioner refers to the order of suspension passed as against him evidenced by Ex. P-11. According to the petitioner an order of suspension under Rule 7 can be passed only after the mandatory conditions provided therein are satisfied and one of the pre-requisites for exercising jurisdiction under Rule 7 is stated to be the framing of charges as against an officer. In this case as admittedly no charges have been framed or served upon the petitioner, it is urged that in consequence the order is one passed without jurisdiction. This aspect is elaborated in tho various grounds mentioned in the affidavit.

13. There are several additional affidavits filed by the petitioner which again more or less reiterate the legal aspect referred to above in different ways.

14. The Chief Secretary to <ORG> has filed the counter-affidavit on behalf of the <ORG>. It is specifically stated that in view of the representation of the petitioner's counsel and recorded by this Court on 20th March, 1963, in C. M. P. No. 1885 of 1963, the various averments on facts made in the affidavit or additional affidavits filed by the petitioner have not been traversed and, therefore, those allegations cannot and should not be deemed to have been admitted.

15. According to the <ORG>, on a proper understanding of the rule and of the facts placed in the affidavit the action of "he Government in passing the order, Ex. P-11, is perfectly valid and justified. The <ORG> Government takes up the stand that there is no violation of any of the petitioner's constitutional protection as a senior I. A. S. Officer nor has there been any violation of the All India Services Act or the Rules --framed thereunder. The <ORG> Government controvert the stand taken by the petitioner that suspension pending enquiry can be ordered only after charges against the officer have been actually framed. Such an interpretation is, according to the <ORG> Government, not warranted by the provisions of Rule 7; and the very object of Rule 7 itself would be defeated and frustrated, if the interpretation sought to be placed upon it by the petitioner is accepted. According to the <ORG> Government, the expression "charges" in Rule 7 merely means accusation or a gist of allegations as against an officer, and in this case, the petitioner. The <ORG> Government also aver that the observations made by a learned Judge of this Court in O. P. No. 2306 of 1962 cannot be considered to be mere obiter and they are entitled to very great weight and consideration.

16. It is further stated that though at the time of the passing of the order, Ext. P-11, the petitioner had ceased to be the Commissioner for <ORG>, nevertheless it was found that the petitioner's presence as 1st Member. <ORG>, considerably hindered the investigation, that has already been set up against him and it was rendered almost impossible for the investigating officer to get at records even after the petitioner ceased to be the Commissioner of <ORG>. Therefore, the Government reasonably felt that this situation existed because the petitioner continued as the First Member of the <ORG> and the relevant records and files were with the Third Member of the <ORG>.

17. It is further stated that apart from the observations contained in the judgment of <ORG> in O. P. No. 2306 of 1962 regarding the conduct of the petitioner as commissioner, long before those observations were made, enquiry was proceeding in regard to those very matters which had been alleged as against the petitioner.

18. The State Government further take up the position that it is not correct to say that no disciplinary proceedings have been actually initiated as against the petitioner. According to them, the initiation of investigation by <ORG> is sufficient to constitute the initiation of disciplinary proceedings under Rule 7. In any event, according to <ORG>, from the observations of <ORG> in O. P. No. 2306 of 1962 and also from the preliminary report of the X-<ORG> dated 23-2-1963 received by the Government on 27-2-1963 the Government were satisfied that disciplinary proceedings had to be started against the petitioner and for that they directed further investigation and placed the petitioner under suspension.

19. The State <ORG> further aver that several petitions alleging serious irregularity and misconduct as against the petitioner had been received by them. The files disclosed that such petitions were received even in 1960 and that as early as 1961 an enquiry by the X-Branch had been ordered into those allegations. The files, according to <ORG>, will show that the petitioner was resisting the attempt made by the investigating officers to get at the records and pursue the investigation and, therefore, little progress could be made in regard to the investigation. Ultimately, investigations into some of, the allegations, disclosed in the petitions received by <ORG>, were made and a preliminary report dated 23-2-1963 was submitted by the Inspector General of Police to <ORG> with a forwarding letter dated 27-2-1963 and the said report was received by <ORG> oft 27-2-1963.

