Holding

A suspension order is valid even if it does not expressly recite the Governor’s satisfaction; the burden lies on the challenger to prove the condition was not fulfilled.

Summary

Hari Ram Yadav, an IFS officer of the Haryana cadre, was suspended during pending disciplinary proceedings. He challenged the suspension order before the Central Administrative Tribunal, arguing that the order did not state that the Governor of Haryana was satisfied that suspension was necessary or desirable, as required by Rule 3(1) of the All India Services (Discipline and Appeal) Rules, 1969. The Tribunal quashed the order on that ground. On appeal, the Supreme Court held that the absence of such a recital does not render the order invalid; the condition of the Governor’s satisfaction is presumed fulfilled unless the challenger proves otherwise. The Court placed the burden of proof on the challenger and noted that the petition did not expressly contest the Governor’s satisfaction. Consequently, the Tribunal’s order was set aside and the appeal allowed.

Issues considered

Whether a suspension order under Rule 3(1) of the All India Services (Discipline and Appeal) Rules, 1969 is invalid for not containing a recital that the Governor is satisfied that suspension is necessary or desirable.
Who bears the burden of proof when the condition precedent to a statutory power is not recited in the order.
Whether the petitioner's challenge is maintainable without an explicit averment that the Governor’s satisfaction was lacking.

Legislation cited

Administrative Tribunals Act, 1985s. Section 19
All India Services (Discipline and Appeal) Rules, 1969s. Rule 3(1)

Subjects

suspensiondisciplinary proceedingsAll India Services Rulesburden of proofpresumption of regularityadministrative tribunalorder validity

Judgment

A STATE OF HARYANA
v.
HARi RAM YADAV AND ORS.

JANUARY 19, 1994

B [AM. AHMADI, K. RAMASWAMY AND S.C. AGRAWAL, JJ.)

All India Services (Discipline and Appeal) Rules 1969: Rule 3:

Suspension-Order passed without recital as to the satisfaction of
C competent authority-Validity of

Respondent-1, a member of the lnt11 itn Forest Service belonging to
Haryana State Cadre, was suspended during the pendency of «!_isciplinary
proceedings initiated against him. He assailed the validity of the suspen-
sion order contending, inter-alia that it was passed without satisfying the
D requirement of rule 3(1) of the All India Service (Discipline and Appeal)
Rules, 1969. The Central Administrative Tribunal, Chandigarh Bench
quashed the suspension order on the graund that it does not contain a
recital to the effect that the Governor of Haryana was satisfied that it was
either necessary or desirable to place the respondent. under suspension.
E Against the order of Tribunal State preferred an appeal before this Court.

Allowing the appeat.~setting aside the order of the Tribunal, this
Court

HELD : 1. The mere fact that the impugBed order of suspension does
F not contain a recital that the Governor was satisfied that it is either
necessary or desirable to place the respondent under suspension does not
render the said order invalid. [173-D]

2. In cases where the exercise of statutory power is subject to the
G fulfilment of a condition then the ~cital about the said condition having
been fulfilled in the order raises a presumption about the fulfilment of the
said condition, and the burden is on th~,person who challenges the validity
of the order to show that the said condition was not fulfilled. In a case,
where the order does not contain a recital about the condition being /-
fulfilled, the burden to prove that the condition was fulfilled would be on
H the authority passing the order if the validity of the order is challenged on
168
STATEOFHARYANA'v. H.R. YADAV[AGRAWAL,J.] 169

the ground that the said condition is not fulfilled. [173-E-F] A
The Swadeshi Cotton Mills Co. Ltd. v. The State of U.P. and Ors.,
[1962) 1 S.C.R. 422, referred to.

3. In his petition before the tribunal the respondent has concentrated
his attack on the allegations levelled against him. There is no averment in B
the said petition that the Governor of Haryana was not satisfied that it was
either necessary or desirable to place the respondent under suspension.• In
the absence of any such averment it must be held that the impugned order
was passed after fulfilling the requirement of rule 3(1) in view of the
presumption as to the regularity of official acts which would be applicable C
and the absence of a recital in the order about the Governor being satisfied
that it was either necessary or desirable to place the respondent under
suspension is of no consequence. The tribunal was, therefore, in error in
invalidating the impugned order of suspension. [174-G-H, 175-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1247 of D
1993.

From. the Judgment and Order dated 12.10.1992 of the Central
Administrative Tribunal, Chandigarh in O.A. No. 1573/CH/91.

Ms. Nisha Bagchi for Ms. Indu Malhotra for the Appellant. E

P.P. Rao and R.K. Gupta for Manoj Swarup for the Respondents.

The Judgment of the Court was delivered by

- 1. S.C. AGRAWAL, J. This appeal is directed against the order
dated October 12, 1992 passed by the Central Administrative Tribunal,
Chandigarh Bench (hereinafter referred to as 'the tribunal'). The question
that arises for consideration is whether the order dated November 25, 1991,
whereby Hari Ram Yadav, respondent no.l, was placed under suspension
F

during the pendency of disciplinary proceeding initiated against him, has G
been passed in accordance with the provisions of rule 3(1) of the All India
Services (Discipline and Appeal) Rules, 1969 (hereinafter referred to as
'the Rules').

