Government Of National Capital ... vs Mrs. Beena Mehra
2008 Latest Caselaw 2159 Del

*         HIGH COURT OF DELHI : NEW DELHI


+         Writ Petition (Civil) No. 8624 of 2007


                      Judgment reserved on: November 11, 2008

%                     Judgment delivered on: December 4, 2008


1.   Government of National Capital Territory of Delhi
     through its Chief Secretary
     Players' Building, I.P. Estate
     New Delhi

2.   Deputy Commissioner (South)
     M.B. Road, Saket
     Delhi                                           ...Petitioners

                      Through Ms. Avnish Ahlawat with Mr. Saurabh
                              Chadha, Ms. Nidhi Gupta and
                              Ms. Simran, Advocates

                      Versus

Mrs. Beena Mehra
W/o Shri Anil Mehra
R/o 933, Laxmibai Nagar
New Delhi                                            ...Respondent

Through Mr. Shyam Babu, Advocate

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

MADAN B. LOKUR, J

The question posed for our consideration is whether, after

revocation of a suspension order, passing a second suspension order

against the Respondent on the same day is permissible or not. Our

answer to the question is in the affirmative and in the given facts of the

case the second suspension order was validly passed.

2. The Respondent was working as a Naib Tehsildar and it was

alleged that she had accepted illegal gratification of Rs.10,000/- from a

complainant. The Anti Corruption Branch of the Delhi Government

arrested her and a First Information Report was lodged under the

Prevention of Corruption Act, 1988. Since the Respondent was in

custody for more than 48 hours, she was deemed to be under suspension

from 20th October, 2004 the date of her arrest. A formal order of

suspension was, however, passed in this regard only on 5th December,

2004.

3. In terms of the extant rules, the Respondent's suspension was

required to be reviewed after 90 days from the date of her deemed

suspension. Consequently, the review was required to take place before

20th January, 2005 but it was not held. Notwithstanding this, the

Respondent continued to be under suspension until her suspension was

formally revoked on 2nd May, 2006.

4. In the meanwhile, on 7th March, 2006 a departmental enquiry

was initiated against the Respondent for the alleged misconduct. It was

only thereafter that on 27th April, 2006 the Review Committee met to

consider the Respondent's suspension and as a result of the

deliberations, two orders were passed by the Petitioners on 2nd May,

2006. The first order formally revoked her suspension, since the

mandatory statutory review had not taken place within 90 days of her

deemed suspension. The second order placed her under suspension for a

period of 180 days with immediate effect.

5. The Respondent challenged her second suspension by filing

an Original Application before the Central Administrative Tribunal (the

Tribunal) which was registered as OA No.1451 of 2006. By the

impugned order dated 5th September, 2007 the Tribunal allowed her

Original Application and came to the conclusion that the second

suspension order was invalid on merits. However, the Tribunal left it

open to the Petitioners to take an appropriate administrative decision

with regard to her suspension keeping in mind the provisions of Rule

10(6) and 10(7) of the Central Civil Services (Classification, Control

and Appeal) Rules, 1965 [for short the CCS (CCA) Rules].

6. Two principal reasons were given by the Tribunal for

arriving at the conclusion that it did: firstly, there was no additional or

fresh material with the Review Committee warranting the Respondent's

second suspension; secondly, the provisions of Rule 10(6) and 10(7) of

the CCS (CCA) Rules were not complied with.

7. Before proceeding any further, it is necessary to refer to the

Rules upon which the Tribunal placed reliance. They read as under:-

"10. Suspension -

            (1)       xx                     xx                     xx

            (2)       xx                     xx                     xx

            (3)       xx                     xx                     xx

            (4)       xx                     xx                     xx

            (5)       xx                     xx                     xx

(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 made for a period 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."

8. In so far as the first principal reason given by the Tribunal is

concerned, namely, that there was no additional or fresh material before

the Review Committee to warrant the Respondent's suspension, it must

be noted that her first suspension lapsed or became invalid by operation

of law. This was through the application of Rule 10(7) of the CCS

(CCA) Rules inasmuch as the necessary review for extension of the

suspension did not take place within 90 days of the deemed suspension.

It is not as if the suspension was invalid on merits.

9. On the contrary, the basis on which the Respondent was

initially suspended continued and the original reason for placing her

under suspension remained. The revocation of her suspension was

nothing but the completion of a mere formality, the review postulated by

law not having taken place within the specified time limit.

Consequently, there was no necessity of any additional or fresh material

coming into existence for placing the Respondent under suspension for

the second time. The material available with the Petitioners, when they

placed the Respondent under suspension for the first time, was relevant

and live for her suspension.

