Shri Rajiv Kumar vs Union Of India (Uoi)
2002 Latest Caselaw 966 Del

JUDGMENT

S.B. Sinha, C.J.

1. Interpretation of Rule 10(2) of the Central Civil Services (Classification Control and Appeal) Rules, 1965 (in short "CCS (CCA) Rules is in question in this writ petition, which arises out of a judgment and order dated 14th March 2001 and 15th May 2001 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1539/00 and RA No. 187/01 respectively.

2. FACTS

The petitioner was recruited as a Member of the Indian Revenue Services. While posted as Assistant Commissioner (Investigation) at Piramal Chambers, Mumbai a complaint was lodged by a tax defaulter in relation to an order of attachment of his Bank Accounts. An allegation was made that the petitioner had sought for illegal gratification, where for, the Central Bureau of Investigation (in short CBI') purported to have organized a trap on 25/26th March 1998. The petitioner contends that he was manhandled and allegedly currency notes were recovered three corridors away from his cabin. However, he had been taken in police custody from 26th March 1998 to 2nd April 1998. He was granted bail on 2nd April 1998.

3. By an order dated 15th May 1998 the petitioner was placed under suspension purported to be in terms of Rule 10(2) of the CCS(CCA) Rules, 1965 which reads thus:-

F.No.C-14011/7/98-V&L

Government of India

Ministry of Finance

Department of Revenue

Central Board of Direct Taxes

*****

New Delhi the 15th May 1998

ORDER

Whereas Shri Rajiv Kumar, Assistant Commissioner of Income-tax, Mumbai was detained in custody on 26.3.1998 for a period exceeding forty-eight hours.

Now, therefore, the said Shri Rajiv Kumar is deemed to have been suspended with effect from the date of detention, i.e. 26.3.1998 in terms of Sub-rule (2) of Rule 10 of the Central Services (Classifications, Control and Appeal) Rules 1965 and shall remain under suspension until further orders.

By order and in the name of the President.

Director (V&L)"        

The said Rule read thus:

10. Suspension

(1).....

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority-

(a) with effect from the date of his detention, if he is detained i 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 Clauses (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 ore on review under these rules and the case is remitted for further inquiry or actio or with any other directions, the order of his suspension shall be deemed to have continued in force, on and form 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 impose, 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) An 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 (where in connection with any disciplinary proceedings 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 ate 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.

4. The petitioner was kept under suspension for a long time. Questioning the same he filed an Original Application before the Tribunal on 2nd July 2000, inter alia, alleging that the period of suspension in terms of the Office memorandum dated 16th December 1992 during investigation had been reduced from 6th months to three months and despite the fact that no charge-sheet has been filed, he had been kept under suspension, During the pendency of the said Original Application the CBI filed charge-sheet on 2nd September 2000.

5. The petitioner, in view of a Full bench decision of the Allahabad High Court in Chandra Shekhar Saxena and Ors. v. Director of Education (Basic) U.P., Lunknow and Anr. reported in 1997 ALL.L.J. 963 as also a decision of the Central Administrative Tribunal, Lucknow Bench, Lucknow in O.A. No. 256/00, filed an application for an interim order that the order of suspension be directed to be revoked on the ground that deemed suspension cannot be continued beyond the period of detention. In the meantime, however, fresh order reviewing suspension order was passed. By reason of the impugned order dated 14th March 2001 the said Original Application was disposed of by the Central Administrative Tribunal directing the respondents to pass a speaking and reasoned order within a period of two months upon taking into consideration the grounds taken by the petitioner in his representation, as regard revocation of suspension order as also the rules and instructions and judicial pronouncements on the subject. A review petition was filed by the petitioner which was marked as Review Application No. 187/01 which was dismissed by an order dated 15th May 2001.

6. Submissions:-

The petitioner who was appeared in person inter alia submitted that a legal fiction created under Statute cannot be extended beyond the object and purport thereof. The petitioner would contend that having regard to the difference in phraseology use din Sub-rule (2) of Rule 10 on the one hand and Sub-rule (3) and (4) thereof on the other, it must be held that such legal fiction was created for limited purpose and the order of suspension passed there under could not have been extended beyond the period of detention. Reliance, in this connection, has been placed upon Chandra Shekhar Saxena's case (supra).

