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2022 DIGILAW 93 (MAN)

S. Bikramaditya Meitei (Dr. ) v. State of Manipur

2022-05-27

M.V.MURALIDARAN

body2022
JUDGMENT 1. In W.P.(C) No.947 of 2021, the petitioner prayed for issuance of a writ of certiorari or mandamus to quash the impugned suspension order bearing No.01/776/Departmental Enquiry/JNIMS/21, dated 26.6.2021 along with the Memorandum dated 26.6.2021 issued by the Principal Secretary (H & FW), Government of Manipur. 2. In W.P. (C) No.53 of 2022, the petitioner seeks issuance of a writ of certiorarified mandamus to quash the impugned order dated 21.12.2021 issued by the Additional Chief Secretary (H & FW)/Chairman, Executive Committee JNIMS Society, by which the earlier suspension of the petitioner was extended for a further period of 180 days with effect from 24.8.2021 by the Review Committee in violation of the Rules. 3. It is the case of the petitioner that since his appointment to the post of Senior Resident in the Jawaharlal Nehru Institute of Medical Sciences Society (JNIMS) vide proceedings dated 20.11.2011 in the Department of Psychiatry, he was serving in the said capacity without any promotion. It is averred that since he has been functioning as the General Secretary of Teacher's Association JNIMS, he took part in various agitations pertaining to violation of fundamental rights of the members of the association and, therefore, he was targeted and singled out by the authorities of JNIMS and an order of suspension was passed on 26.6.2021. Along with the order of suspension, a memorandum of charges dated 26.6.2021 was issued, which are the subject matter of challenge in W.P. (C) No.947 of 2021. 4. It is further stated that despite an order dated 21.12.2021 passed in W.P. (C) No.947 of 2021 to the effect that 'the pendency of the writ petition shall not preclude the respondents from considering and disposing of the representation dated 29.11.2021' and the same being communicated to the official respondents by way of a legal notice dated 23.12.2021, the respondents did not consider the representation of the petitioner dated 29.11.2021. However, it is stated that the respondents vide order dated 21.12.2021, which was alleged to be communicated to the petitioner on 30.12.2021, extended the suspension period of the petitioner for a period of 180 days from 24.8.2021. 5. It is the contention of Ms. Pushpa, the learned counsel for the petitioner that the proceedings dated 21.12.2021 extending the period of suspension has been passed as an afterthought pursuant to the order dated 21.12.2021 passed in W.P. (C) No.947 of 2021, antedating the proceedings. 6. 5. It is the contention of Ms. Pushpa, the learned counsel for the petitioner that the proceedings dated 21.12.2021 extending the period of suspension has been passed as an afterthought pursuant to the order dated 21.12.2021 passed in W.P. (C) No.947 of 2021, antedating the proceedings. 6. The next contention of the learned counsel for the petitioner is that the order of suspension dated 26.6.2021 was not extended after review within a period of 90 days as prescribed under Rule 10(7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and, therefore, the same is not valid in the eye of law. 7. The last argument advanced by learned counsel for the petitioner is that the Government of Manipur imposed lockdown from 8.5.2021 to 18.7.2021 and thereafter it was lifted and, even according to the office memorandum dated 30.3.2020, the Government of India, Department of Personnel and Training, decided not to count the period of the lockdown for the purpose of adherence to the timeline for review of order of suspension before its expiry date, and thereby stipulated that after the lockdown is lifted, the task to be completed within 90 days, should be completed within 90 days after the lifting of lockdown. However, within 90 days, the order of suspension was not reviewed and, therefore, it is invalid. 8.In reply, Mr. Lenin Hijam, learned Advocate General appearing for the second respondent submitted that the involvement of the petitioner in agitations launched by the Teacher's Association has nothing to do with the suspension order. He added that the departmental enquiry is under way and the Inquiring and Presenting Officers have been appointed and such information had also been communicated to the petitioner. 9. Learned counsel for the second respondent further submitted that the delay in reviewing the suspension order was unintentional, inasmuch as JNIMS was in the forefront in fighting the pandemic by having more than 100 beds dedicated to Covid treatment. 10. Heard both the counsels for the parties and perused the documents available on record. 11. To proceed with the matter, at the outset, it is appropriate to reproduce Rule 10 of the CCS (CCA) Rules herein below:- '10. 10. Heard both the counsels for the parties and perused the documents available on record. 11. To proceed with the matter, at the outset, it is appropriate to reproduce Rule 10 of the CCS (CCA) Rules herein below:- '10. Suspension (1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension- (a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial: Provided that, except in case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service in regard to as Assistant Accountant-General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made. (2) A Government servant shall be deemed to have been place under suspension by an order of Appointing Authority- (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours; (b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. EXPLANATION.-The period of forty-eight hours referred to in Clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. EXPLANATION.