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2023 DIGILAW 1118 (ALL)

Union Of India v. Manoj Pal

2023-04-24

RAJENDRA KUMAR IV, SUNEET KUMAR

body2023
JUDGMENT : Suneet Kumar, J. 1. Heard learned counsel for the petitioner and Shri V.K. Tiwari, learned counsel for the original applicant. 2. Petitioner-Union of India/Department of Post Office, by the instant writ petition, is challenging the order dated 10 November 2023, passed by the Central Administrative Tribunal, Allahabad (Tribunal), whereby, the impugned suspension order before the Tribunal suspending the first respondent came to be set aside for the reason that Sub-rule (6) of Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules 1965 (Rules 1965), was not complied. The operative portion of the order reads thus: "24. Since the suspension order passed on 25.11.2019 was not extended within the expiry of 90 days by way of a formal order thus clearly contradicting the laid down procedures under Rule 6 and 7 of the CCS (CCA) Rules 1965, subsequent extension of the suspension order after expiry of the 90 days will not validate it as mere issuing of minutes of the review meeting cannot be treated as a formal order of the extension of suspension order passed at initial state. For this simple reason and considering the law laid down by the Hon'ble Apex Court and Hon'ble High Court as have been quoted hereinabove and comparing the same with the facts and circumstances of the present matter, I am of the view that plea taken by the applicant is liable to be allowed. 25. Accordingly, the instant original application is allowed and the impugned order dated 25.11.2019 is set aside. Respondents are further directed to reinstate the applicant to his original duties as he was discharging prior to the suspension order dated 25.11.2019 issued against him along with all consequential benefits as per the established rules and procedures." 3. The respondent employee/original applicant was working as a Postal Assistant, he came to be suspended vide order dated 25 November 2009, passed by the Superintendent of Post Offices, Varanasi. Rule 10 of Rules 1965, provides for suspension by the appointing authority or any authority to which it is subordinate or the disciplinary authority or any authority empowered in that behalf by general or special order. 4. Rule 10 of Rules 1965, provides for suspension by the appointing authority or any authority to which it is subordinate or the disciplinary authority or any authority empowered in that behalf by general or special order. 4. Sub-rule (6), incorporated on 3 January 2004, provides that the 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 date of order of suspension on the recommendation of the Review Committee. 5. The competent authority is required to pass an order on the recommendation of the Review Committee either extending or revoking the suspension. The Rule further provides extension of suspension, however, suspension shall not be for a period exceeding 180 days at a time. Sub-rule (7) further provides that suspension made under the Rule shall not be valid after period of ninety days, unless it is extended after review. 6. Sub-rule (6) and (7) of Rule 10 is extracted: "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 date of order 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 of exceeding one hundred and eighty days at a time. 7. Notwithstanding anything contained in Sub-rule (5)(a), 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." 7. The learned Tribunal after perusal of the record was of the opinion that the mandate of Sub-rule (6) of Rule 10 was not complied as the order of suspension on the recommendation of the Review Committee, the competent authority had not passed any order thereon, either extending or revoking the suspension. 8. The minutes of Suspension Cases Reviewing Committee (Review Committee) held on 20 February 2020, Varanasi West Division, has been placed on record. 9. 8. The minutes of Suspension Cases Reviewing Committee (Review Committee) held on 20 February 2020, Varanasi West Division, has been placed on record. 9. The Review Committee of three members, considered the case of the respondent/original applicant and the committee having regard to the gravity of the case recommended continuance of suspension of the official for next 180 days w.e.f. 23 February 2020, i.e., after expiry of ninety days from the date of suspension order (25 November, 2019). 10. On the very same minutes of the Review Committee, the competent authority, i.e., Superintend Post Office, Varanasi, made an endorsement marking the copy of the recommendation of the Review Committee to the respondent/original applicant and other officials. In other words, the competent authority did not pass any order either extending or revoking the suspension on the recommendations of the Reviewing Committee in terms of Sub-rule (6) of Rule 10 of Rules 1965. 11. Learned counsel appearing for the petitioner submits that by making an endorsement forwarding the copy of the Review Committee, would tantamount to deemed acceptance of the recommendation of the Reviewing Committee. 