Shri N.K. Sethi vs India Trade Promotion ...
2005 Latest Caselaw 298 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by this writ petition seeks revocation of his suspension and reinstatement by the respondent. Petitioner had been placed under suspension on 27.10.2003 in contemplation of the disciplinary proceedings to be initiated in a case being investigated by the Vigilance Department of the respondent. The Chairman-cum-Managing Director of respondent in exercise of the powers conferred under rule 22(1) of the ITPO (Employees) CDA Rules had passed the impugned order of suspension.

2. Petitioner's case in brief is that his continued suspension is contrary to the rules and in violation of Notification dated 23.12.2003 issued by the Department of Personnel and Training (DOPT) and the Central Civil Services (Classification, Control and Appeal) Rules,1965. Petitioner contends that respondents having failed to carry out the reviews within the stipulated period of 90 days, the order of suspension could not be extended and is liable to be revoked in terms of the above Notification and rules.

3. Facts leading to the filing of the present writ petition may be briefly noted. Petitioner had joined the India Trade Promotion Organization (ITPO) as Deputy Manager in April,1983. He claims to have had an excellent service record and growth. He rose to the position of General Manager. He had been posted as the Resident Director of ITPO at Moscow office and was the recipient of prestigious "Peter the Great International Prize of Golden Steering Wheel" for his outstanding contribution in developing the economic co-operation between Russia and India.

4. That on a complaint filed by M/s Sidharth Logistics Co. Pvt. Ltd., a Clearing and Forwarding Agent of ITPO, FIR bearing No. RC-BA1/2003/A0042 under Section 109 IPC read with Section 7 of the Prevention of Corruption Act, was registered by the CBI against the petitioner and his relation one Ms.Mona Chopra. It is alleged that M/s Sidharth Logistics Co. Pvt. Ltd. had submitted a tender for empanelment as Handling and Clearing Agent. It is alleged that the said Ms.Mona Chopra on behalf of petitioner had demanded Rs. 13 lacs for him to get the issue of a complaint made against M/s Sidharth Logistics Co. Pvt. Ltd. by M/s Geologistics Frankfurt, sorted out and have the empanelment done. It is further claimed that Ms.Mona Chopra, relation of the petitioner was caught red-handed at Mumbai while demanding and accepting bribe on behalf of the petitioner. It was in these facts and in the contemplation of the disciplinary proceedings to be initiated, that the order of suspension was passed.

5. Petitioner, of course, professes innocence. In the present writ petition it is not necessary to comment on the merits or demerits of the allegations in the departmental case or the criminal prosecution of the petitioner and Ms.Mona Chopra as recommended by the CBI. The petitioner relies on the Notification dated 23.12.2003 and the Office Memorandum dated 7.1.2004 in terms of which the Review Committee was required to be constituted for continuing the suspension. The relevant Notification dated 23.12.2003 is reproduced hereinafter for facility of reference:-

Government of India

Ministry of Personnel, Public

Grievances and Pensions

(Department of Personnel and Training)

New Delhi, dated the 23rd December, 2003

Notification

G.S.R....... In exercise of the powers conferred by the proviso to the Article 309 and Clause (5) of Article 148 of the Constitution and after consultation with the Comptroller and Auditor General of India, in relation to persons serving in the Indian Audit and Accounts Department, the President hereby makes the following rules further to amend the Central Civil Services (Classification, Control and Appeal) Rules,1965, namely:-

1. (1) These rules may be called the Central Civil Services (Classification, Control, Appeal) Amendment Rules,2003.

(2) They shall come into force on the expiry of ninety days from the date of their publication in the Official Gazette.

2. in the Central Civil Services (Classification, Control and Appeal) Rules,1965, in rule 10, after sub-rules shall be inserted, namely:

"(6). An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke, the suspension, before the 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 exceeding one hundred and eighty days at a time.

(7) Notwithstanding anything contained in sub-rules, an order of suspension made or deemed to have been made under sub-rules (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."

Sd/-

(Smt.Prabha Mohan)

Director

(F.No. 11012/4/2003-Estt.(A))

To,

All Ministries/ Departments of the

Government of India."

6. The Office Memorandum dated 7.1.2004 is reproduced below for facility of reference:-

"No. 11012/4/2003-Estt.

Government of India

Ministry of Personnel, P.G. & Pensions

(Department of Personnel & Training)

New Delhi, dated the 7th January,2004

OFFICE MEMORANDUM

Sub: Suspension of Government Servants-Review of- Instructions reg.