20. It is further averred that the said preliminary report disclosed prima facie evidence of serious irregularities and misconduct as against the petitioner. It was at that stage the judgment in O. P. No. 2306 of 1962 had also been delivered by <ORG>. On the basis of those materials. Government decided that it was necessary to pursue the disciplinary proceedings against the petitioner and for that purpose further investigations have been ordered and it was felt very necessary to keep the petitioner under suspension. According to the State, having due regard to the conduct of the petitioner at the earlier stage of the enquiry in preventing access to the records either directly or indirectly, and having regard also to the fact that at the enquiry to be pursued, evidence will have to be taken from very many of the subordinates of the petitioner, it was felt necessary in the interests of justice, that an order has to be made suspending the petitioner pending enquiry against him and it was under those circumstances that the order Ex. P-11 was passed.

21. In a reply affidavit that has been filed by the petitioner, the allegation of the <ORG> that the petitioner adopted obstructive tactics at an earlier stage has been controverted. But it is not necessary for me to go into all those aspects in this writ petition, because the question that arises for consideration is one of law, namely, as to whether the contention of Mr. <NAME>, learned counsel for the petitioner that there is no jurisdiction in the <ORG> to place the officer under suspension under Rule 7, before framing charges as against him, is to be accepted or not.

22. The All India Services (Discipline and Appeal) Rules, 1955, hereinafter to be called the Rules, have been framed by the Central Government, after consultation with the Governments of the States concerned in exercise of the powers conferred by Sub-section (1) of Section 3 of the Alt India Services Act, 1951, Central Act 61 of 1951.

23. The Act itself is a very short one containing only four sections. The All India Services Act , 1951, is an Act to regulate the recruitment and the conditions of service of persons appointed to <ORG> common to the Union and the States. Section 2 defines the expression "<ORG>" as a service known as <ORG> or the service known as <ORG>. Section 3 (1) provides for the Central Government, after consultation with the Governments of the States concerned, making rules for the regulation of recruitment and the conditions of service of persons appointed to <ORG>. Sub-section (2) of Section 3 and Section 4 are not material lor the present purpose.

24. The rules have been framed, as I have mentioned earlier, by virtue of powers conferred upon <ORG> under Sub-section (1) of Section 3 of Central Act 61 of 1951. Clause (b) of Rule 2 defines the expression "Government". At this stage I may mention that Mr. <NAME>, learned counsel for the petitioner, has not taken any contention before me that <ORG> in this case, will have no jurisdiction to place the officer under suspension under Rule 7, provided the conditions mentioned therein are satisfied. Therefore, it is clear, that if action has been taken in accordance with Rule 7, the competency of <ORG> to take such an action is beyond controversy. Therefore, it is not necessary for me to consider in detail the definition of the expression "Government" in Rule 2 (B). Clause (c) of Rule 2 again defines the expression "Member of the Service" as a member of <ORG> or a Member of <ORG> as the case may be. Rule 3 provides the various penalties that may be imposed on a member of the service for good and sufficient reasons "as hereinafter provided". There are six Explanations in this rule which are not also necessary to be noted.

25. Rule 4 (1) provides that the penalty of dismissal, removal or compulsory retirement shall not be imposed on a member of the service except by an order of <ORG>. Sub-rule (2) of Rule 4 refers to the Government which is competent to institute disciplinary proceedings against an officer and to impose penalty in the circumstances mentioned therein. Rule 5 on which considerable reliance has been placed by Mr. <NAME>, learned counsel for the petitioner, together with the various sub-rules, is as follows :

5. "Procedure for imposing penalties :

(1) without prejudice to the provisions of the Public Servants Inquiry Act , 1850, no order shall be passed imposing any of the penalties specified in Rule 3 on a member of the <ORG> unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself.

(2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the <ORG>, charged, together with a statement of the allegations on which each charge is based and of any other circumstances which ie is proposed to take into consideration in passing orders on the case.

