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2018 DIGILAW 1757 (GAU)

Sudipto Sarkar v. Union of India

2018-12-18

N.KOTISWAR SINGH

body2018
ORDER : N. Kotiswar Singh, J. 1. Heard Ms. B. Bhuyan, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned ASGI appearing for the Union respondents. 2. Considering the nature of the case, the matter has been taken up and proposed to be disposed of at this stage. Mr. S.C. Keyal, learned ASGI, on receiving necessary instructions in this regard has made his submission before this Court. 3. Brief facts of the case as may be relevant are stated hereinbelow. 4. The petitioner is presently serving as an Assistant Professor in the Assam University having been appointed in the year 2006. According to the petitioner, after having served in the aforesaid capacity, he has been made the Head of the Department in the year 2016. However, unfortunately, because of certain false complaint filed against him about certain sexual harassment, the matter was referred to the Internal Complaints Committee (ICC), Assam University, Silchar and thereafter, by order dated 27.07.2018, the petitioner was relieved from the charge of Head of Department and he has been also placed under suspension w.e.f. 30.07.2018 on the basis an interim finding by the ICC. The aforesaid order of suspension reads as follows: "Order Whereas complaints under Rule 3C of CCS (CCA) Rule 1965 against Dr. Sudipto Sarkar, Associate Professor, Deptt. Of Agricultural Engineer, Assam University, Silchar is pending; and whereby Internal Complaints Committee has submitted its interim report where a prima facie case has been established against Dr. Sudipto Sarkar, the Competent Authority of the University; therefore, in exercise of powers conferred by Rule 10(1) of CCS (CCA) Rule 1965, hereby places said Dr. Sudipto Sarkar under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force, Dr. Sudipto Sarkar shall not leave the headquarter without obtaining the prior permission of the Competent Authority." 5. Thus, the petitioner was placed under suspension vide above mentioned order dated 30.07.2018. It is seen that the petitioner was placed under suspension after an interim report was submitted by the Internal Complaint Committee stating that a prima-facie case has been established against the petitioner. 6. The petitioner has challenged the continuation of the aforesaid suspension order as well as the earlier order dated 27.07.2018. By the earlier order the petitioner has been relieved from the responsibility of the Head of the Department. 6. The petitioner has challenged the continuation of the aforesaid suspension order as well as the earlier order dated 27.07.2018. By the earlier order the petitioner has been relieved from the responsibility of the Head of the Department. The petitioner however submits that he is not pressing to challenge to this and he may be permitted to challenge the same before the appropriate forum. 7. This Court will first deal with the issue raised by the petitioner about the continuation of the aforesaid suspension order issued on 30.07.2018, which according to the petitioner, is not permissible as no review was undertaken by the competent authority for continuation of the said suspension order as contemplated under Rule 10(6) of the CCS (CCA) Rule, 1965 hereinafter referred to as the "Rules". As regards the applicability of the aforesaid Rule, there is no dispute about it. Rule 10(6) of the CCA-CCA Rule 1965 reads as follows: "10(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 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 be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period of exceeding one hundred and eighty days at a time." 8. The aforesaid Rule 10(6) provides that the order of suspension shall be reviewed by the authority, which is competent to modify or revoke the suspension order before the expiry of 90 (ninety) days from the effective date of suspension. 9. It may be noted that the requirement of holding review before the expiry of 90 (ninety) days has been brought into existence by an amendment to the Rules vide Notification dated 16.01.2007. Prior to that there was no time period stipulated under the sub-Rule 6 for holding the review. 