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2013 DIGILAW 264 (JK)

Vijay Kumar v. Union Of India

2013-05-01

MOHAMMAD YAQOOB MIR

body2013
1. Petitioner, an employee of the Defence Estates Organization, was working as SDO-I in the said Organization in its office at Rajouri. Disciplinary proceedings were pending against him pertaining to the date of the occupation of land measuring round about 921 kanals 15 marlas by Vector Force at Awantipura. Furthermore, disciplinary proceedings were also contemplated against him in connection with: Issuance of NOC regarding defence land at Srinagar. 2. The petitioner, vide order No. 15/ 226 / ADM /DE/ NC/Conf/2 dated 3rd of October, 2011, was placed under suspension. 3. The requirement of Rule 10 Sub-rule 6 of Central Civil Services (Classification, Control and Appeal) Rules hereinafter referred to as `CCS Rules' is that for extending the period of suspension, the order of suspension has to be reviewed before its expiry by the competent authority on the recommendation of the Review Committee. 4. Initial period of suspension expired on 31.12.2011 but before its expiry, the Review Committee recommended the extension, as a result thereof, vide order No. 15/226/ADM/DE/NC/Conf/2 dated 20.12.2011, the period of suspension was extended for a further period of 180 days with effect from 1st January, 2012 which expired on June 28, 2012. On 3rd of August, 2012, on the basis of the recommendations of the Review Committee, period of suspension was extended for a further period of 180 days with retrospective effect, i.e., from 29th June, 2012. 5. During the course of arguments, it was particularly projected by learned counsel for the petitioner that the extension vide order dated 3rd of August, 2012 with retrospective effect will not validate the order of suspension which became invalid with effect from 29th June, 2012. In support of this contention, learned counsel for the petitioner relied upon the judgment rendered by the Hon'ble Apex Court in case Union of India and ors. v. Dipak Mali, reported as (2010) 2 SCC 222 . 6. Learned counsel for the respondents, Mr. Jamwal highlighted that before the expiry of initial 90 days of suspension, case has to be reviewed by the Review Committee, based on such review, extension is to be granted. In the instant case, before the expiry of 90 days, the Review Committee, on reviewing the case of the petitioner, recommended extension and vide order dated 30.12.2012 period of suspension was extended for a further period of 180 days with effect from 1st January, 2012. In short, according to Mr. In the instant case, before the expiry of 90 days, the Review Committee, on reviewing the case of the petitioner, recommended extension and vide order dated 30.12.2012 period of suspension was extended for a further period of 180 days with effect from 1st January, 2012. In short, according to Mr. Jamwal, subsequent extensions in suspension period is permissible even after expiry of the earlier period. 7. On thoughtful consideration of the submissions, contention of learned counsel for the petitioner has substance, as such prevails. 8. Part-IV of CCS Rules pertains to suspension. Rule 10 Sub-Rule (5) provides that when an order of suspension is made or deemed to have been made under rules, same shall continue to remain in force until it is modified or revoked by the competent authority. It further provides that the competent authority has the power to direct, for reasons to be recorded in writing that suspension shall continue until the termination of all or any of such proceedings. Sub-Rules 6 & 7 of Rule 10 controls operation of Sub-rule 5, which, for facility of reference, are quoted herein:- "6. An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is 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 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. (emphasis supplied) 7. Notwithstanding anything contained in sub-rule (5) (a), an order of suspension made or deemed to have been made under sub-rule (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." (emphasis supplied) 9. Sub-rule 6 provides that the order of suspension shall be reviewed by the competent authority before expiry of 90 days from the date of order of suspension on the recommendation of the Review Committee constituted for the purpose. It further provides that subsequent reviews shall be made before expiry of extended period of suspension. Sub-rule 6 provides that the order of suspension shall be reviewed by the competent authority before expiry of 90 days from the date of order of suspension on the recommendation of the Review Committee constituted for the purpose. It further provides that subsequent reviews shall be made before expiry of extended period of suspension. Extension of suspension period shall not be for a period exceeding 180 days at a time. 10. Sub-rule 7 provides that notwithstanding Sub-rule 5 (a) the order of suspension shall not be valid after a period of 90 days unless it is extended after review for further period before the expiry of 90 days. 11. It is in this backdrop of sub-rule, 7, Mr. Jamwal tried to project that review of the suspension is necessary only before the expiry of initial 90 days of suspension. 