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2006 DIGILAW 3015 (PNJ)

Union Of India v. Amresh Jain

2006-07-25

JAGDISH SINGH KHEHAR, KIRAN ANAND LALL

body2006
Judgment Kiran Anand Lall, J. 1. Petitioners have sought quashing of the order dated December 14, 2004 (Annexure P3) whereby the Central Administrative Tribunal (referred to as "the Tribunal"), partly allowed the Original Application of Amresh Jain, IRS (respondent No. 1), after declaring the orders dated May 12, 2004 and June 30, 2004, annexed as Annexure R2 and R3 thereto, as illegal and inoperative. The Tribunal held that the order of suspension "passed prior to Annexure R-2, had expired under the law on completion of 90 days from the date of passing of order passed in December, 2003". 2. As Amresh Jain was detained in custody in a criminal case on February 23, 2002 and remained so, for more than 48 hours, he was considered under deemed suspension, as per rule 10 (2) of the Central Civil Services (Classification, Control and Appeals) Rules, 1965 (for short "the Rules). On March 15, 2002, the competent authority passed order, Annexure A1, also, stating that he was deemed to have been suspended with effect from the date of detention i.e. February 23, 2002, in terms of sub-rule (2) of rule 10 of the Central Civil Services (Classification, Control and Appeals) Rules, 1965 and he would remain under suspension until further orders. This order of suspension was reviewed, from time to time viz. on September 13, 2002, in April 2003, and December 2003, and the period of suspension was extended. However, on January 3, 2004, a notification dated December 23, 2003 (Annexure A10 in OA) regarding amendment in the rules was published in the official gazette by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, and by virtue of this amendment, the following two sub-rules were added, after sub-rule (5) of rule 10 of the Rules:- "(6) An order of suspension made, or deemed to have been made, under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the date of order of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews made shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time. Subsequent reviews made shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time. (7) Notwithstanding anything contained in sub-rule 5 (a), an order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days." 3. After the said amendment in the rules, the order of suspension of respondent No. 1 was reviewed by the competent authority vide order dated May 12, 2004, and June 30, 2004, annexed as Annexures R2 and R3 with the OA, relevant parts whereof are being extracted hereunder :- Extract from Annexure R2. "AND WHEREAS a Review Committee has been set up in the light of amendment of Rule 10 of the CCS (CCA) Rules, 1965 to review the cases of suspension as and when due and to make recommendations regarding continuation or otherwise of the suspension of the officers. The review committee has considered the case of Sh.Amresh Jain and made their recommendations in this case on 1-4-2004. The investigations against him is not yet complete. AND WHEREAS the President being the competent authority has considered the recommendation of the Review Committee carefully and has decided to extend the suspension period of Sh.Amresh Jain, DC. NOW, THEREFORE, the suspension of Sh. Amresh Jain, DC is hereby extended for a further period of three months." Extract from Annexure R3. "AND WHEREAS a Review Committee has been set up in the light of amendment of Rule 10 of the CCS (CCA) Rules, 1965 to review the cases of suspension as and when due and to make recommendations regarding continuation or otherwise of the suspension of the officers. The review committee has considered the case of Sh.Amresh Jain and made their recommendations in this case on 1-4-2004. As the investigation against him was not yet complete, Sh.Jain after acceptance of the recommendation of the review committee by the competent authority, order dated 12-5-2004 was issued for continuation of suspension for a further period of three months. AND WHEREAS the review committee has again met on 23-6-2004 and recommended for continuation of the suspension of Sh.Jain as the investigation is still pending in his case. AND WHEREAS the review committee has again met on 23-6-2004 and recommended for continuation of the suspension of Sh.Jain as the investigation is still pending in his case. AND WHEREAS President being the competent authority has considered the recommendation of the Review Committee carefully and has decided to extend the suspension period of Sh.Amresh Jain, DC for 180 days. NOW, THEREFORE, the suspension of Sh.Amresh Jain, DC is hereby extended for a further period of 180 days." 4. The learned Tribunal declared the orders Annexures R2 and R3 as illegal and inoperative against the rights of respondent No. 1, holding that "order of his suspension, passed prior to Annexure R-2, had expired under the law on completion of 90 days from the date of passing of order passed in December, 2003". 