7. The petitioner would contend that in this case the learned Tribunal has failed to exercise its power of judicial review inasmuch as it has failed/neglected to consider the question involved therein.

8. Mr. Bhardwaj, learned counsel appearing on behalf of the respondents, on the other hand, would submit that even in case of acquittal an order of suspension is not automatically revoked. According to the learned counsel an order of suspension passed would remain in force until the same is varied, modified or withdrawn by an appropriate order.

9. Findings:-

On a bare perusal of Sub-rule 2(a) of Rule 10 of the Rules, it would appear, a legal fiction has been created so that a person would be deemed to be under suspension w.e.f. the date of his detention, if he is in custody for a period of exceeding 48 hours. For the purpose as a legal fiction has been created no actual order need be passed. A bare perusal of provisions of Sub-rules (3) and (4), it would appear that such legal fiction had been created therein as if an order which has been passed would remain in force until further orders.

10. It may be true that an order of suspension made or deemed to have been made having regard to Sub-rule (5)(a) of Rule 10 would continue to remain in force unless it is modified or revoked by the authorities competent to do so but Sub-rule (5)(b) appears to have been made 'ex majori cautela'. Suspension pending a departmental proceeding or in contemplation thereof or when a criminal offence is under investigation, enquiry or trial is covered by Sub-rule (1) of Rule 10. A person, if he is sought to be or is placed under suspension only because a departmental proceeding is contemplated or pending or if he is involved in any criminal case, which is under investigation, enquiry or trial, competent authority is required to apply his own mind and pass an appropriate order which would necessitate instructions of the relevant facts, viz., whether, in the facts and circumstances of this case and having regard to the nature of offence and the position held by the delinquent employee, an order of suspension is required to be passed or not.

11. Whereas Sub-rule 1 of Rule 10 thus contemplates passing of an order of suspension upon application of mind suspension under Sub-rule 2 of Rule 10 would be automatic.

12. Such a legal fiction, it is trite, should not be extended beyond its scope and object.

13. In Kuldeep Singh v. Ganpat Lal and Anr. , the Apex Court has laid down the law in the following terms:-

"In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. (See: Bengal Immunity Co. Ltd. v. State of Bihar ."

14. An order of suspension pending a disciplinary enquiry or criminal proceedings per se may not be penal in nature. It, however, has a serious civil consequences. A person during the period of suspension is not only deprived of from his entire salary and will have to be dependent upon his subsistence allowance, unless and until he is cleared of the charges, his reputation may go down in the society. An order of suspension, therefore, should not be unnecessarily prolonged. If an employee is placed under suspension during pendency of a criminal case the same may have to be reviewed from time to time having regard to the status of the person who is placed under suspension. Even while passing an order of suspension the competent authority must act bona fide. A higher ranking officer may not be suspended on trifling matters. Subject of course to the statutory provisions an order of suspension would not be automatic.

15. In State of Orissa v. Bimal Kumar Mohanty , it has been held:

"Normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee."

16. The decision of the Apex Court in Balvantrai Ratilal Patel v. State of Maharashtra whereupon reliance has been placed by Mr. Bhardwaj is not apposite, inasmuch as therein an order was passed in terms of Sub-rule (1) of Rule 10. Thus, such an order of suspension is to remain in force further orders.

17. It is a well settled principle of law that statute has to be construed having regard to the provisions contained in other provisions thereof. The legislature is presumed to have used certain expressions keeping in view certain purposes. If Sub-rule (5) of Rule 10 would have covered Sub-rule (2), (3) and (4), it was not necessary to expressly use the expressions "and shall remain in force until further orders" in Sub-rule (3) and (4). Once it is held that in terms of Sub-rule (5)(a) of Rule 10 even an order of suspension would continue to remain in force unless it is modified or revoked by the authorities competent to do so, the words "and shall remain in force until further orders" employed in" Sub-rule 3 and 4 would become otiose.

18. Sub-rule 2A of Rule 10 of the Rules does not contain any provision wherefrom it can be deducted that the deemed suspension would continue unless it is withdrawn despite the fact that on plain reading thereof the same comes to an end by operation of law.