12. Conjoint and harmonious reading of Sub-rules 5, 6 and 7 would suggest that the period of suspension is not permissible to be indefinite, it is required to be reviewed from time to time but before the expiry of its period. The words employed in Sub-rule 6, `subsequent reviews shall be made before expiry of the extended period of suspension' would clearly mandate that before the expiry of the extended period of suspension, the suspension order has to be reviewed. The word `shall' is mandatory and compliance thereof has no substitute. To constitute the Review Committee for the purpose of reviewing the suspension order subsequent to the expiry of the period of suspension and then the recommendation of the Review Committee after a particular gap to extend the period of suspension runs contrary to the mandate of the Rule. Based on such recommendation, extension with retrospective effect is impermissible. The effect of invalidation of the order of suspension operates immediately after its expiry. In this connection, it shall quite relevant to quote the following portion from Para 11 of the judgment Union of India and ors. v. Dipak Mali ( (2010) 2 SCC 222 ). ".......Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension." 13. In the reported judgment, admittedly, before expiry of 90 days, order of suspension was not reviewed, so after 90 days it had become invalid. ".......Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension." 13. In the reported judgment, admittedly, before expiry of 90 days, order of suspension was not reviewed, so after 90 days it had become invalid. Subsequent reviews and extensions could not revive the order which had already become invalid. The principle, as has been laid down, has to be followed in the subsequent reviews, as is ordained by Sub-rule 6. 14. In the instant case, the admitted position is that the period of suspension extended vide order dated 30th December, 2011 for a period of 180 days with effect from 1st January, 2012 expired on 28th June, 2012. Until 3rd of August, 2012, no order for extension has been passed. When it is so, the period of suspension expired on 28th June, 2012. The order of suspension was not reviewed before 28th June, 2012 but has been reviewed after the order had become invalid, i.e., vide order impugned dated 3rd August, 2012, the period of suspension has been extended with effect from 29th June, 2012, but such action, in view of the law laid down by the Hon'ble Apex Court, as quoted above, will not validate order of suspension. 15. Extension of order of suspension retrospectively in terms of order impugned dated 3rd August, 2012 is unsustainable, as such quashed. 16. Mr. Jamwal, during the course of arguments, also highlighted that the order for extension of suspension is dated 3rd August, 2012, writ petition has been filed on 29th August, 2012, the affidavit annexed with the writ petition is shown to have been executed on 16th July, 2012. It is in this context, CMA No. 1282/2013 has been filed by the petitioner wherein position has been clarified. 17. Learned counsel for the petitioner made it clear that basically when the earlier order of suspension was passed and then extended vide order dated 30th December, 2012, the petitioner had consulted him for challenging the said order. The writ petition was prepared. When it was noticed that the period of suspension has not been extended beyond 29th June, 2012, the writ petition was not filed. The writ petition was prepared. When it was noticed that the period of suspension has not been extended beyond 29th June, 2012, the writ petition was not filed. Subsequently on 3rd August, 2012, order extending the period of extension retrospectively was passed, same writ petition with inclusion of certain paras and prayer seeking quashment of the said order dated 3rd August, 2012 was framed for filing but in the process, the affidavit due to the negligence and misunderstanding of his Assistant (Clerk) has remained to be replaced which is an inadvertent error so with abundant caution, fresh affidavit in support of the petition has been annexed with the CMA, same be taken on records. 18. In the totality of the circumstances, order dated 3rd October, 2011 whereunder the petitioner has been placed under suspension and order dated 30th December, 2011, in pursuance whereof, the period of suspension was extended with effect from 1st January, 2012 have lost their utility on their expiry. Order dated 3rd August, 2012, for the reasons detailed hereinabove shall stand quashed. 19. Petition accordingly succeeds. 20. Quashing of suspension is not to have any adverse impact on the disciplinary proceedings pending against the petitioner.