-The period of forty-eight hours referred to in Clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force, on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. (5)(a) Subject to the provisions contained in sub-rule (7), any order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings. (c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. (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 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. 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.' [emphasis supplied] 12. There is no quarrel in respect of the interpretation of the provisions of Rule 10(6) and (7) of CCS (CCA) Rules which unambiguous postulate that an order of suspension made or deemed to have been made under the Rules shall be reviewed by the competent authority to modify or revoke the suspension, before expiry of 90 days from the date of order of suspension, and if the said order of suspension is not reviewed/extended for further period as provided under sub-rule (6), the order of suspension shall cease to exist after expiry of 90 days in view of proviso to sub-rule (7) of Rule 10 of CCS (CCA) Rules. However, in the case on hand, the reason given by the respondent authorities is that over 100 beds were dedicated to Covid treatment in JNIMS and, therefore, there was a delay. 13. The learned counsel for the petitioner placed heavy reliance on the decision of the Hon'ble Apex Court in the Union of India and others v. Dipak Mali, (2010) 2 SCC 222 , wherein it has been held as under: '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. 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.' [emphasis supplied] 14. 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.' [emphasis supplied] 14. Following the decision of the Hon'ble Apex Court in Dipak Mali (supra), this Court in Nasib Ali v. State of Manipur and another, 2021 (3) MnLJ 415, held as under: '21. Thus, it is clear that the review for modification or revocation of the order of suspension is required to be done before the expiry of 90 days from the date of suspension and sub-rule (7) of Rule 10 of CCS (CCA) Rules, 1965 clearly provided that 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. Admittedly, it is not the case of the respondents that the suspension of the petitioner was extended after review. Thus, there is merit in the submission of the learned senior counsel for the petitioner that the suspension order has not been reviewed by the respondent authorities and as such the suspension order dated 25.9.2012 being prolonging in nature and is liable to be quashed.' 15. In the case on hand, the order of suspension was initially passed on 26.6.2021 and the same was extended for a further period of 180 days only vide order dated 21.12.2021. That is almost after six months. Even excluding the period of limitation during the lockdown as stipulated in the official memorandum dated 30.3.2020, the order of review of the suspension was passed way beyond the statutory period. Of course, there is a justifiable reason shown by the respondents for the delay in reviewing the order of suspension. Admittedly, the order of suspension dated 26.6.2021 was passed when the lockdown was in force, but the review of suspension order was not done within the statutory period or the extended period owing to the fight against the Covid in JNIMS. Therefore, considering the peculiar facts and circumstances and the reason given by the respondents, the order of suspension and the consequential extension cannot be held to be invalid. 16. Moreover, it is trite law that suspension is not a punishment, but a mere suspending of the relationship between the employer and the employee. Therefore, considering the peculiar facts and circumstances and the reason given by the respondents, the order of suspension and the consequential extension cannot be held to be invalid. 16. Moreover, it is trite law that suspension is not a punishment, but a mere suspending of the relationship between the employer and the employee. The Hon'ble Supreme Court in Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147, emphatically held as under: '14. The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh, (1970) 1 SCC 108 ; P.V. Srinivasa Sastry v. Comptroller & Auditor General of India, (1993) 1 SCC 419 ; Director General, ESI & Anr. v. T. Abdul Razak, AIR 1996 SC 2292 ; Kusheshwar Dubey v. M/s Bharat Cooking Coal Ltd. & Ors., AIR 1988 SC 2118 ; Delhi Cloth General Mills vs. Kushan Bhan, AIR 1960 SC 806 ; U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. v. Sanjeev Rajan, (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena & Ors., (1996) 6 SCC 417 ; Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan, (1996) 3 SCC 157 ; and Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1 , wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review.' [emphasis supplied] 17. Considering the outbreak of Covid pandemic and the specific fact that the JNIMS was leading the fight by having over 100 beds, this Court is of the firm view that the order of suspension and its extension, though a little beyond limitation, do not warrant any interference. That apart, the fact that the Presenting Officer and the Inquiring Officer have been appointed is also not disputed. The respondent authorities may ensure that the disciplinary proceedings are concluded expeditiously, preferably within a period of three months from the date of receipt of a copy of this order. For the foregoing reasons, the writ petitions are dismissed. That apart, the fact that the Presenting Officer and the Inquiring Officer have been appointed is also not disputed. The respondent authorities may ensure that the disciplinary proceedings are concluded expeditiously, preferably within a period of three months from the date of receipt of a copy of this order. For the foregoing reasons, the writ petitions are dismissed. There will be no order as to costs.