The undersigned is directed to say that Rule 10 (Suspension) of the CCS (CCA) Rules,1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule,1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule shall be reviewed by the competent authority on recommendation of the Review Committee constituted for the purpose. It is also being provided in the Rules that an order of suspension made or deemed to have been under sub Rules (1) or (2) of Rule 10 shall not be valid after 90 days unless it is extended after review for a further period before the expiry of 90 days. It is further being provided that extension of suspension shall not be for a period exceeding 180 days at a time. (Copy of Notification is enclosed).

2. It is, therefore, necessary to constitute Review Committee(s) to review the suspension cases. The composition of Review Committee(s) may be as follows:-

I. The disciplinary authority, the appellate authority and another officer of the level of disciplinary/ appellate authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office, in a case where the President is not the disciplinary authority or the appellate authority.

II. The disciplinary authority and two officers of the level of Secretary/ Addl. Secretary/ Joint Secretary who are equivalent or higher in rank the disciplinary authority from the same office or from another Central Government ( in case another officer of same level is not available in the same office), in a case where the appellate authority is the President.

III. Three Officers of the level of Secretary/Addl.Secretary/Joint Secretary who are higher in rank than the suspended official from the same department/office or from the Central Government Department/Office (in case another officer of same level is not available in the same office), in a case where the disciplinary authority is not the President.

The administrative ministry/ department/ office concerned may constitute the review committees as indicated above on a permanent basis or ad hoc basis.

3. The Review Committee(s) may take a view regarding revocation/continuation of the case and also taking into account that unduly loan suspension, while putting the employee concerned to undue hardship involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing if the officer has been under suspension for one year without any charge being filed in the Court of law or no charge memo has been issued in prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the review committee may recommend the continuation of the suspension of the official concerned.

4. In so far as persons serving in the Indian Audit and Account Department are concerned, these instructions are issued in consultation with the Comptroller and Auditor General of India.

5. All Ministries/Departments are requested to bring the above instruction to the notice of all disciplinary authorities under their control and ensure that necessary Review Committees are constituted accordingly. It may also be impressed upon all concerned that lapsing of any suspension order on account of failure to review the same will be viewed seriously."

7. The Office Memorandum sets out the required composition of the Review Committee(s). The Memorandum also records that the Review Committee ought to keep into consideration that unduly long suspension, while putting the employee concerned to undue hardship, involves payment of subsistence allowance without the employee performing any useful service to the Government.

8. Petitioner's case is that the Notification is binding on the respondent undertaking and in terms thereof the review was required to be held before the expiry of ninety days from the order of suspension. Subsequent reviews were also required before the expiry of extended period of suspension.

9. The facts are not in dispute. The petitioner was suspended on 27.10.2003. The above notification was issued on 23.12.2003. If the ninety days period was to be reckoned even from the date of Notification, the first review was due on 22.3.2004. This review was not carried out on 22.3.2004. The first review by the constituted Committee of the respondent was carried out on 21.5.2004 i.e. nearly 150 days after the date of Notification. The second review even taking 90 days period from the date of first review was due on 20.8.2004. The second review was held on 29.10.2004 i.e. after a period of 162 days of the first review. Petitioner accordingly claims that in terms of sub-rule 10 of the CCS (CCA) Rules,1965 petitioner's suspension stands invalidated and petitioner is entitled to reinstatement.

10. I have heard Mr. K.T.S. Tulsi, Sr.Advocate, as also Mr. V. Hari Pillai in support of writ petition who have made submissions as noted above. It has been urged that the respondent has in pursuance to the DOPT Notification dated 23.12.2003 and the Memorandum issued thereafter on 7.1.2004 had acted and constituted the Review Committees. The said Notification and Memorandum are urged as binding on the respondent. The Notification and Memorandum itself enjoin the various Ministries and Departments to bring the instructions contained therein to the notice of all concerned disciplinary authorities under their control to ensure that Review Committees are constituted accordingly.

11. Mr. Raju Ramachandran, Sr.Advocate and Mr. V.K. Rao, appearing for respondents, in opposition to the writ petition submitted that the power to suspend is an inherent power. It is urged that the respondent has its own discipline rules known as ITPO Employees (Conduct Discipline and Appeal) Rules. The power to suspend is given in Rule 22 which is reproduced hereinafter for facility of reference. There is no time limit set within which the suspension is to be reviewed and failing which it would stand revoked.

"SUSPENSION

22 (1) The Appointing Authority of any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the Board of Directors by general or special order may place an employee under suspension:

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(b) where a case against him in respect of any criminal offense is under investigation or trial.