19. For proper interpretation of the said provisions the object thereof must be taken into consideration. Although no order of suspension is passed, if a person remains in detention, he would be treated to be under suspension if the same continues for a period of more than 48 hours. By reason of a legal fiction he would be placed under deemed suspension but as soon as he comes out of detention, legal fiction would serve out its purpose.

20. In the instant case the petitioner had been in police custody from 26th March, 1998 to 2nd April 1998. The impugned order of suspension had been passed on 15th May 1998. Such an order of suspension after the release of the petitioner on bail could not have been passed purported to be under Rule 10(2) of the rules. Such an order could have been passed only in terms of Sub-rule (1) or Rule 10, wherefor proper application of mind was necessary. In Chandra Shekhar Saxena (supra) a Full Bench of the Allahabad High Court has considered the matter in great detail and held:

"27. We have considered all the cases cited by the learned counsel for parties. However, we do not find anything on which basis the view we have expressed above may be doubted or shaken. Our conclusions and answer to the questions referred to us are as under:-

(A) Sub-clause (a) of Sub-rule (2) of Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930, as applicable in Uttar Pradesh, is not violative of Articles 14 and 21 of the Constitution of India as held in case of Jagjit Singh v. State of U.P. reported in 1995(1) ESC 329 (All) and the judgment is hereby overruled.

(B) The legal fiction envisaged under Sub-rule (2)(a) and (b) of Rule 49-A shall come into play and a deemed suspension by an order of the appointing authority shall come into existence if the Government servant is detained in custody for more than forty-eight hours even in absence of any order in writing passed by the appointing authority.

(C) The deemed suspension provided under Sub-rule (2) of Rule 49-A shall be confined to the period of detention in custody and not beyond that.

(D) The deemed suspension by an order of the appointing authority under the legal fiction provided in Sub-rule (2) may be continued after released by the appointing authority by passing an express order taking into account the guidelines provided in other sub-rule of Rule 49-A according to the facts and circumstances of the case.

(E) The deemed suspension under Sub-rule (2) of Rule 49-A may be modified or revoked by the appointing authority on a representation made by the Government servant which shall be considered and decided taking into consideration the guidelines provided in Sub-rules (1) and (1-A) of Rule 49-A."

While considering the provisions of Rule 49A of the U.P. Civil Services (Classification, Control and Appeal) Rules, 1930, which is in pari materia with Rule 10 of the Rules it was held as follows:

"14. The problem before this Bench is regarding interpretation of a provision creating legal fiction. For interpreting such a provision, certain principles have been laid down which are to be kept in mind.

The first important principle for interpreting a provision creating legal fiction is that the court has to ascertain the purpose for which the legal fiction has been created and after ascertaining the purpose the Court has to assume all other facts and consequent which are incidental or inevitable corollaries for giving effect to the fiction. Hon'ble Supreme Court as far back as in 1953 in case of State of Bombay v. Pandurang, , held as under:

"When a statute enacts that something shall be deemed to have been done which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted, to and full effect must be given to the statutory fiction and it should be carried to its judicial conclusion."

This view of Hon'ble the Supreme Court has been subsequently followed in almost every case. Hon'ble Supreme Court also quoted with approval the following observations of Lord Asquth in case of East End & Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC

109.

"If you are bidden to treat an imaginary state of affairs as real, you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must not cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

21. In Nelson Motis v. Union of India and Anr. the Apex Court noticed the difference of language between the Sub-rule (3) of Rule 10 and Sub-rule (4) of Rule 10 and held that in view of the plain language used therein a government servant although shall also deemed to have been placed under suspension by the appointing authority from the date of the original of dismissal provided that the other conditions mentioned therein are satisfied.

22. In this view of the matter, we are of the opinion that the impugned order of suspension is void ab initio, any order reviewing the same would also be a nullity.

23. The submission of Mr. Bhardwaj to the effect that Rule 10 does not contemplate any automatic withdrawal of the order of suspension, thus, cannot be accepted.

24. For the reasons afore-mentioned, we are of the opinion that the learned Tribunal was not correct in remitting the matter back to the appointing authority for consideration of the matter afresh.

When a question of law had been raised before the Tribunal, it should have applied its mind and pass an appropriate order. The impugned order of suspension is quashed. The writ petition is allowed. However, this order shall not stand in the way of the respondents in passing an appropriate order, in the event, the appointing authority deems it fit and proper. No costs.