5. Learned counsel for the parties addressed this court only on the point as to from which date the stipulated period of 90 days provided under sub-rules (6) and (7) of rule 10 of the Central Civil Services (Classification, Control and Appeals) Amendment Rules, 2003 (for short "the Amendment Rules") for reviewing the order of suspension was to be counted. According to the learned counsel for the petitioners, as per sub-paragraph 1 of the Amendment Rules, the amended rules were to come into force on the expiry of 90 days from the date of their publication in the official gazette. She pointed out that the notification regarding these rules was published in the gazette on January 3, 2004, but the date of enforcement of the Amendment Rules, as per this notification, was to be April 2, 2004. The suspension order, according to her, was, therefore, required to be reviewed within 90 days from April 3, 2004. Learned counsel further contended that since the competent authority had reviewed the order on May 12,2005, the needful had been surely done within the time stipulated (i.e. 90 days). The suspension order, according to her, was, therefore, required to be reviewed within 90 days from April 3, 2004. Learned counsel further contended that since the competent authority had reviewed the order on May 12,2005, the needful had been surely done within the time stipulated (i.e. 90 days). On the other hand, as per the learned counsel for respondent No. 1, sub-paragraph 2 of paragraph 1 of the Amendment Rules which had postponed the enforcement of the Amendment Rules by 90 days from the date of their publication in the official gazette, and sub-rule (7) (reproduced in para 2 above) of rule 10, inserted by the Amendment Rules were required to be read together, and a combined reading thereof shows that the period of 90 days was to be counted from the date of notification viz. December 23, 2003, and not from the said date of enforcement (April 2, 2004) of the Amendment rules. 6. But, the above controversy, we are of the view, would lose its significance if we refer to a subsequent notification of the Government of India in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) dated April 2, 2004 (G.S.R. 249 E dated April 2, 2004) annexed as Annexure R5 in the OA file. Vide this notification, in partial modification of sub-paragraph (2) of paragraph (1) of the earlier notification dated December 23, 2003 (published in the gazette on January 3, 2004), the date of enforcement of the Amendment rules was postponed to June 2, 2004. For the sake of convenience, the subject matter of this notification is being reproduced as under :- "In exercise of the powers conferred by the proviso to article 309 of the Constitution, in partial modification of sub-paragraph (2) of paragraph 1 of the notification of Government of India in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) dated 23rd December, 2003 [(G.S.R. 2 dated 3rd January, 2004 published in the Gazette of India in Part II, Section 3, Sub-section (i)] the President hereby directs that said notification shall come into force on 2nd June, 2004." 7. In other words, by virtue of the said (later) notification, the old rules continued to remain in force till June 1, 2004, and as such, the point in controversy is required to be appreciated in the light of the old rules, and not as per the amended rules. Under the old rules (unamended rules), it may be stated, there was no time frame within which an order of suspension was required to be reviewed or modified. Sub-rule (5) (a) of rule 10 of those rules, infact, provided that an order of suspension made or deemed to have been made under rule 10 of the Rules shall continue to remain in force until it was modified or revoked by the authorities competent to do so. That being so, the question as to at what intervals, the suspension order of respondent No. 1 had been reviewed prior to the coming into force of the Amendment Rules, was not required to be gone into. In this view of the matter, the finding of the Tribunal that the orders contained in Annexures R2 and R3 are "illegal and inoperative against the rights of the applicant, as order of his suspension, passed prior to Annexure R-2, had expired under the law on completion of 90 days from the date of passing of order passed in December, 2003", is clearly wrong. Prior to the coming into force of the Amendment Rules, the suspension order was last reviewed on May 12,2004, and after the coming into force of the Amendment Rules, it was last reviewed on June 30, 2004. As such, it is clear that it had been reviewed within a period, much less than the stipulated period of 90 days from the date the Amendment Rules came into force. Unfortunately,the Tribunal had, somehow, omitted to take note of the said notification dated April 2, 2004, which was produced as Annexure R5 on the OA file. And as a consequence, the entire complexion of the matter changed and the Tribunal came to a patently wrong conclusion. 8. In the light of above discussed position, the impugned order of the Tribunal is set aside and the orders dated May 12, 2004 and June 30, 2004, are held valid. The petition is, resultantly, allowed, leaving parties to bear their own costs.