Research › Search › Judgment

Manipur High Court · body

2014 DIGILAW 53 (MAN)

Th. Tombi Singh v. State of Manipur and Ors.

2014-04-25

L.K.MOHAPATRA

body2014
JUDGMENT petitioner in this writ application challenges continuance of order of suspension which had been passed on 06.01.2009 in Annexure A/2. 2. Facts and circumstances giving rise to this case are that the petitioner was initially appointed as a Warder on 03.03.1978 and was promoted to the post of Lance Naik Warder. Subsequently, he was again promoted to the post of Head Warder and was posted in Manipur Central Jail and got attached to Central Jail, Sajiwa. While serving as Head Warder, he was placed under suspension by an order dated 06.01.2009 in Annexure A/2 on allegation that he committed rape on the minor daughter of one Shri Dan Bahadur Thappa. It appears that the said Dhan Bahadur Thappa lodged a written report addressed to Officer-in-Charge of Heingang Police Station, Imphal East District, Manipur on 23.12.2008 at 8.25 p.m. alleging therein that the petitioner while working as Head Warder on attachment to Central Jail, Sajiwa raped his minor daughter namely Km. Santa Thappa at his residence taking advantage of the fact that he was giving tuition to the said minor girl. On the basis of the said report, a criminal case was registered against the petitioner for offence under section 376 of Indian Penal Code and he was also placed under suspension by the impugned order dated 6.01.2009. A departmental proceeding was initiated against the petitioner on the same charges. Present status of the departmental proceeding is that, enquiry has been completed and report has been submitted to the disciplinary authority. So far as the criminal case is concerned as reported by the learned G.A. appearing for the state respondents, trial is going on and case has now been fixed for examination of defence witnesses. 3. Mr. Tarunkumar, learned counsel appearing for the petitioner challenges the continuance of the order of suspension on the ground that order of suspension has been continued from 06.01.2009 till today in contravension of sub Rule (6) and (7) of the Rule 10 of CCS(CCA) Rules, 1965. With reference to the above provisions, it was contended by the Mr. 3. Mr. Tarunkumar, learned counsel appearing for the petitioner challenges the continuance of the order of suspension on the ground that order of suspension has been continued from 06.01.2009 till today in contravension of sub Rule (6) and (7) of the Rule 10 of CCS(CCA) Rules, 1965. With reference to the above provisions, it was contended by the Mr. Tarunkumar, learned counsel for the petitioner that an order of suspension has to be reviewed by the authority competent to modify and revoke the same before expiry of 90 days from the effective date of suspension and only on the recommendation of the Review Committee constituted for the purpose, order of suspension can be extended upto 180 days at a time. It was further contended that an order of suspension made under Sub Rule (1) & (2) of the Rule 10 of CCS(CCA) Rule, 1965 shall not remain valid after a period of 90 days unless it is extended after review for a further period of terms of the Sub Rule (6) of the Rule 10 of the CCS(CCA) Rules, 1965. Mr. Tarunkumar, learned counsel for the petitioner also submitted that admittedly before expiry of 90 days 3 from the effective date of suspension, no review has been done and in the absence of any recommendation of the Review Committee, period of suspension could not be extended beyond 90 days. Reliance was placed by the learned counsel on a decision of the Apex Court in the case of Union of India –Vs- Dipak Mali reported in (2010) 2 SCC 222 . 4. Ms. Ch. Sundari, learned G.A. appearing for the state respondents referred to the counter affidavit filed on behalf of the respondents and submitted that the petitioner has been placed under suspension for his involvement in a case of rape, trial of which is not yet complete and such suspension could be continued till conclusion of the Criminal Case. She also relied on the case of Allahabad Bank & anr. Vs- Deepak Kr. Bhola reported in (1997) 4 SCC 1 . 5. Undisputedly, on the basis of written report submitted by Dhan Bahadur Thappa on 23.12.2008 that his minor daughter was raped by the petitioner, a criminal case had been registered for commission of offence under section 376 IPC against the petitioner. Vs- Deepak Kr. Bhola reported in (1997) 4 SCC 1 . 5. Undisputedly, on the basis of written report submitted by Dhan Bahadur Thappa on 23.12.2008 that his minor daughter was raped by the petitioner, a criminal case had been registered for commission of offence under section 376 IPC against the petitioner. On the basis of the same allegation in contemplation of the departmental proceeding, petitioner was also placed under suspension on 06.01.2009. In the mean time, more than 5 years have passed. Neither departmental proceeding has been concluded nor the criminal case has been concluded. For continuance of the suspension order, it is contended in the counter affidavit that since the petitioner is currently facing a criminal case for commission of offence of rape of a minor girl, revocation of suspension is not desirable until the criminal case is concluded. There is no mention in counter affidavit about holding of review for extension of the order of suspension. Two relevant provisions such as Sub Rule (6) & (7) of the Rule 10 of CCS(CCA) Rules, 1965 are quoted below:- “((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 2(before expiry of ninety days from the effective date 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. (7) 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.” 6. It is clear from the Sub Rule (6) that an order of suspension made under the Rule shall be reviewed by the authority which is competent to modify or revoke the suspension order before expiry of 90 days from the effective date of suspension and only on recommendation of the Review Committee constituted for the purpose the order of suspension can be extended not exceeding 180 days at a time. Sub Rule (7) prescribes that order of suspension made under Sub Rule (1) of Rule 10 shall not be valid after a period of 90 days unless extended after review for a further period before expiry of 90 days from the effective date of suspension. This question came up for consideration before the Apex Court in the case of Union of India & ors. Vs- Dipak Mali (Supra) and para No. 10 and 11 of the judgment of Supreme Court made the following observations:- “10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the respondent and when the petitioners’ case came up for review on 20.10.2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of sub-rules (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days. 11. The case sought to be made out on behalf of the petitioner Union of India as to the cause of delay in reviewing the respondent’s case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. 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.” 7. 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.” 7. This judgment has been taken note of by the Apex Court in Civil Appeal No. 9454 of 2013 in the case of Union of India & Anr. Vs- Ashok Kumar Aggarwal disposed of on 22nd November, 2013. It has been clearly held by the Supreme Court in above cases that unless the order of suspension is extended on recommendation of the Review Committee before expiry of 90 days from the effective date of suspension, the order of suspension after 90 days becomes invalid. Facts in the case of Allahabad Bank & Anr -Vs- Deepak Kumar Bhola are different than that of the present case. In the said case, respondent therein was an employee of Allahabad Bank and CBI investigation was conducted on allegation of commission of forgery and wrongfully withdrawing money from the Bank. The said respondent had been placed under suspension about 10 years. The Apex Court did not interfere with the order of suspension observing that allowing such an employee of the bank will give him further scope to indulge in commission of same offence for which he was suspended. 8. I am, therefore, of the view that the facts in case of Allahabad Bank & Anr –Vs- Deepak Kumar Bhola (Supra) and the facts of the present case are distinguishable. Though I am of view that there has been contravention of Rule 10 of CCS (CCA) Rules, 1965 in continuing the order of suspension and the order of suspension became invalid after expiry of ninety days, no relief can be granted to the petitioner as he retired from service on attaining the age of superannuation. No direction for reinstatement at this stage is possible. 9. With the above observation, the writ application is disposed of.