(3) The member of the <ORG> shall be required, within such time as may be considered by the <ORG> reasonably adequate in the circumstances of the case, to put in a writ Vest statement of his defence and to state whether he desires to be heard in person.

(4) The member of the Service concerned may request for an access to official records for the purpose of preparing his written statement provided that the Government may, for reasons to be recorded in writing refuse him such access if in its opinion such records are not strictly relevant to the case or it is not desirable in the public interest to allow such access.

(5) After the written statement is received from the member of the Service in accordance with Sub-rule (3) or if no such written statement is received within the time allowed Government may, if it considers it necessary, appoint a Board of Inquiry or an Inquiry Officer to inquire into the charges framed against the member of the Service and shall have the charges inquired into as provided in Sub-rule (6). If the Government does not consider it necessary to appoint a Board of Inquiry or an Inquiry Officer, the Government shall inquire into the charges in such manner as it deems fit.

(6) If the member of the <ORG> desires to be heard in person, he shall be so heard. If he desires that an oral inquiry be held or if the Government so directs, an oral inquiry shall beheld by <ORG> or the Inquiry Officer, as the case may be. At such inquiry evidence shall be heard as to such of the allegations as are not admitted and the member of the <ORG> shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish.

Provided that <ORG> or the Inquiry Officer, as the case may be, may for reasons to be recorded in writing, refuse to call a witness.

(7) Where <ORG> is appointed, it shall consist of not less than two senior officers, provided that at least one member of such Board shall be an officer of the Service to which the member of the Service belongs.

(8) The proceedings conducted against a member of the <ORG> under the provisions of this rule shall contain a sufficient record of the evidence and a report setting out the findings and the grounds on which they are based, but shall not contain any recommendation relating to the penalty to be imposed unless the Government has specifically called for such recommendation.

(9) After the inquiry against a member of the <ORG> has been completed and after the punishing authority has arrived at any provisional conclusion in regard to the penalty to be imposed, if the penalty proposed is dismissal, removal, compulsory retirement or reduction in rank, the member of the <ORG> charged shall be supplied with a copy of the report of inquiry and be given a further opportunity to show cause why the proposed penalty should not be imposed on him:

Provided that if the punishing authority disagrees with any part or whole of the findings of <ORG> or the Inquiry Officer, the point or points of such disagreement together with a brief statement of the grounds thereof, shall also be communicated to the member of the <ORG>.

(10) Notwithstanding anything contained in this rule, --

(a) it shall not be necessary to follow the procedure laid down in Sub-rules (2) to (9) in cases where it appears to the authority competent to impose the penalty at the initial stage of the proceedings that the penalty of censure would be adequate, but if at any later stage it is proposed to impose any other penalty specified in Rule 3, the procedure laid down in the said Sub-rules (2) to (9) shall be followed;

(b) it shall be lawful for the authority competent to impose the penalty to waive, for good and sufficient reasons to be recorded in writing, any of the provisions of this rule in any exceptional case where such authority is satisfied that there is difficulty in strictly complying with such provisions and that compliance with such provisions can be waived without any injustice to the member of the Service concerned;

(c) the provisions of this rule shall not apply in relation to the imposition on any member of the service of any of the penalties specified in Rule 3 -

(i) where the penalty is imposed on the ground of conduct which has led to his conviction on a criminal charge; (ii) where the authority empowered to impose a penalty is satisfied that, for some reason to be recorded in writing, it is not reasonably practicable to follow the provisions of this rule; and

(iii) where the authority empowered to impose a penalty is satisfied that in the interest of the security of the State, it is not expedient to follow the provisions of this rule".