9. It may be noted that the requirement of holding review before the expiry of 90 (ninety) days has been brought into existence by an amendment to the Rules vide Notification dated 16.01.2007. Prior to that there was no time period stipulated under the sub-Rule 6 for holding the review. Consequent upon the aforesaid requirement to hold the review, sub-Rule 7 has also been inserted, which provides that an order of suspension made under sub-Rule 1 or 2 of Rule 10 shall not be valid after a period of 90 (ninety) days unless it is extended after review, for a further period before expiry of 90 (ninety) days. 10. Learned counsel for the petitioner submits that for continuation of suspension, review of the suspension order within 90 (ninety) days of the date of the effect of the suspension order is a mandatory requirement which cannot be glossed over by the authorities failing which, any such suspension order shall be rendered invalid beyond 90 days. 11. According to the learned counsel for the petitioner, since the suspension order is effective from 30.07.2018, a review for continuing the said suspension order ought to have been made before expiry of the 90 (ninety) days i.e. 28.10.2018. However, the review of suspension order was held on 4.12.2018, which is beyond on the statutory period of 90 days, that too, after filing of the writ petition, and hence, the aforesaid review order issued on 04.12.2012 cannot validate the continuation of the suspension order beyond 90 days. 12. The aforesaid contention of the petitioner, however, has been resisted by the learned ASGI appearing for the Union respondents on the ground that the aforesaid requirement of reviewing the suspension order within 90 days is not mandatory in nature and it is merely directory and as such, mere failure on the part of the Disciplinary Authority or the Competent Authority to review the suspension order within 90 days is not fatal and if for bona fide reasons, the review could not be undertaken, it cannot automatically lead to nullification of the suspension order. 13. Learned ASGI further submits that in the present case, the authorities undertook the exercise to review the suspension order by convening a meeting of the Executive Council of the University, which is the authority competent to review the suspension order on 30.10.2018 which was within the aforesaid 90 days. 13. Learned ASGI further submits that in the present case, the authorities undertook the exercise to review the suspension order by convening a meeting of the Executive Council of the University, which is the authority competent to review the suspension order on 30.10.2018 which was within the aforesaid 90 days. However, because of lack of quorum of the Executive Council, no decision could be arrived at for reviewing the suspension order. Since convening of the meeting of the Executive Council requires giving minimum period of notice, it was convened on 4.12.2018 and the Executive Council ultimately decided to continue the suspension order by reviewing the suspension order. 14. Learned ASGI also further submits that the charges levelled against the petitioner is very serious in nature involving moral turpitude against him. There has been a prima-facie finding arrived at by the Internal Complaints Committee (ICC) against the petitioner and as such, the continuation of suspension order may not be interfered by this Court. It has been submitted that revoking the suspension order and reinstating the petitioner against whom there has been prima-facie finding of guilt by the Internal Complaints Committee (ICC) would send a wrong signal. 15. Heard the learned counsel for the parties and also considered the materials on record. 16. As far as the issue of suspension is concerned, it is now well settled that a suspension can be of 2 (two) kinds, first, by way of a penalty and second, as a part of the process for holding the departmental enquiry or as consequence of arrest beyond 48 hours. We are not concerned with the issue as to whether suspension is a penalty or not. There is no issue about the fact that suspension is not considered to be a penalty under the CCS (CCA) Rules though it may be a penalty under other Service Rules, like the Army Rules or Central Police Force Rules, 1949, Border Security Force Rules, 1968 etc. Under CCS (CCA) Rules, suspension is only a method/procedure adopted by the competent authority for holding a departmental enquiry or during the pendency of any criminal proceedings or when a person is arrested beyond 48 hrs. It is not considered to be penalty in any manner whatsoever, under the CCS (CCA) Rules. 17. Under CCS (CCA) Rules, suspension is only a method/procedure adopted by the competent authority for holding a departmental enquiry or during the pendency of any criminal proceedings or when a person is arrested beyond 48 hrs. It is not considered to be penalty in any manner whatsoever, under the CCS (CCA) Rules. 17. However, the fact remains that placing a person under suspension also carries certain attributes, which is common to an order of suspension issued by way of penalty, as in the case of Army Rules, Border Security Forces Act, 1968 Central Reserve Police Forces Act, 1949 etc. Obviously when a person is suspended under CCS(CCA) Rules, he is prevented from discharging his normal duties as in the case of suspension as a penalty under the aforesaid Acts. 18. Therefore, even if suspension under CCS (CCA) Rules is not considered a penalty under the said Rules, it also has certain attributes of negativity or stigma attached to it. The rule making authorities, considering this stigmatic aspect has made provisions to ensure that the suspension is not prolonged beyond certain reasonable time. There may be situations where a departmental enquiry or a criminal proceeding initiated against incumbent may not be concluded within a short period of time, which may necessitate placing a person under suspension for a longer period. Thus, the rule making authorities have placed a cap on the length of the period of suspension by inserting sub-rule (6) and (7) to Rule 10 of CCS (CCA) Rules. 