12. Submission of the learned counsel for the petitioner is devoid of merit and on misreading of Sub-rule (6) and (7) of Rule 10 of Rules 1965. Mere forwarding the recommendation to the employee by the competent authority does not tantamount to either accepting or revoking the suspension by the competent authority. 13. The Sub-rule (6) mandates that an order has to be passed on the recommendation of the Review Committee either to accept or revoke the suspension. Sub-rule (6) and (7) of Rule 10 is couched in such a manner making the Rule mandatory. In the event the suspension order is not extended or revoked within ninety days, negative consequences follow automatically, i.e., suspension made shall not be valid after ninety days, notwithstanding any thing contained in Sub-rule 5(a) of Rules 1965. 14. Sub-section (6) employs the expression that suspension ‘shall be reviewed’ by the authority. The review is mandatorily required to be made in view of the consequences that follow in the event of failure to review the suspension within the stipulated time. 15. The question that arises for consideration is, as to whether, the word ‘shall’ in Sub-rule (6) is mandatory or directory, read with Sub-rule (7) of Rule 10. 16. The review is mandatorily required to be made in view of the consequences that follow in the event of failure to review the suspension within the stipulated time. 15. The question that arises for consideration is, as to whether, the word ‘shall’ in Sub-rule (6) is mandatory or directory, read with Sub-rule (7) of Rule 10. 16. In C. Bright vs. District Collector and others, 2021 (2) SCC 392 , Supreme Court was of the opinion that while interpreting the word ‘shall’ or ‘may’, is whether mandatory or directory, court would have to ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. Para-8 reads thus: “A well settled rule of interpretation of the statutes is that the use of the word “shall” in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. It is not always correct to say that if the word “may” has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid and that when a statute uses the word “shall”, prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. The principle of literal construction of the statute alone in all circumstances without examining the context and scheme of the statute may not serve the purpose of the statute.” 17. In Remington Rand of India Limited vs. Workmen, AIR 1968 SC 224 , the Supreme Court held that Section 17 of the Industrial Disputes Act, 1947 prescribing time limit of thirty days for publication of award by labour court is directory, inter alia, for the reason that the non-publication of the award within the period of thirty days does not entail any penalty. 18. The tests for finding out a provision is mandatory or directory. The principles for which the provision has been made, its nature, the intention of the legislature in making the provision and the language of the provision are to be considered. 19. 18. The tests for finding out a provision is mandatory or directory. The principles for which the provision has been made, its nature, the intention of the legislature in making the provision and the language of the provision are to be considered. 19. In Mannalal Khetan vs. Kedar Nath Khetan, (1860) 30 LJ Ch 379, while dealing with Section 108 of the Companies Act, 1956, a three Judge Bench of Supreme Court referring to Raza Buland Sugar Co. Limited vs. Municipal Board, Rampur, AIR 1965 SC 895 , held that prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negative prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. (Refer : Bhikraj Jaipuria vs. Union of India, AIR 1962 SC 113 ) 20. The aforenoted authority was referred in Union of India and others vs. A.K. Pandey, (2009) 10 SCC 552 . In other words word ‘shall’ followed by negative or prohibitive words are ordinarily indicative of mandatory intent of the provision. 21. Accordingly, from the mandate of Sub-rule (7) of Rule 10 of Rules 1965, employs negative and prohibitive words making the provision mandatory. After expiry of ninety days, the order of suspension shall not be valid in the eye of the Rule. In other words, the suspension order by operation of the Rule renders the suspension invalid for want of order of the competent authority on the recommendation of the Review Committee. 22. In the given facts of the present case, the competent authority has merely communicated the recommendations of the Review Committee acting like a post office without either accepting or revoking the order of suspension. There is no application of mind as to whether the recommendation of the Review Committee is to be accepted or not. The competent authority has to pass an order either extending or revoking the suspension, though the order need not be a speaking and reasoned order. 23. We do not find merit in the submission of the learned counsel for the petitioner. 24. The writ petition being devoid of merit is, accordingly, dismissed. 25. No cost.