26. It will be seen that Rule 5 specifically refers to the procedure for imposing penalties. Sub-rule (1) provides that no order imposing any of the penalties specified in Rule 3 shall be passed unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. Sub-rule (2) provides for the grounds on which it is proposed to take action being reduced to the form of a definite charge or charges and to their communication to the member of the Service charged along with a statement of the allegations on which each charge is based and any other circumstances which it ia proposed to take into consideration in passing orders on the accused. Sub-rule (3) gives a right to the member of the Service concerned to put in a statement of his defence and also to state whether he desires to be heard in person. Sub-rule (4) relates to the giving of access to official records subject to the limitations mentioned therein. Sub-rule (5) provides for the appointment of <ORG> or an Inquiry Officer to "inquire into the charges framed" against a member of the Service and the charges being inquired into as provided in Sub-rule (6). If no <ORG> or Inquiry officer is appointed the Government are to inquire into the charges in such manner as they deem fit.

Sub-rule (6) provides for the hearing of the member of the <ORG> if he so desires and for the conduct of an oral inquiry again if he so desires or if the Government directs and that inquiry is to be held by <ORG> or the Inquiry Officer as the case may. It also provides for adducing of evidence in respect of the allegations that are not admitted and the member of the <ORG> being entitled to cross-examine witnesses, give evidence in person and also adduce evidence on his behalf, subject again to a limitation indicated in the proviso. Sub-rule (7) relates to the manner in which <ORG> is to be constituted. Sub-rule (8) again relates to the proceedings containing a sufficient record of the evidence and a report setting out the findings and the grounds on which they are based. There is to be no recommendation relating to the penalty to be imposed unless Government has specifically desired such a recommendation to be made. Sub-rule (9) again deals with the further action to be taken by the punishing authority after the inquiry has been completed and after a provisional conclusion in regard to the penalty has been arrived at. Sub-rule (10) provides for the various contingencies under which the procedure indicated in Sub-rules (2) to (9) need not be necessarily followed.

27. Rule 6 makes provision to the effect that no order imposing on a member of the <ORG> any penalty specified in Rule 3 shall be passed by the <ORG> except after consultation with the <ORG>. There is also a proviso to Rule 6 dealing with cases where there is a difference of opinion between the State <ORG> and the <ORG>, Rule 7 again, on the basis of which, the State <ORG> in this case have passed the order under attack, is as follows:

"1. Suspension during disciplinary proceedings :

(i) If having regard to the nature of the charges and circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started, the Government may

(a) if the member of the Service is serving under it pass an order placing him under suspension, or

(b) if the member of the service is serving under another Government, request that Government" to place him under suspension, pending the conclusion of the inquiry and the passing of the final order in the case :

Provided that in cases where there is difference of opinion between two State Governments, the matter shall be referred to <ORG> whose decision thereon shall be final.

(2) A member of the Service who is detained in official custody whether on a criminal charge or otherwise, for a period longer than forty-eight hours, shall be deemed to have been suspended by the Government concerned under this rule.

(3) A member of the Service against whom a criminal charge is pending may, at the discretion of the <ORG> under which he is serving, be placed under suspension until the termination of the proceedings if the charge is connected with his position as a <ORG> servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude".

ft is not really necessary to consider the various" other rules.

28. According to Mr. <NAME>, learned counsel for the petitioner, a perusal of Rule 7, under which action has been taken, clearly shows that it is mandatory that <ORG> must have (a) regard to the nature of the charges and (b) the circumstances in any case, before it is satisfied that it is necessary or desirable to place a member of the <ORG> under suspension. In this connection, the learned counsel placed considerable reliance upon the use of the expression "charge" occurring in Rule 7 (1) and urged that the said expression must bear the same meaning that it must have, when it is used in Rule 5 referred to above. The learned counsel urged that Rule 5, and in particular Sub-rule (2) therein, has clearly laid down that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges and they are to be communicated to the member of the <ORG>; and it is the existence of such a definite charge or charges referred to in Sub-rule (2) of Rule 5 that is again indicated in the expression "charge" occurring in Rule 7 (1). That is, in short, according to the learned counsel, unless a definite charge or charges have been framed, as is pontemplated under Sub-rule (2) of Rule 5, for the purpose of imposing penalty against an officer, no action can be taken by way of suspending an officer under Sub-rule (1) of Rule 7. The learned Counsel, no doubt, urged that the heading of Rule 7 itself is "suspension during disciplinary proceedings". According to the learned counsel, disciplinary proceedings cannot be considered to be initiated as against a <ORG> servant unless the charge or charges referred to in Sub-rule (2) of Rule 5 have been framed.

