Kuppum Venkatesh Srikanth @ ... vs The Indian Institute Of ...
2022 Latest Caselaw 2486 Gua

                                                                Page No.# 1/9

GAHC010187232021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/6136/2021

         KUPPUM VENKATESH SRIKANTH @ KUPPUM VENKATASH SRIKANTH
         S/O LATE KUPPAM SRINIVASACHAR VENKATASH, RESIDENT OF
         QUARTER NO. D-118, IIT GUWAHATI, PS CHANGSARI, DIST KAMRUP .
         ASSAM,
         ASSISTANT PROFESSOR (UNDER SUSPENSION) DEPARTMENT OF
         MATHEMATICS, IIT, GUWAHATI



         VERSUS

         THE INDIAN INSTITUTE OF TECHNOLOGY AND 3 ORS.
         REPRESENTED BY ITS DIRECTOR, IITG BORDER ROAD, AMINGAON,
         ASSAM, 781039

         2:THE DEAN OF FACULTY AFFAIRS

          INDIAN INSTITUTE OF TECHNOLOGY
          GUWAHATI
          IITG
          BORDER ROAD
          AMINGAON
          ASSAM
          781039

         3:THE REGISTRAR

          INDIAN INSTITUTE OF TECHNOLOGY
          GUWAHATI
          IITG
          BORDER ROAD
          AMINGAON
          ASSAM
          781039
                                                                                   Page No.# 2/9


            4:THE COMMITTEE FOR REVIEW OF SUSPENSION

             INDIAN INSTITUTE OF TECHNOLOGY
             GUWAHTAI
             REPRESENTED BY THE DEAN OF FACULTY AFFAIRS
             IIT
             GUWAHATI
             IITG
             BORDER ROAD
             AMINGAON
             ASSAM
             78103

Advocate for the Petitioner   : MR. N BORAH

Advocate for the Respondent : SC, IITG




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                           ORDER

26.07.2022 Heard Mr. N. Borah, learned counsel for the petitioner. Also heard Mr. R.P Kakoti, learned Senior Counsel assisted by Mr. S. Sutradhar, learned counsel for the IIT, Guwahati.

2. The issue to be decided in the present case, is as to whether a review of a suspension order is required to be made within 90 days, though a chargesheet is submitted within 90 days from the date of issuance of the suspension order.

3. The petitioner's case in brief is that the petitioner was suspended from service, vide suspension order dated 23.01.2019 with effect from 05.01.2019, in connection with Changsari P.S. Case No. 7/2019 under Section 354 (A) and 354 (B) IPC. Chargesheet was submitted by the police 8 (eight) days later, i.e. on 31.01.2019. The petitioner was arrested on 05.01.2019 and released on bail on 29.01.2019.

4. The petitioner's counsel submits that a review of the suspension order dated 23.01.2019 was undertaken by the respondents on 31.12.2019. As the decision of the Page No.# 3/9

Apex Court and the Division Bench of this Court in Ajay Kumar Choudhury Vs. Union of India & Another, reported in (2015) 7 SCC 291, and State of Nagaland & Ors. Vs. Chubanungsang Imchen & Another, reported in 2019 (5) GLT 444, have held that a review of a suspension order should be undertaken within 90 days from the issuance of the suspension order and the respondents not having done the same, the suspension order should be set aside.

5. Mr. R.P. Kakati, learned Senior Counsel for the IIT, Guwahati has brought the official records, in terms of the order dated 23.06.2022 passed by this Court. He submits that though the records show that the first review of the suspension order had been undertaken by the respondents on 31.12.2019, the letter dated 22.03.2019 issued by the Dean of Faculty Affairs, IIT, which is with regard to an appeal for reinstatement, states that the deemed suspension would continue to remain in force as per the provision of the CCS (CCA) Rules, 1965, even though the petitioner had been granted bail in the criminal case. He further submits that a reading of the proviso to Rule 10 (7) of the CCS (CCA) Rules, provides that once an order of suspension is extended by the first review undertaken within 90 days of the suspension order, further review is no longer required. He accordingly submits that the writ petition should be dismissed.

6. I have heard the learned counsels for the parties.

7. To decide the issue raised by the parties, Rule 10 (6) and (7) of the CCS (CCA) Rules, 1965 are reproduced below:-

"(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 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.

Page No.# 4/9

(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."

8. Rule 10 (6) of the CCS (CCA) Rules states that an order of suspension has to be reviewed by the authority constituted for the purpose, before the expiry of 90 days from the effective date of suspension order. It further states that subsequent reviews shall be made before expiry of the extended period of suspension and that extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.