19. The whole concept of placing a person under suspension is to prevent the employee from interfering with the process of the enquiry or the investigation to prevent influencing witnesses etc. This purpose of placing a person under suspension is sought to be curtailed by the authorities by making amendments to sub-Rules 6 and 7 of Rule 10 which require that a suspension ought not be continued more than 90 days in ordinary course, and if the suspension is required to be continued more than 90 days, the competent authority must apply its mind on the requirement of continuation which ought to be done within a period of 90 days, by reviewing the suspension order. The amendment inserted under sub-Rule 7 itself indicates that it is not desirable to place a person under suspension beyond 90 days as Rule 7 provides that an order of suspension shall not be valid after a period of 90 days, unless it is extended after review. 20. Reading of sub-Rules 6 and 7 together would, therefore, indicate that though suspension may be continued beyond 90 days, it should be continued only after a review has been done before completion of 90 days by the authority as otherwise, such suspension order shall become invalid. To that extent, this Court holds that the aforesaid Rules sub-Rule 6 and 7 have to be scrupulously followed by the disciplinary authority, failing which, it may vitiate the suspension order. However, as to the effect that will have on the failure to review the suspension order within 90 days would depend on the facts of each case. While failure to review a suspension order within 90 days may not ipso facto result in invalidation of the suspension order, if germane and unavoidable reasons exist, it must be done at the earliest opportunity, otherwise, it would be vitiated. In other words, if no review is held within 90 days without adequate and sufficient reasons, the continuation of the suspension order beyond 90 days will vitiate the suspension order. 21. Accordingly, in the present case, this Court will examine as to the facts and circumstances which prevented the authorities from holding the review within 90 days as contemplated under sub-Rule 6 of Rule 10 of CCS (CCA) Rules. 22. The case of the Union respondents is that because of lack of quorum, no review could be held on 30.10.2018 when Executive Committee of the University was convened for the said purpose. 23. Mr. S.C. Keyal, learned ASGI has furnished a copy of the minutes of 122nd Meeting of the Executive Council held on 30.10.2018. The relevant portion of the aforesaid proceeding reads as follows: "At the outset, the Chairman welcomed all the Members present in the meeting and discussed about the attendance of required number of members for fulfilling the quorum of the meeting. Since only 04 (four) members were present in the meeting it was resolved that the meeting is adjourned due to non fulfillment of quorum and re-rescheduled on 19th November 2018 at the same time and same venue." 24. Since only 04 (four) members were present in the meeting it was resolved that the meeting is adjourned due to non fulfillment of quorum and re-rescheduled on 19th November 2018 at the same time and same venue." 24. Therefore, if the review could not be held because of lack of quorum, perhaps the Assam University could not have been faulted with. However, what is important to note is that in the said meeting held on 30.10.2018, it has been mentioned that the meeting is rescheduled to be held on 19.11.2018. 25. Learned ASGI has also furnished a copy of the Minutes of the meeting of the Executive Council held on 19.11.2018, in which the following resolution was taken relating to this case: Item No. 1 : Matter related to ICC case of a faculty member: EC: 122:11-18:01: The report of ICC case of a faculty member was placed by the chairman in the meeting for decision of the Council. Resolution: The ICC report in respect of Dr. Sudipto Sarkar, Dept. of Agricultural Engineering was placed by the Chairman for perusal of the members and on perusal of the same and considering the related aspects of the issue the Council decided to maintain status quo on the issue. However, the Council advised the University administration to constitute a Committee for further investigating, as proposed by the Assistant Solicitor General and report of the Committee to be submitted to the Vice Chancellor. 