29. The learned counsel also urged that unless the charge or charges have been framed as against a Government servant, it is idle to expect a compliance with Sub-rule (1) of Rule 7 wherein one of the essential requisites is that <ORG> must have "regard to the nature of the charges". In this case, according to the learned counsel, even on the averments made in the order under attack and also in the stand taken by <ORG> in its counter-affidavit, it is clear that the proceedings as against the petitioner are only in the stage of allegations which are under investigation by the X-Branch. After such an investigation, <ORG> may or may not think it necessary to ask the petitioner to face an enquiry by framing definite charge or charges. Therefore, till the stage of framing of a charge has been reached, the learned counsel urged, that no action cart be taken under Sub-rule (1) of Rule 7.

30. In this connection, the learned counsel referred me to the different phraseology used in the matter of suspension, pending an enquiry in certain other rules. The learned counsel referred me to Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules 1957, framed by the President in exercise of the powers conferred by the proviso to Article 309 and Clause 5 of Article 148 of the Constitution. The material part of this rule is Rule 13 (1) (a) wherein it is provided that the authorities mentioned therein may place a Government Servant under suspension "where a disciplinary proceeding against him is contemplated or is pending". The learned counsel also referred me to Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, regarding the suspension of a Government servant where a disciplinary proceeding against him is contemplated or is pending. That Rule is more or less identical with the Central Civil Services Rules referred to above. That is, according to the learned counsel, under the Central Service Rules and <ORG>. Rules power has been given to suspend a Government servant even when a disciplinary proceeding is contemplated. According to the learned counsel evidently in view of the high position occupied by officers in <ORG>, it was thought that action by way of suspension, under Rule 7, can be taken only after the particular stage of framing charges has been arrived at. It is intended as a safeguard or protection to such officers, according to the learned counsel.

31. The learned counsel also referred me to certain decisions to the effect that the same word occurring in the same section of the same set of rules must be given the same meaning unless there is anything to indicate the contrary. That is, according to the learned counsel, the same meaning that is to be given to the expression "charge'' or "charges" occurring in Sub-rule (2) of Rule 5 must be given to the expression "charge" occurring in Sub-rule (1) of Rule 7. The proposition enunciated by the learned counsel admits of no controversy because that is well laid down. I am not referring to the decisions of certain <ORG> relied on by the learned counsel. It is enough if reference is made to the decision of <ORG> in <CITATION> , AIR 1954 SC 592 and in particular to the observation at page 595 wherein the proposition referred to above is laid down by their Lordships. But as I am indicating later this principle will not assist the petitioner.

(32) The learned counsel also referred me to the decision of <ORG> in <CITATION> ., AIR 1961 Cal 40 where the learned Judge had to consider the distinction between a fact-finding enquiry and departmental enquiry. In that connection, the learned Judge has observed that the Departmental enquiry starts from the charge-sheet and the charge-sheet must be specific and must set out all necessary particulars. The learned counsel relied upon this decision in support of his contention that unless a charge-sheet has been framed, it cannot be stated that an enquiry has commenced in this case. I do not think that this decision of <ORG> will assist the learned counsel in this matter. There can be no controversy, that if this Court is concerned to find out whether an enquiry has commenced as against an officer having due regard to the provisions contained in Rule 5, certainly the proposition laid down, by the learned Judge can very well be applied and it can be held that enquiry proceedings for purposes of imposing a penalty, can be considered to commence only from the framing of a definite charge or charges. But that certainly is not the position in the case before me, (33) Mr. <NAME>, learned counsel for the petitioner, referred me to the decision of <ORG> in <CITATION> , AIR 1959 All 230 wherein the learned Judge has held that the framing of charge must precede or at any rate synchronise with the suspension. The reliance placed upon this decision, again, by the learned counsel, is for the purpose of establishing that unless charges have been framed, no suspension pending enquiry can be ordered.