9. In the case of Ajay Kumar Choudhury (supra), the Apex Court has held in para 21 that currency of a suspension order should not extend beyond three months, if within this period the Memorandum of charges/chargesheet is not served on the delinquent officer/employee. It also states that if the Memorandum of charges/chargesheet is served, a reasoned order must be passed for the extension of the suspension. Thus, in terms of the judgment of the Apex Court in Ajay Kumar Choudhury (supra), a reasoned order for extension of the suspension order was to be made even though chargesheet is filed within time. For a reasoned order to be passed, this Court is of the view that the respondent authorities were to take a conscious decision, for extending or revoking the suspension order, which would imply that a review of the suspension order would have to be undertaken by the concerned authority.

10. In the case of State of Nagaland & Ors. (supra), the Division Bench of this Court upheld the common judgment & order dated 19.03.2019, passed by the learned Single Judge in WP(C) No. 184 (K)/2018 and WP(C) No. 185 (K)/2018. In paragraph Page No.# 5/9

No. 17 and 22 of the judgment & order dated 19.03.2019 passed by the learned Single Judge in WP(C) No. 184 (K)/2018 and WP(C) No. 185 (K)/2018, it was recorded as follows:-

"17. It is an admitted fact that the CCS CCA Rules are applicable in toto to the employees working under the Government of Nagaland. Keeping the above fact in view, this Court will have to see whether the authorities have to undertake a periodical review of the suspension order within every fresh period of 90 days, even after a disciplinary proceeding is initiated or a charge-sheet is filed in a criminal proceeding.

22. Though there is nothing stated in black and white in Rule 10 of the CCS CCA rules with regard to the time limit for review of suspension order to take place, after filing of a charge-sheet in a criminal case or initiation of a departmental proceeding, the Apex Court in Ajay Kumar Choudhury vs. Union of India & Anr (supra) has categorically held that if the Memorandum of Charges/charge-sheet is served, a reasoned order must be passed for extension of the suspension order. Though the aspect of having a review of the suspension period of a delinquent officer, after the authorities have passed a reasoned order subsequent to serving a charge-sheet within each succeeding 90 days, is not explicitly laid down in the CCS CCA Rules and the judgments of the Apex Court and this Court, the observation made by the Apex Court in Ajay Kumar Choudhury vs. Union of India & Anr (supra) and Indian Institute of Technology & Anr vs. Aloke Kumar Ghosal & Anr (supra), implies that a periodical review of the suspension order should be undertaken by the authorities, within every subsequent 90 days, after the reasoned order is passed consequent to filing/serving of the charge-sheet."

11. The Division Bench of this Court in the case of State of Nagaland & Ors. (supra), considered the case of Ajay Kumar Choudhury (supra) and held that if within the period of three months from the date of issuance of the suspension order, memorandum of charges/chargesheet was served and the competent authority was of the opinion that the period of suspension should be continued beyond the period of Page No.# 6/9

three months, then also, a reasoned order should be passed for the extension of the period of the suspension order. It further held that where a public servant is placed under suspension in respect of any criminal offence, which is under investigation, enquiry or trial, periodical review for extension of the period of suspension was a necessity and should be made even after submission of a chargsheet in a criminal case.

12. With regard to the contention of the counsel for the respondents that a review of the petitioner's suspension order had been undertaken and the extension of the suspension order had been made vide letter dated 22.03.2019, this Court finds that even assuming that the letter dated 22.03.2019, allegedly extending the petitioner's suspension from 05.04.2019 was made on the basis of a review undertaken by an authority constituted for the said purpose, the extension of the suspension from 05.04.2019 would have come to an end on 04.10.2019, i.e., after 180 days. The review for further extension of the suspension was thereafter to be done prior to 04.10.2019. The next review having been done only on 31.12.2019, the same would not be in consonance with Rule 10 (6) of the CCS (CCA) Rules, which provides that the extension of a suspension shall not be for a period exceeding 180 days at a time.

On the other hand, the official records brought by the learned Senior Counsel for the respondents does not indicate that the letter dated 22.03.2019 is an extension of the petitioner's suspension order, made on the basis of any review committee, which was supposed to review the petitioner's suspension order dated 23.01.2019. As such, this Court is of the view that the letter dated 22.03.2019 cannot be accepted to be an extension of the suspension order, as there has been no review undertaken by the respondents, as can be seen from the official records.

