Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 111 (GAU)

Mirpe Tato v. State of Arunachal Pradesh

2021-02-10

NANI TAGIA

body2021
ORDER : Nani Tagia, J. 1. Heard Mr. T.T. Tara, learned counsel for the petitioner and Mr. S. Tapin, learned Senior Govt. Advocate representing the State respondents. 2. This writ petition has been filed with the following prayers:- "I. A writ in the nature of Certiorari should not be issued quashing and setting aside the impugned being Memo No. PERS 56/93] (Pt-)/647, dated 12.05.2018 issued by the Chief Secretary, Government of Arunachal Pradesh, Itanagar which was signed by the Under Secretary (Personnel), Government of Arunachal Pradesh, Itanagar, by which the suspension of the petitioner was extended for another 6 (six) months with effect from 13.05.2018 in exercise of power conferred by the Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1695. II. A writ in the nature of Certiorari should not be issued quashing and setting aside the impugned subsequent order(s) being Memo No. PERS-56/93 (Pt-II)/310 dated 09.11.2018 and Memo No. PERS-56/93 (Pt-II)/724, dated 1.11.2019, whereby the suspension period of the petitioner was kept on extending after expiry of every six months and also the impugned order being Memo No. PERS-56/93/586, dated 3.6.2020 issued after expiry of 39 days whereby the respondent authorities have extended the suspension period of the petitioner for another 180 with effect from 28.05.2020 to 23.11.2020 arbitrarily and illegally. III. A writ in the nature Mandamus should not be issued directing the respondent authorities to revoke the impugned order being Memo No. PERS-56/93 (Pt-)/647, dated 12.05.2018 issued by the Chief Secretary, Government of Arunachal Pradesh, Itanagar which was signed by the Under Secretary (Personnel), Government of Arunachal Pradesh, Itanagar, by which the suspension of the petitioner was extended for another 6 (six) months with effect from 13.05.2018 in exercise of power conferred by the Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1695 and be further pleased to direct the respondent authorities to reinstate the petitioner in his service as Extra Assistant Commissioner with immediate effect with all financial and consequential service benefits. IV. IV. A writ in the nature of Mandamus should not be issued directing the respondent authorities to revoke the impugned order being Memo No. PERS-56/93 (Pt-II)/422, dated 13.02.2018 signed and issued by the Chief Secretary, Government of Arunachal Pradesh, whereby and whereunder the petitioner was suspended as APCS (Senior Grade) in exercise of powers conferred by the Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1695 by which the petitioner was initially placed under suspension". 3. The writ petitioner who is an Arunachal Pradesh Civil Service, Sr. Grade (for short, 'APCS (Sr. Grade) officer was put under suspension on 13.02.2018 pending contemplated disciplinary proceeding against the petitioner. The suspension of the petitioner was extended by another order of suspension dated 12.05.2018 for a period of 6 (six) months w.e.f. 13.05.2018 which was extended by another order of suspension dated 09.11.2018 for a period of 6 (six) months. Though, thereafter, there appears to be another order of suspension issued by the respondent authorities, the writ petitioner has not annexed that suspension order in the writ petition; and, the subsequent order referred to and annexed in the writ petition is the order of suspension dated 29.10.2019 placing the writ petitioner under suspension for another 180 days w.e.f. 04.11.2019 which was again followed by yet another order dated 09.06.2020 placing the petitioner under suspension for another 180 days w.e.f. 28.05.2020. Thereafter, again no further suspension order has been annexed by the writ petitioner but it is submitted by the learned counsel appearing for the petitioner as well as Mr. S. Tapin, learned Sr. Govt. Advocate that the respondent authorities have passed another order of suspension dated 19.11.2020 putting the petitioner under suspension for another 180 days. Therefore, the petitioner, as on date, is under suspension. In the meanwhile, on initiation of a departmental proceeding, a Memorandum of Charges dated 27.05.2019 is stated to have been served upon the petitioner on 08.06.2019. 4. In the backdrop of above facts, the writ petitioner has filed this writ petition challenging continuation of the suspension of the petitioner, on the ground, that when the order of suspension dated 09.06.2020 was issued placing the petitioner under suspension for 180 days w.e.f. 28.05.2020, the order of suspension dated 09.06.2020 was issued after the last order of suspension dated 29.10.2019 had expired on 01.05.2020. Therefore, the petitioner contended in the writ petition that the last order of suspension dated 09.06.2019 having not been issued while the last order of suspension was in force, the order of suspension dated 09.06.2020 would be invalid as per provision of Rule 10 Clause 6 & 7 of the CCS (CCA) Rules, 1965. 5. The respondent Nos. 1, 2 & 3 have countered the contentions raised by the petitioner by filing a counter affidavit, wherein, by relying on the Office Memorandum dated 30.03.2020 issued by the Addl. Secretary to the Government of India, Department of Personnel & Training Vide No. F.NO./11012/04/2016-Estt.(A)-III (Annexure-I to the counter affidavit) in respect of counting of the limitation period for the purposes under CCS (CCA) Rules, 1965, whereby, period under Lock down during the COVID-19 pandemic was exempted from counting for the purpose of review of order of suspension before its expiry date under Rules TO (6) of CCS (CCA) Rules, 1965; and contends that as the period between the order of suspension dated 09.06.2020 and the last order of suspension dated 29.10.2019 was within the Lockdown period imposed by the Government, the last order of suspension dated 09.06.2020 was well within the time as prescribed by Rule 10 (6) of CCS (CCA) Rules, 1965. 