(34) As rightly pointed out by the learned Advocate General, this decision cannot and will not assist the learned counsel for the petitioner. No doubt, the order placing an officer, in the employ of <ORG> under suspension, was challenged and that challenge, was on the basis of Section 69-A (1) of the U. P. Municipalities Act, Act 2 of 1916, which is as follows:

"69-A(1). If the President has reasons, to believe that the Executive Officer or the Secretary or any of the other officers of the <ORG> appointed under Section 68 , is corrupt or has persistently failed in the discharge of his duties or is otherwise guilty of misconduct, he may frame charges against him and where he is satisfied that it is so necessary, he may, for reasons to be recorded, suspend him pending the completion of the enquiry.

(2) Whenever the President takes action under Sub-section (1) he shall inform <ORG> and also forward to it a copy of the charges framed.

(3) The enquiry under Sub-section (1) shall be carried on in such manner as may be prescribed by rules, (4) After the inquiry is completed, the President shall submit the record with his own recommendation to <ORG> or to the <ORG> as he may consider fit. The State Government, or the <ORG>, as the case may be, shall thereupon, notwithstanding anything contained in Sub-section (1) of Section 58 , or 67 or 69, proceed to consider the report and may, after such further inquiry as it may deem necessary, punish, dismiss, remove or exonerate the Executive Officer or the Secretary or such other officer to whom Section 69 applies, as the case may be.

(5) Whenever the Board acts under Sub-section (4), the condition prescribed in Section 58 shall apply and an appeal shall lie to <ORG> in the manner and to the extent provided in the said section".

It will be seen that Section 69-A (1) specifically provides that under the circumstances mentioned therein, the President has to frame charges against the officer and where he is satisfied that it is necessary he can place the officer under suspension pending the completion of the enquiry. Therefore, the placing of an officer under suspension pending inquiry is closely linked up, by the sub-section with the framing of charges as against the officer. It is in considering that section the learned Judge, if I may say so with respect. Quite rightly, came to the conclusion that in view of the grammatical construction to be placed on Section 69-A , the inquiry contemplated by that section can be considered to be initiated only by the framing of the charges and that only then can suspension be ordered. This decision again, in my view, does not assist Mr. <NAME>, learned counsel for the petitioner.

35. According to the learned Advocate General, the scheme of Section 5 , which deals with the procedure to be adopted for imposing penalties, is entirely different from the scheme of Rule 7 which gives jurisdiction to <ORG> to place an officer under suspension. The learned Advocate General also urged that "disciplinary proceedings", cannot certainly be' restricted only to the actual framing of the charge and an inquiry being conducted as against the officer. Even prior to that stage, the learned Advocate General urged there may be instances where very grave and serious allegations of misconduct are made as against an officer, which if proved, will entail any of the penalties referred in Rule 3. The Government will have to necessarily investigate and collect the necessary materials before an actual enquiry is commenced as against the officer. When once the allegations of such a character have been received, and the Government have initiated an enquiry into those allegations, the learned Advocate General urged that the disciplinary proceedings must be considered to have been initiated as against the officer. That is exactly what has happened in this case. Apart from the observations contained in the judgment of <ORG> in O. P. No. 2306 of 1962 regarding the conduct of the petitioner as Commissioner, there is the other circumstance, namely that even as early as 1960, the Government have been receiving various allegations of misconduct as against the petitioner, and those allegations were being inquired into by the X-Branch. A preliminary report has been submitted by the Inspector General of Police which was received by the Government on 27-2-5063. Those materials available before the Government clearly show that there are very serious charges of misconduct as against the petitioner, which, if established, will result in imposing any one of the penalties referred to in Rule 3.