(2) An employee who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of detention, by an order of Appointing Authority, and shall remain under suspension until further orders.

(3) Where a penalty of dismissal or removal from service imposed upon an employee under suspension is set aside on 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 or removal and shall remain in force until further orders.

(4) Where a penalty of dismissal or removal from service imposed upon an employee 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 consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, the employee shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders.

(5) An order of suspension made or deemed to have been made under this Rule, may, at any time, be revoked by the Organisation which made or is deemed to have made the order of by any authority to which that authority is subordinate."

12. Learned Senior counsel, therefore, urged that CCS (CCA) Rules,1965 would not apply to respondents since it has its own rules. Amendment in the CCS (CCA) Rules,1965 has not been incorporated in the respondents ITPO Employees (Conduct, Discipline and Appeal) Rules under Rule 42. Accordingly the amendment in the CCS (CCA) Rules,1965 as brought about by the Notification of 23.12.2003 would not apply to the employees of ITPO as otherwise it would render Rule 42 otoise.

13. Having noted the facts as well as the relevant CCS (CCA) Rules,1965 and the amendments made thereto by the Notification of 23.12.2003, the short question which arises for consideration is:- whether the aforesaid Notification dated 23.12.2003 and the Memorandum dated 7.1.2004 are applicable to the employees of ITPO or not? While it is true that the ITPO has its own conduct rules known as ITPO Employees (Conduct, Discipline and Appeal) Rules and as a Public Sector Undertaking it has an element of autonomy in its administration, yet there is no denying that the ITPO being a Government Undertaking comes under the jurisdiction of the Central Vigilance Commission (CVC) and the directions issued by the DOPT which are made applicable to all Government Departments, Ministries and Undertakings, would also be applicable to ITPO. Rule 39 of the ITPO Employees (Conduct Discipline and Appeal) Rules reads as under:-

"MISCELLANEOUS"

39. Notwithstanding anything contained in these rules, the Central Vigilance Commission shall exercise jurisdiction over the employees of the Authority and the vigilance and anti-corruption rules/ instructions, order and clarifications on any corresponding rules, issued by the Central Vigilance Commission and the Government from time to time shall be applicable to the employees of the Authority.

14. The said rule makes instructions, orders and clarifications with regard to any corresponding rules issued by the CVC and the Government as well, applicable to ITPO. The rules starts with the non obstante clause:- "Notwithstanding anything contained in these rules.......". The provision is of wide amplitude and makes the above instructions, orders and clarifications by CVC as well as Government applicable. The Notification dated 23.12.2003 had been issued by the Government amending sub-rules 6 and 7 of Rule 10 of the CCS (CCA) Rules,1965. The said Notification is issued in the name of the President. The said Notification prescribes for review of suspension within a stipulated time frame and the procedure therefore. The records of the respondents had been called and perused. The records and processing of the case of suspension of the petitioner shows that the respondents were duly aware and in the knowledge of the Notification dated 23.12.2004 and the Office Memorandum dated 7.1.2004 issued pursuant thereto. In fact the respondents have constituted the Review Committee in accordance with the procedure laid down in the Memorandum and the case was reviewed by the Committee so constituted.

15. The learned senior counsel when confronted with this situation submitted that they had followed the amendments in sub-rules 6 and 7 and applied them in principle to their Department and had accordingly constituted the Committees but that does not bind them to the period of limitation within which the review was to be carried out as there is no such period in their rules.

I am unable to accept this contention. Rule 39 of the ITPO Employees (Conduct Discipline and Appeal) Rules, as noted earlier, itself provides that rules, instructions, orders and clarification on any corresponding rules issued by CVC or the Government would be applicable to the employees of the authority. The said Notification dated 23.12.2003 and the Office Memorandum dated 7.1.2004 would fall within the ambit of instructions, orders and clarifications issued by the Government. The respondents themselves have accepted the application of these rules by constituting the review committees in accordance with the said provisions. It is idle for the respondents to contend that while the review committees are constituted in accordance with the Memorandum and the amended rules, the provisions relating to time period for review, as provided under the CCS (CCA) Rules,1965 would not be applicable. The said contention is devoid of merit. Respondents having failed to review the petitioner's case for suspension within the stipulated period as noted above the suspension is liable to be revoked and is hereby revoked. Nothing stated herein before shall be taken as an expression of opinion on the merits of the petitioner's case and/or as curtailing the respondent's power of suspension, as permissible under the Rules.

The writ petition is allowed in the above terms.