Delhi High Court
Sh. G.L. Gupta vs Delhi Urban Shelter Improvement ... on 17 September, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.197/2012
% 17th September, 2013
SH. G.L. GUPTA ..... Petitioner
Through: Mr. Ankur Jain, Advocate.
Versus
DELHI URBAN SHELTER IMPROVEMENT BOARD ..... Respondent
Through: Mr. Parvinder Chauhan, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. In this writ petition, two reliefs are claimed by the petitioner
who was an employee of the respondent and who superannuated on
31.10.2011. First relief which is claimed is the challenge to the continuation
after 90 days of the suspension order dated 29.9.2010. Second relief which
is claimed is for release of terminal benefits of pension, commutation of
pension, gratuity and earned leave encashment alongwith interest accrued
thereon.
W.P.(C) No.197/2012 Page 1 of 6
2. Though, the first relief which is claimed as per the relief clause
in the writ petition, is the challenge to the suspension order dated 29.9.2010
itself, however what is argued before me on behalf of the petitioner is that
the petitioner questions the continuation of suspension after 90 days
inasmuch as no order was passed within a period of 90 days either by the
review committee or by the appropriate authority extending the suspension.
I have allowed the petitioner to so argue as there exists the requisite
averments in the writ petition. It is argued that when the second order of
suspension dated 20.6.2011 was passed, review committee had not
recommended for continuing of the suspension and review committee only
so recommended on the date of retirement of the petitioner vide order dated
31.10.2011.
3. At this stage, it would be relevant to reproduce the relevant rule
pertaining to suspension with its sub-Rules and the same reads as under:-
"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
W.P.(C) No.197/2012 Page 2 of 6
(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 and in regard to an 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.
xxxx xxxx xxxx xxxx
(5)(a) Subject to the provisions contained in sub-rule (7), 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 (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 competent to modify
or revoke the suspension, before expiry of ninety days from the
effective date of suspension, on the recommendation of the Review
W.P.(C) No.197/2012 Page 3 of 6
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-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 :
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."
4. A reference to aforesaid sub-Rules and more importantly sub-
Rules (6) and (7) show that for continuation of the suspension, suspension
has to be reviewed by the authority which is competent to modify or revoke
the suspension before 90 days of the order of suspension, and that also there
has to exist the recommendation of the review committee constituted for the
purpose. In the present case, admittedly no fresh order of suspension was
passed within 90 days of passing of the first order dated 29.9.2010.
Therefore, the period of suspension in terms of the order dated 29.9.2010
will come to an end after 90 days of passing of the order dated 29.9.2010
viz. on 27.12.2010. A reference to the second order of suspension dated
W.P.(C) No.197/2012 Page 4 of 6
20.6.2011 shows that admittedly there is no reference to any orders passed
by the suspension review committee enabling passing of this order dated
20.6.2011. Also, no copy of the order of the suspension review committee
entitling the competent authority to pass the suspension order dated
20.6.2011 has been filed before me.
5. The consequence of the facts as found and stated above would
be that the order dated 20.6.2011 would be invalid because before passing of
the order dated 20.6.2011 there had to be recommendation of the suspension
review committee and admittedly the suspension review committee had not
met and recommended the passing of the suspension order dated 20.6.2011.
Hence, it is held that the suspension of the petitioner would expire w.e.f
28.12.2010, and petitioner will be entitled to the consequential benefits from
the respondent taking the petitioner as not under suspension w.e.f
28.12.2010. The necessary monetary benefits be now paid to the petitioner
within a period of two months from today. The payments will be made to
the petitioner alongwith interest @ 5% per annum simple from the date from
which the amounts became payable till the amounts are actually paid.
6. That takes us to the issue of entitlement of the petitioner to
claim release of pension, commutation of pension, gratuity and earned leave
encashment etc.
W.P.(C) No.197/2012 Page 5 of 6
7. Counsel for the petitioner states that petitioner has not filed a
comprehensive petition in this regard and the petitioner seeks liberty to file a
fresh comprehensive petition to show the disentitlement of the respondent to
withhold the monetary benefits which are claimed in this writ petition.
Therefore without observing one way or the other on merits, the writ petition
is dismissed as withdrawn so far as the reliefs claimed of pension,
commutation of pension, gratuity and earned leave encashment are
concerned reserving liberty to the petitioner to file a comprehensive petition
as to the entitlement of the petitioner of the same and disentitlement of the
respondent to withhold the same.
8. Writ petition is accordingly disposed of with the aforesaid
observations.
SEPTEMBER 17, 2013 VALMIKI J. MEHTA, J.
Ne