36. The learned Advocate General has also urged that the expression "charges" in Rule 7 has been used in the general sense of an imputation or accusation or allegation as against an officer; whereas Rule 5 has specifically laid down the procedure for imposing the penalties. Before imposing those penalties, the Rule has laid down very clearly the procedure to be adopted and in that connection it is stated that the grounds on which it is proposed to take action are to be reduced to the form of definite charge or charges and have to be communicated to the member of the <ORG> charged. The charges, in Rule 5 (2) has relation, to what an officer has to meet in an inquiry.

37. The fact that in the Central Civil Services Rules or in the Kerala Rules, power has been given specifically to place an officer under suspension even when disciplinary proceedings are contemplated has no relevancy at all in the matter of construction of Rule 7.

38. In this case, according to the learned Advocate General, Rule, 7 has been properly complied with, namely, that the Government had regard to the nature of the grave allegations or serious allegations received as against the petitioner and having due regard to the circumstances of this case they thought it fit to place the petitioner under suspension.

39. In this connection, the learned Advocate General has also referred me to the observations of <ORG> regarding the object of placing an officer under suspension pending enquiry. <CITATION> . AIR 1957 SC 82 <ORG> has laid down that suspension pending enquiry is not a punishment at all and orders of suspension are meant only as security measures or precautionary ones taken in the interest of the service. No doubt, these observations were made in connection with an industrial dispute. But in a more recent judgment, their Lordships again in <CITATION> , (1963) 1 SC WR 127 : (AIR 1963 SC 687) observe at page 135 (of SCWR) : (at p. 691 of AIR) :

"Nobody can seriously doubt the importance and necessity of proper disciplinary action being taken against <ORG> Servants for inefficiency, dishonesty or other suitable reasons. Such action is certainly against the immediate interests of the <ORG> servant concerned; but is absolutely necessary in the interests of the general public, for serving whose interests, the <ORG> machinery exists and functions. Suspension of a <ORG> servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him, a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the procedure."

These observations, if I may say so with great respect, emphasise that suspension of a <ORG> servant pending an inquiry is really a necessary part of the procedure for taking disciplinary action as against him.

40. Having due regard to the various aspects that have been presented before me by Mr. <NAME>, learned counsel for the petitioner, and the learned Advocate General appearing for the <ORG>, in my view, it cannot be stated that the order Ext, P-11, which is under attack in this writ petition is one passed by the <ORG> Government, without jurisdiction,

41. I have already referred to the scheme of the Rules by referring to the various matters mentioned therein. Rule 5 lays down the specific procedure for imposing penalties and it is in connection with that that Sub-rule (2) clearly says that the grounds on which it is proposed to take action should be reduced to the form of a definite charge or charges. In this connection it is also seen that Sub-rule (2) also uses the expression that the definite charge or charges have to be communicated "to the member of the service charged". It is also obligatory under Sub-rule (2) of Rule 3 that along with the charge or charges the statement of the allegations on which the charge is based and any other circumstances have also to be communicated to the member of the Service charged. The various other provisions in Rule 5 clearly show how exactly the further proceedings, for the purpose of imposing penalty, as against a member of the service are to be continued.