13. The above being said, the respondents counsel has stated that in terms of the proviso to Rule 10 (7) of the CCS (CCA) Rules, once an order of suspension is extended by the first review within 90 days of the suspension order, further review is no longer required. This Court finds that the said issue has already been settled by the Division Bench of this Court in Indian Institute of Technology & Anr. Vs. Aloke Kumar Ghosal & Anr., reported in 2017 (5) GLT 132, wherein, the Division Bench Page No.# 7/9

of this Court has held that it would be incumbent upon the competent authority to carry out periodical reviews of a suspension order, either to revoke it or to extend it. In this regard, the operative portion of the judgment & order passed in Indian Institute of Technology & Anr. (supra) is reproduced below:

"The parent provision of sub-Rule (7) is in tune that what is stated in sub-Rule (6). Rather, it is in continuation of what is mandated under sub- Rule (6) by making it expressly clear in mandatory language that an order of suspension including an order of deemed suspension under sub-Rule(2) shall not be valid after a period of 90 days unless it is extended after review for a further period before expiry of 90 days. Though the proviso seeks to curve out an exception by saying that in case of a deemed suspension, no review of suspension would be necessary if the Government servant continues to be under suspension at the time of completion of 90 days of suspension, to our understanding and as already discussed above, the proviso cannot be construed to over-rule the provisions contained in the parent Rule. That is not the role assigned to a proviso, proviso cannot subsume the principal Rule. It is true that the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, the presumption is that but for the proviso, the enacting part of the section would have included the subject matter of the proviso. However, having said that, the general rule in construing an enactment containing a proviso is to construe them together without making either of them redundant or otiose. Accordingly, the proviso must be considered in relation to the main provision to which it stands as a proviso. [Please see Principles of Statutory Interpretation by Justice G.P. Singh, 14th Edition]. Therefore, if the language of the parent enactment is clear and unambiguous, and contains a particular provision leaving no room for any doubt, a proviso cannot be read to exclude such provision forming part of the subject matter of the parent enactment.

Therefore, the mandatory requirement of sub-Rule (7) cannot be Page No.# 8/9

made redundant or otiose by the proviso. This position infact is accepted by the Central Government in the office memorandum dated 07.01.2004, as extracted above, which clearly explains that an order of suspension made or deemed 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. Therefore, learned Single Judge having found that the subsequent review carried out on 19.10.2015 was after expiry of the extended period on 19.09.2015, held that the suspension was invalidated by sub-Rules (6) and (7).

Having said that we also feel that the interpretation sought to be given by Mr. Kakoti would lead to an absolute position contrary to the understanding of the Central Government itself, as extracted above. As explained by the Supreme Court in Ajay Kr. Choudhury (supra), suspension by its very nature is essentially transitory or temporary, it cannot be for an indeterminate period. Therefore, it would be incumbent upon the competent authority to carry out periodical review of suspension, either to revoke it or to extend it. If the interpretation sought to be given is accepted, it would lead to a situation where once the first review is carried out and the criminal proceeding continues, the authority would be denuded of its discretion to review continuation or otherwise of the period of suspension. It would mean that till the criminal trial continues, respondent No. 1 would have to suffer suspension. There cannot be any such absolute proposition of law to say that a Government servant facing criminal trial would have to continue under suspension till me criminal trial concludes."

14. At this stage, Mr. R.P. Kakati, learned Senior Counsel submits that an SLP has been filed against the decision of the Division Bench of this Court in Indian Institute of Technology & Anr. (supra) vide SLP (C) No. 1115/2018, which is still pending in the Supreme Court. In any event, as this Court has held that no review of the petitioner's suspension order had been undertaken within 90 days by the respondents, even though the petitioner had been released on bail on 29.01.2019, Page No.# 9/9

the proviso to Rule 10 (7) of the CCS (CCA) Rules is not applicable to the facts of this case.

15. As no review of the suspension order had been undertaken by the respondent authorities within 90 days from the date of the suspension order and as the said view is supported by the official records brought by the learned Senior Counsel for the respondents, wherein it is stated that review of the suspension order dated 23.01.2019 had been undertaken only on 31.12.2019, this Court finds that the suspension order cannot survive in terms of the Apex Court judgment in Ajay Kumar Choudhury (supra) and the Division Bench judgment of this Court in State of Nagaland & Ors. (supra). The suspension order dated 23.01.2019 is accordingly set aside. The respondents are directed to reinstate the petitioner immediately.

The writ petition is accordingly allowed.

JUDGE

Comparing Assistant