6. On the rival pleadings of the parties, what ought to have been adjudicated by this Court in the instant case was as to whether the order of suspension of the petitioner was reviewed by the respondent authorities in accordance with law as provided under CCS (CCA) Rules, 1965. However, when this matter was heard on 09.02.2021 Mr. Tara, learned counsel for the petitioner had produced an Office Memorandum dated 23.08.2016 issued by the Director (E), Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Establishment A-III Vide No. F. No./11012/04/2016-Estt. (A) to contend that in view of the judgment rendered by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary vs. Union of India, in Civil Appeal No. 1912 of 2015 dated 16.02.2015, the Government has decided that when a Govt. servant is placed under suspension, the order of suspension should not extend beyond 3 (three) months. If within this period, the Charge-Sheet is not served upon the charged officer, the order of suspension should not extend beyond 3 (three) months. servant is placed under suspension, the order of suspension should not extend beyond 3 (three) months. If within this period, the Charge-Sheet is not served upon the charged officer, the order of suspension should not extend beyond 3 (three) months. As the Office Memorandum dated 23.08.2016 was not a part of the pleading, Mr. Tapin, learned Sr. Govt. Advocate was handed over a copy of the said Office Memorandum to provide him an opportunity to receive instruction from the respondents whether this Office Memorandum dated 23.08.2016 produced by the learned counsel for the petitioner is applicable to the employees of the State of Arunachal Pradesh. Today Mr. Tapin, learned Sr. Govt. Advocate, on instruction received from the respondent authorities submits that the said Office Memorandum dated 23.08.2016 is applicable to the employees of the Government of Arunachal Pradesh and no subsequent Office Memorandum have come to the light of the State respondents superseding the Office Memorandum dated 23.08.2016 referred to hereinabove. 7. The Office Memorandum dated 23.08.2016 issued by the Director (E), Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Establishment A-III Vide No. F. No/11012/04/2016-Estt. (A) is quoted hereinbelow:- F. No. 11012/04/20=16-Estt.(A) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training Establishment A-III Desk North Block, New Delhi - 110001 Dated August August 23, 2016 Office Memorandum Sub: Central Civil Services (Classification, Control and Appeal) Rules, 1965-instructions regarding timely issue of Charge-sheet - regarding. The undersigned is directed to refer to DoP&T's O.M. No. 11012/17/2013-Estt.A-III dated 3rd July, 2015 on the above mentioned subject and to say that in a recent case, Ajay Kumar Choudhary vs Union of India Civil Appeal No. 1912 of 2015 dated 16.02.2015, the Apex Court has directed as follows: "14 We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge sheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us." 2. In compliance of the above judgement, it has been decided that where a Government servant: is placed under suspension, the order of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the charged officer. As such, it should be ensured that the charge sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a (c)lose watch needs to be kept at all levels to ensure that charge sheets are issued in time. 3. It should also be ensured that disciplinary proceedings are initiated as far as practicable in cases where an investigating agency is seized of the matter or criminal proceedings have been launched. Clarifications in this regard have already been issued vide O.M. No. 11012/6/2007-Estt.A-III dated 21.07.2016. 4. All Ministries/Departments/Offices' are requested to bring the above guidelines to the notice of all Disciplinary Authorities under their control. 5. Hindi version will follow. (Mukesh Chaturvedi) Director (E) Tel: 23093176" 8. From perusal: of Paragraph-2 of the Office Memorandum referred to hereinabove, it is noticed that in compliance of judgment passed in Ajay Kumar Choudhary (Supra) in Civil Appeal No. 1912 of 2015 dated 16.02.2015, it has been decided by the Government that when a Govt. servant is placed under suspension, the order of suspension should not extend beyond 3 (three) months and if within the period of 3 (three) months, the Charge-Sheet is not served to the Charged Officer, the suspension order of the officer should not be extended beyond 3 (three) months. 9. servant is placed under suspension, the order of suspension should not extend beyond 3 (three) months and if within the period of 3 (three) months, the Charge-Sheet is not served to the Charged Officer, the suspension order of the officer should not be extended beyond 3 (three) months. 9. In the instant case, the petitioner was put under suspension for the first time by an order dated 13.02.2018 whereafter, the same was reviewed from time to time. The Memorandum of Charges dated 27.05.2019 admittedly was served upon the charged officer/petitioner only on 08.06.2019. Therefore, what has been noticed in the instant case is that the Memorandum of Charges to the petitioner in the instant case was not served upon him within a period of 3 (three) months from the date of suspension of the petitioner on 13.02.2018. 10. In that view of the matter, if the Office Memorandum dated 23.08.2016, referred to hereinabove, is to be applied in the instant case, which Office Memorandum is stated to be applicable to the employees of the Government of Arunachal Pradesh, the continuation of the suspension of the petitioner would be contrary to the Office Memorandum dated 23.08.2016 referred to hereinabove. Therefore, though the issue raised in the writ petition and the counter affidavit filed by the State respondents was different, yet, this writ petition deserves to be allowed on the basis of Office Memorandum dated 23.08.2016, which I do hereby. Resultantly, the respondent authorities shall reinstate the petitioner in service with all consequential benefits, if any, in accordance with law. The O.M. dated 23.08.2016 issued by the Director (E), Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Establishment A-III Vide No. F. No./11012/04/2016-Estt. (A) is taken on record which shall form part of the record. Writ petition stands disposed of in terms above.