26. The Executive Committee, after deliberation in their meeting held on 19.11.2018 decided to maintain status quo on the issue after perusal of the Internal Complaint Committee (ICC) report and further advised the University Administration to constitute a Committee for further investigation as proposed by the ASGI and the report of the Committee to be submitted to the Vice Chancellor. 27. However, no decision was taken by the Executive Council as to whether the suspension of the petitioner should be continued or not. It was only on 04.12.2018, in the meeting of the Executive Council that the Executive Council resolved that the suspension in respect of Dr. Sudipto Sarkar shall continue. 28. This Court is of the view that if the suspension order of the petitioner could not be reviewed on 30.10.2018 as claimed by the petitioner because of lack of quorum, it was incumbent on them to review the same at the earliest when it was rescheduled on 19.11.2018. Sudipto Sarkar shall continue. 28. This Court is of the view that if the suspension order of the petitioner could not be reviewed on 30.10.2018 as claimed by the petitioner because of lack of quorum, it was incumbent on them to review the same at the earliest when it was rescheduled on 19.11.2018. However, this Court finds that though Executive Council was convened on 19.11.2018, no such decision was taken to review the suspension of the petitioner, but was taken only on 04.12.2018. 29. This Court is of the view that the spirit and the mandate of law as provided under the sub-Rule 10(6) of the CCS (CCA) Rule has not be properly followed in the present case and the review was held after 120 days, contrary to the requirement of law to be held within 90 days. Therefore, this Court holds that the University authorities have not been diligent enough to comply with the requirement of law as provided under sub-Rule 6 of Rule 10 of CCS (CCA) Rule. 30. The specific provision under Rule 10 sub-Rule 7, which provides that suspension shall not be valid after a further period of 90 days, unless it is extended after review for a further period before expiry of 90 days, can-not be ignored. The application of sub-rule 7 of Rule 10 which clearly indicates the urgency and significance of such review cannot be ignored. 31. For the reasons discussed above, this Court holds that under the facts and circumstances of the case, as stated above, the review of the suspension and the resolution to continue the suspension by the resolution dated 04.12.2012 cannot be held to be valid in terms of the sub-Rule 7 of Rule 10 of CCS (CCA) Rules. 32. Accordingly, for the reasons discussed above, the present writ petition succeeds as far as the issue of challenge of the continuation of the impugned suspension order is concerned. It is held that the continuation of suspension of the petitioner vide subsequent order passed on 04.12.2018 does not meet the requirement of law. 33. In the result, the continuation of suspension of the petitioner beyond 90 days is held to be illegal and is, accordingly, set aside. Consequently, the writ petitioner would be entitled to be reinstated in the service as Associate Professor. 34. 33. In the result, the continuation of suspension of the petitioner beyond 90 days is held to be illegal and is, accordingly, set aside. Consequently, the writ petitioner would be entitled to be reinstated in the service as Associate Professor. 34. However, this Court also cannot ignore the submission advanced by the learned ASGI that the charge against the petitioner is serious and it would send a wrong signal if a person against whom prima-facie offence of sexual harassment has been made out. In that view of the matter, the University authorities would be in liberty to place the service of the petitioner in such appropriate office as the University authority may deem fit so that continuation of the investigation/enquiry against him may not be in any manner inconvenienced or hampered and the complainant does not have to share any working space within close vicinity of the working place of the petitioner. 35. As regards the issue of devastating power from the petitioner of the Head of the Department is concerned, this Court is of the view that such an action cannot be said to be unreasonable for the reason that the petitioner has been charged of certain serious misconduct and against whom prima-facie finding has been made by the Internal Complaints Committee, and as such, the University would be within its authority the petitioner of any such responsibility from the petitioner during the course of the investigation of the charges made against him. However, it will still be open to the petitioner to approach the authorities for giving appropriate assignment and responsibilities, which the authority will consider in accordance with law. 36. Petition is accordingly disposed of.