L. Respondent no.1 is a member of the Indian Forest Service and
belongs to Haryana State cadre of the said service. Disciplinary proceed- H
170 SUPREME COURT REPORTS {1994) 1 S.C.R. ·

A ings were initiated against him on the basis of charge-sheet dated April 29,
1990. During the pendency of the said disciplinary proceedings another
charge-sheet dated November 25, 1991 was issued. On the same day, i.e.,
November 25, 1991, an order was passed whereby respondent no.1 was
placed under suspension. Respondent no.1 filed a petition (QA.No.
1573/CH/91] under Section 19 of the Administrative Tribunals Act, 1985
B which has been all~wed by the tribunal by order dated October 12, 1992,
and the said order of suspension has been quashed.

3. The impugned order of suspension reads as under :
>- --
c "In accordance with rule 3(1) of All India Services (Dis-
cipline & Appeal) Rules, 1969 (for short the 'Rules')
suspension of an officer can be ordered against whom
disciplinary proceedings are pendirig or contemplated.
The Governor of Haryana is pleased to suspend Shri Hari
Ram Yadav, IFS, Deputf Conservator of Forests now
D appoirited as Forest Expert iri the Rural Development
Department, Haryana with immediate effect for the fol-
lowing:

(i) Misuse of funds under the "Million Wells Scheme" in
which it has been prim a f acie established that Shri Hari
E
Ram, IFS while he was posted as Divisional Forest Officer,
Morni at Pinjore, Distt. Ambala had taken up the execu-
tion of this scheme without the approval of the Govt. arid
did not receive Govt; approval for spending Rs.50,00,000
received as financial assistance from the Development
F Department. There has been misappropriation of funds
and labour has not been paid the wages. A departmental
enquiry has been ordered.

(ii) A charge-sheet has been issued under rule 8 of the
All India Services (Punishment and Appeal) Rules, 1969
G for committing irregularities while posted at Kurukshetra
as Deputy Conservator of Forests.

(iii) He has been chargesheeted under rule 10 of the .All
India Services (Punishment & Appeal) Rules, 1969 ·for
H unauthorised purchase of VCR/TV and its mis-use".
STATEOFHARYANA v. H.R.YADAV[AGRAWAL,J.] 171

4. Rule 3(1) of the Rules is in the following terms : A
./ ''PART-II-SUSPENSION-

3. Suspension - (1) If, having regard to the circumstances
in any case and, where articles of charge have been drawn
up, the nature of the charges, the Government of a State B
or the Central Government, as the case may be, is satisfied
that it is necessary or desirable to place under suspension
a member of the Service, against whom disciplinary
-<. proceedings are contemplated or are pending, that
Government may-
c
(a) if the member of the Service is serving under that
Government, pass an order placing him under suspension,
.or

(b) if the member of the Service is serving under another D
Govermnent request that Government to place him under·
~- suspension,

pending the conclusion of the disciplinary proceedings
and the passing of the final order in the case.
E
Provided that, in cases, where there is a difference of
opinion,-

(i) between two State Governments, the matter shall be
referred to the Central Government for its decision;
F
(ii) between a State Government and the Central Govern-
ment, the opinion of the CentralGovernment shall prevail:

Provided further that, where a State Government pas-
ses an order placing under suspension a member of the
Service against whom disciplinary proceedings are con- G
templated, such an order shall not be valid unless, before
the expiry of a period of forty-five days from the date from
--<. which the member is placed under suspension, or such
'
further period not exceeding forty-five days as may be
specified by the Central Government for reasons to be H
{
172 SUPREME COURT REPORTS [1994] 1 S.C.R.

A recorded in writing, either disciplinary proceedings are
initiated against him or the· order of suspension is con-
firmed by the Central Government".

5. Before the tribunal, respondent no.1 assailed the order of suspen-
sion on three grounds, namely :
B
(i) it was vitiated by malafides since it was passed at the
instance of respondent no.3;

(ii) it was passed without satisfying the requirements of rule
3(1);
c
(iii) it was passed by abusing the power vested under rule 3(1)
of the Rules.

6. The tribunal has rejected the first contention urged by respondent
D no.l and has held that the allegation of malafides do not stand substan-
tiated. The second contention.urged by respondent no.1 has, however, been
accepted by the tribunal and, in view of the acceptance of the said conten-
tion, the tribunal did not consider necessary to deal with the third conten-
tion.