42. In my view, the matters provided for in Rule 5 have to be strictly limited only for the purposes for which they are intended, namely, the procedure for imposing penalties. It is really in that connection that the expression "charge" taken along with the expression "member of the service charged" assumes importance that there must be a framing of a charge as against the officer. But in my view, these circumstances have no bearing in considering Rule, 7. In my opinion, the expression "charges" no doubt, occurring in Rule 7 cannot certainly be considered to have the same connotation as the expression "definite charge or charges" as against "a member of the service charged" occurring in Sub-rule (2) of Rule 5 or "charges framed" occurring in Sub-rule (5) of Rule 5. In my view, the very restricted meaning sought to be given to the expression "disciplinary proceedings" by Mr. <NAME>, learned counsel for the petitioner, namely, that it takes in only the stage when a charge is framed and an inquiry is held, cannot certainly be accepted. In fact, it will be seen that Rule 7 deals with a wider sphere, namely, during the entire course of disciplinary proceedings. It is in that context that the expression "charges" occurring in Rule 7 (1) is to be understood. If so understood, in my 'view, that expression has no reference to the actual charges that are framed as against a public servant and in respect of which he is asked to face an inquiry before a penalty is imposed under Rule 5, but really takes in serious allegations of misconduct that may have been made as against an officer. If <ORG>, having due regard to the nature of such serious allegations of misconduct and other circumstances, are satisfied that an officer is to be placed under suspension under Rule 7 (1), in my view, such an action cannot be characterised as one taken without jurisdiction. If the intention was that an I. A. S. Officer can be placed under suspension under Rule 7, only after charges for an inquiry have been actually framed, and if those are the charges that are referred to as "charges" in Rule 7, in my view, the Rule would have been framed by adding the word "framed" immediately after the words "the charges" in Rule 7 (1). The rule making authority has used such an expression as "inquire into the charges framed" in Sub-rule (5) of Rule 5. The absence of such an expression "framed" after the word "charges" in Rule 7 (1) in my view is a clear indication that "charges" referred to in Rule 7 (1) are not identical with charges framed as against an officer for purposes of an inquiry under Rule 5 (1).

43. I am in agreement with the contention of the learned Advocate General that in this case the disciplinary proceedings must be considered to have commenced, even when very serious allegations of misconduct as against the petitioner are stated to have been received by the <ORG> and these allegations of misconduct are pending investigation, by order of <ORG>, at the hands of the <ORG>. 'The learned counsel Mr. <NAME>, has stated that the observations made in the judgment of <ORG> in O. P. No. 2306 of 1962 cannot be taken into account at the present stage because that judgment will be the subject of an appeal. I will proceed on that basis for the present. But even then, the State <ORG> have categorically stated that even from 1960 onwards, there have been several allegations of misconduct as against the petitioner and after an investigation into those matters, a preliminary report has been received from, the Inspector General of <ORG> by the State <ORG> on 27-2-1963. In the order Ext. P-11, the State <ORG> have also stated that the said preliminary report has disclosed three grave charges of serious irregularity and official misconduct referred to therein. No doubt, the proposition is well-settled that where an authority takes action under an Act or the Rules framed thereunder, it must conform to the provisions of the statute or the rules, which have conferred upon it the power to take such action, and if there is any violation of the said provisions, the public servant will have a right to challenge the decision of that authority. Having due regard to that principle, it must be stated, in the circumstances of this case, that the action taken by the State <ORG>, in passing Ext. P-11, is clearly in accordance with the provisions of Rule 7.

44. Acceptance of the contentions of Mr. <NAME>, learned counsel for the petitioner, that under Rule 7, suspension can be effected only after charges have been framed will, in my opinion, lead to very anomalous results. For instance, there may be very serious allegations of misconduct against an officer, though he may belong to <ORG>; and the <ORG> may be investigating into that matter by way of collecting materials for ultimately conducting an enquiry against the officer. If no action can be taken as against the officer under these circumstances by way of suspension at that stage, the position would be that the <ORG> servant concerned will be continuing to hold office, notwithstanding such serious allegations of misconduct levelled as against him. It is to avoid such contingencies, that provision has been made to enable the <ORG> to place officers under suspension, when the nature of the allegations is fairly serious enough to warrant the taking of such an action.

45. There are two minor contentions raised on behalf of the State, namely, that the order plating the petitioner under suspension is a purely administrative act and, therefore, no interference should be made under Article 226 of the Constitution. The further contention is that under Rule 22 of the Rules, it is provided that if any question arises relating to the interpretation of the Rules, it shall be referred to <ORG> whose decision thereon shall be final. It is mentioned that inasmuch as the petitioner has raised a dispute regarding the construction of Rule 7, the Government have, after the filing of this original petition, addressed <ORG> to confirm that the understanding of the Rule, by <ORG> is correct.

46. But inasmuch as "both these aspects have not been pursued during the course of the arguments by the learned Advocate General, I do not think it necessary to express any opinion on those matters.

47. In the result, the writ petition fails and is dismissed. Parties will bear their own costs.