10. It is worth mentioning that the Review Committee passed a

rather detailed order justifying the Respondent's suspension. The

Committee took note of the fact that a criminal offence of illegal

gratification was made out against the Respondent, under the Prevention

of Corruption Act and a case was registered against her in this regard. It

was also noted that the continuance of the Respondent in service under

these circumstances would seriously subvert discipline in the office and

would be against the wider public interest. Furthermore, a prima facie

case was made out against the Respondent justifying criminal

proceedings as well as departmental proceedings against her (which had

been initiated on 7th March, 2006). On an overall conspectus of all these

facts, the Review Committee was of the opinion that it was necessary to

place the Respondent under suspension with effect from 2 nd May, 2006.

11. In our view, the decision taken by the Review Committee is

neither irrational nor mala fide. It was taken in the exigencies of service.

It appears to us difficult to accept the proposition that the Petitioners

should be asked to permit a person to continue in office notwithstanding

an allegation of accepting illegal gratification and the pendency of

investigations into a criminal offence in this regard. No efficient or

effective administrative set up would permit this.

12. Learned counsel for the Respondent submitted that two

contradictory orders were passed on 2nd May, 2006: one revoking the

suspension of the Respondent and the second again placing her under

suspension. We do not find any contradiction in this. The revocation of

the Respondent's suspension was a mere formality and a foregone

conclusion because of the existence of Rule 10(7) of the CCS (CCA)

Rules. All that the Petitioners did was to merely perform a ministerial

act of putting its seal on the lapsing of the suspension order or the

invalidity of the continuance of the Respondent's suspension. The

second order no doubt required due application of mind by the

Petitioners. But, we have indicated above, there was full application of

mind to all relevant facts and it is only thereafter that the Respondent

was placed under suspension. We do not see any error in the Review

Committee taking both the decisions on the same day, one after the

other.

13. The second principal reason given by the Tribunal for its

conclusion is that the provisions of Rule 10(6) and 10(7) of the CCS

(CCA) Rules were not complied with. We do not find any procedural or

substantive requirement in the Rules for passing a second suspension

order. The Tribunal appears to have proceeded on the assumption that

the second suspension order was an extension of the first suspension.

Factually this was not so. The matter was considered afresh by the

Review Committee, which concluded that the Respondent's suspension

was warranted. It is then that the second suspension order was passed.

No procedural fault was pointed out with the decision taken to once

again place the Respondent under suspension.

14. Even otherwise, we are of the opinion that no hard and fast

rule can be laid down for deciding when an employee, whose

suspension is revoked, can be placed under suspension for a second

time. There is no doubt that such a decision should be taken with

circumspection, but the justification for the second suspension would

depend on the facts of each case. Rule 10(6) and 10(7) of the CCS

(CCA) Rules do not create any procedural or substantive bar for a

second suspension, as suggested by the Tribunal.

15. In U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv

Rajan, 1993 Supp (3) SCC 483 the Supreme Court expressed the view

that a suspension order can be passed a second time. "The first order

might be withdrawn by the authority on the ground that at that stage, the

evidence appearing against the delinquent employee is not sufficient or

for some reason, which is not connected with the merits of the case." In

the present case that we are concerned with, the first order of suspension

was revoked for a reason unconnected with the merits of the case.

Consequently, the Petitioners were entitled to suspend the Respondent

on the merits of the case.

16. A similar view was taken by a Full Bench of this Court in

Delhi Public School v. Director of Education, 100 (2002) DLT 530. In

that case, an employee of the Petitioner school was suspended but the

suspension was not approved by the Director of Education within 15

days as required by the Delhi School Education Act and the Rules

framed thereunder. The Full Bench held that if no decision is taken by

the Director of Education within the statutory period, the order of

suspension would lapse. But, the Full Bench went on to observe:

"However, that does not mean that if no decision is taken at all or the matter is unnecessarily delayed, it would not be

permissible for the Managing Committee of the school to insist the Director of Education to take a decision even after 15 days of the communication of the order of suspension. If such a decision is taken, though belatedly, the fresh order of suspension can always be passed."

This is precisely what has happened in the present case - the first order

of suspension lapsed, the Review Committee took a belated decision to

suspend the Respondent and a fresh order of suspension was passed.

The facts of Delhi Public School are quite apposite and relevant to the

facts of the present case.

17. Under the circumstances, since we do not agree with the

view expressed by the Tribunal, we have no option but to set aside the

impugned judgment and order. We do so.

18. It appears that since the order of the Tribunal was not

complied with, the Respondent had filed a contempt petition against the

Petitioners. By an order dated 21st November, 2007, this Court had

noted the statement of learned counsel for the Respondent that he would

not press the contempt petition. This interim arrangement has continued

till today and so we take it that the Respondent has not yet been

reinstated. In view of the above, the status quo will continue for the

time being and in the meanwhile, the Petitioners should review the

necessity of continuing the Respondent's suspension. The review should

be completed within a period of four months from the date of receipt of

this order.

19. The writ petition is allowed and the impugned judgment and

order is set aside. There will be no order as to costs.

                                               MADAN B. LOKUR, J



December 4, 2008                               SURESH KAIT, J
ncg
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