E 7. Dealing with the second co~te,ntion, the tribunal has observed that
under. rule 3(1) an order of suspension of a member of the All India
Services can be made only if the following ingredients are satisfied :

'(i) That the disciplinary proceedings are· either con-
templated or are pending; and
F
(ii) The Central Government or the State Government, as
the case may be, is satisfied that it is necessary or
desirable to place under suspension a member of the
service.
G 8. From the order of the tribunal it appears that the learned counsel
for respondent no.1 has CO!lceded that ingredient No.(i) stands satisfied in
this case. The tribunal has found that the second ingredient was not
satisfied because the impugned order of suspension nowhere says that the ,)---
Governor of Haryana was satisfied that it was either necessary or desirable
H to place respondent no.l under suspension. The tribunal, in this context,
STATEOFHARYANA v. H.R. YADAV(AGRAWAL,J.] 173

has observed : A
"A perusal of the impugned order goes to show that it
nowhere says that Governor of Haryana was ·satisfied that
it was either necessary or desirable to place the applicant
under suspension. The impugned order Annexure All is,
thus, laconic and cannot be sustained for the aforesaid B
lacuna. Consequently, we find that the impugned order is
liable to be quashed".

9. It would thus appear that the only ground on which the tribunal
has quashed the impugned order of suspension is that it does not contain C
a recital to the effect that the Governor of Haryana was satisfied that it is
either necessary or desirable to place respondent no.l under suspension.

10. We find it difficult to agree with the said view of the tribunal.
The mere fact that the impugned order of suspension does not contain a
recital that the Governor was satisfied that it is either necessary or D
desirable to place respondent no.1 under suspension does not, in our
opinion, render the said order invalid. The law is well settled that in cases
where the exercise of statutory power is subject to the fulfilment of a
condition then the recital about the said condition having been fulfilled in
the order raises a presumption about the fulfilment of the said condition, E
and the burden is on the person who challenges the validity of the order
to show that the said condition was not fulfilled. In a case, where the order
does not contain a recital about the condition being fulfilled, the burden
to prove that the condition was fulfilled would be on the authority pasing
the order if the validity of the order is challenged on the ground that the
said condition is not fulfilled. Reference, in this context, may be made to F
the decision of this Court ;n The Swadeshi Cotton Mills Co. Limited v. The
State of U.P. and Ors., (1962) 1 S.C.R. 422, wherein it has been observed :

"The validity of the order therefore does not depend upon
the recital of the formation of the opinion in the order but
upon the actual formation of the opinion and the making G
of the order in consequence. It would therefore follow that
if by inadvertence or otherwise the recital of the formation
of the opinion is not mentioned in the preamble to the
order the defect can be remedied by showing by other
evidence in proceedings where challenge is made to the H
--f
\.

174 SUPREME COURT REPORTS [1994) 1 S.C.R.
_.(__ ·-
A validity of the order, that in fact the order was made after
such opinion had been formed and was thus a valid
exercise of the power conferred by the law. The only
exception to this course would be .where the statute re-
quires that there should be a .recital in the order itself
before it can be validly made". (p.432)
B
"We cannot accept the extreme argument of Shii Aggar-
wala that the mere fact that the order has been passed is
sufficient to raise the presumption that conditions prece-
dent have been satisfied, even though there is no recital
c in the order to that effect. Such a presumption in our
opinion can only be raised when there is a recital in the
order to that effect. In the absence of such recital if the
order is challenged on the ground that in fact there was
no satisfaction, the authority passing the order will have
to satisfy the court by other means that the conditions
D -(
precedent were satisfied before the order was passed. we
are equally not impresse!d by Shri Pathak's argument that
if the recital in not there, the public or courts and tribunals
will not know that the order was validly passed and there-
fore it is necessary that there must be a recital on the face
E of the order in such a case before it can be held to be
legal. The presumption as to the regularity of public acts
would apply in such a case; but as soon as the order is
challenged and it is said that it was passed without the
conditions precedent being satisfied the burden would be
on the authority to satisfy by other means (in the absence
F
of recital in the order itself) that the conditions precedent
had been complied with". (p.434)

11. We have gone through the petition filed by respondent no.l
before the tribunal which is on record as Annexure-R-6/A to the Affidavit-
G in-opposition of respondent no.l. In the said petition, respondent no.1 has
concenkated. his attack on the allegations/charges !evelled against him. >-
There is no averment in the said petition challenging the validity of the
impugned order of suspension on the ground that the Governor of Haryana
was not satisfied that it was either necessary or desirable to place respon-
H dent no.1 under suspension. In the absence of any such averment it must
STATEOFHARYANA v. H.R. YADAV[AGRAWAL,J.] 175

be held that the impugned order was passed after fulfilling the requirement A
of rule 3(1) of the Rules in view of the presumption as to the regularity of
official acts which would be applicable and the absence of a recital in the
order about the Governor being satisfied that it was either necessary or
desirable to place respondent no.1 under suspension is of no consequence.
The tribunal was, therefore, in error in invalidating the impugned order of
suspension only on the ground that it did not contain a recital to the effect B
that Governor of Haryana was satisfied that it is either necessary or
desirable to place respondent no.1 under suspension. The learned counsel
for respondent no.1 has not shown any other infirmity in the order of
suspension.

12. The appeal is, therefore, allowed and the order dated October
c
12, 1992 passed by the tribunal in O.A.No.1573/CH/91 is set aside and the
said petition is dismissed. No. order as to costs.

T.N.A. Appeal allowed.