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2015 DIGILAW 678 (GAU)

RAM MILAN, GO-002092W v. UNION OF INDIA

2015-06-03

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : Heard Mrs R Borah, counsel for the petitioner and Mr. SC Keyal, Asstt. SGI for the respondents. By the present writ petition, the petitioner has challenged the impugned order dated 3.9.2013 whereby the earlier suspension order dated 5.4.2013 has been continued. Counsel for the petitioner at the outset has submitted that she is not pressing her other prayers and is pressing only the prayer with regard to the validity and legality of the extension of the petitioner’s suspension order dated 5.4.2013 by the subsequent impugned order dated 3.9.2013. The petitioner’s counsel submits that as per Sub-Rule (6) and (7) of Rule 10 of the CCS(CCA) Rules, 1965, there has to be a review of the suspension order prior to the expiry of 90 days from the date of the suspension order. She submits that in the present case, the petitioner was suspended on 5.4.2013 w.e.f. 20.3.2013. However, the suspension of the petitioner was continued for a further period of 180 days w.e.f 18.6.2013 to 14.12.2013. The relevant extract of the order dated 3.9.2013 is reproduced below: “2. WHEREAS, an order placing Shri Ram Milan, SE (Civ) (GO No. 2092W) under suspension w.e.f. 20.03.2013 was issued on behalf of the President vide BRDB Sectt. Order No. BDB/02(73)/2013-GE-II dated 5th April, 2013 until further orders. Shri Ram Milan, SE (Civ) was deemed to have been suspended due to his detention under the custody of CBI, Guwahati w.e.f 20.03.2013 for a period exceeding forty eight hours. The suspension period of 90 days expired on 17.06.2013 i.e. from the date of officer placed under suspension. 3. NOW, THEREFORE, the President in exercise of powers conferred by Sub-Rule 5(a) and 5(b) of Rule 10 of CCS (CCA) Rules, 1965 is pleased to continue the suspension of the said Shri Ram Milan, SE(Civ) for a further period of 180 days w.e.f. 18.06.2013 to 14.12.2013 since CBI inquiry is still under progress.”. Thereafter, the petitioner’s period of suspension was to have expired on 14.12.2013 and as per Rule 10 of the CCS (CCA) Rules, 1965 a review of the petitioner’s suspension was supposed to have been undertaken prior to expiry of 180 days of the suspension period. However, no review seems to have been taken place and instead the order dated 24.12.2013 has been issued continuing the petitioner’s suspension period from 15.12.2013 to 12.6.2014. However, no review seems to have been taken place and instead the order dated 24.12.2013 has been issued continuing the petitioner’s suspension period from 15.12.2013 to 12.6.2014. The relevant extract of the order dated 24.12.2013 is reproduced below: “2. WHEREAS, an order placing Shri Ram Milan, SE (Civ) (GO No. 2092W) under suspension w.e.f. 20.03.2013 was issued on behalf of the President vide BRDB Sectt. Order No. BDB/02(73)/2013-GE-II dated 5th April, 2013 until further orders. Shri Ram Milan, SE (Civ) was deemed to have been suspended due to his detention under the custody of CBI, Guwahati w.e.f 20.03.2013 for a period exceeding forty eight hours. The suspension period of 90 days expired on 17.06.2013 i.e. from the date of officer placed under suspension was further extended for a period of 180 days from 18.06.2013 to 14.12.2013. 3. NOW, THEREFORE, the President in exercise of powers conferred by Sub-Rule 5(a) and 5(b) of Rule 10 of CCS (CCA) Rules, 1965 is pleased to continue the suspension of the said Shri Ram Milan, SE(Civ) for a further period of 180 days w.e.f. 15.12.2013 to 12.06.2014 since CBI inquiry is still under progress.”. The petitioner's counsel, thus, submits that allegedly the first review of the petitioner's suspension order dated 05.04.2013 was done only on 03.09.2013, i.e., beyond the stipulated period of 90 days and the subsequent review, which was to have been done within 180 days, not having been done within 180 days as per the CCS (CCA) Rules, 1965, the suspension of the petitioner has to be set aside. The petitioner's counsel also submits that in the OM dated 07.01.2004 issued by the Government of India, Minister of Personnel, P.G. and Pension (Department of Personnel and Training), it has been stated as follows: “The undersigned is directed to say that Rule 10 (Suspension) of the CCS (CCA) Rules, 1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule shall be reviewed by the competent authority on recommendation of the Review Committee constituted for the purpose. It is also being provided in the Rules that an order of suspension made or deemed to have been under Sub-Rules (1) or (2) of Rule 10 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. It is also being provided in the Rules that an order of suspension made or deemed to have been under Sub-Rules (1) or (2) of Rule 10 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. It is further being provided that extension of suspension shall not be for a period exceeding 180 days at time. (Copy of the Notification is enclosed).”. Mr. SC Keyal, Asstt. SGI submits that as per his instructions and information, no review had taken place before continuing the petitioner’s suspension period. He also submits that the CBI inquiry against the petitioner which pertains to misappropriation of money has also resulted in filing of chargesheet in the CBI Court at Guwahati. However, the same has been stayed by this Court in Criminal Petition No. 341/2015. On a query made by this Court to Mr. SC Keyal, he submits that the chargesheet was filed only in the month of April, 2015 and the subject matter in hand relates to the year 2013. Sub-Rule (6) and (7) of Rule 10 of the CCS (CCA) Rules, 1965 reads as under: “(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 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 made 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-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. (7) 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. Provided that no such review of suspension shall be necessary in the case of deemed suspension under Sub-Rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later.” The Supreme Court in Union of India vs. Dipak Mali, reported in (2010) 2 SCC 222 , has held at Para 10 and 11 as follows: “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 Petitioner's case came up for review on 20th October, 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 was extended after review. 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 was 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 review, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension.”. From the judgment of the Supreme Court in Dipak Mali (supra) as quoted above, it is apparently clear that if review is not conducted within 90 days from the date of suspension, the subsequent suspension order becomes invalid. In the present case review was not held within the 90 days period as required and, accordingly, the subsequent suspension order dated 3.9.2013 is held to be invalid. This is further fortified by the Office Memorandum dated 7.1.2004 issued by the Govt. of India, Ministry of Personnel, P.G. & Pension (Department of Personnel & Training). The subsequent suspension order dated 24.12.2013 which extends the earlier suspension order is also bad in law, in as much as, it is in contravention of the Office Memorandum dated 7.1.2004; Sub-Rule (6) & (7) of Rule 10 of the CCS (CCA) Rules, 1965 and the decision of the Hon’ble Supreme Court in Dipak Mali (supra), as review for continuing the petitioner’s suspension was not done within the 180 days period. In view of the above, the suspension orders dated 3.9.2013 and 24.12.2013 are hereby set aside. Accordingly, the respondents shall reinstate the petitioner into service w.e.f 18.6.2013 within a period of one month from the date of receipt of a certified copy of this order. The respondents shall consider how to treat the period of suspension of the petitioner beyond 17.6.2013 till the date of his re-instatement as per law. The same shall be done within a period of two months from the date of receipt of a certified copy of this order. The writ petition accordingly stands disposed of. No cost.