Dhavalkumar J Solanki S/O ... vs Chief Postmaster General
2023 Latest Caselaw 1941 Guj

    C/SCA/18871/2021                             JUDGMENT DATED: 28/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18871 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

================================================================

1    Whether Reporters of Local Papers may be allowed                 NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                          NO

3    Whether their Lordships wish to see the fair copy                NO
     of the judgment ?

4    Whether this case involves a substantial question                NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
           DHAVALKUMAR J SOLANKI S/O JERAMBHAI L SOLANKI
                             Versus
               CHIEF POSTMASTER GENERAL & 3 other(s)
================================================================
Appearance:
MR JOY MATHEW FOR RONITH JOY(9560) for the Petitioner(s) No. 1
MR. PARTH H BHATT(6381) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4
================================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 28/02/2023

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

1. By way of this petition under Article 226 & 227 of the

Constitution of India, the petitioner - original applicant before

the Central Administrative Tribunal (hereinafter referred to as

"the Tribunal") has challenged the order dated 09/11/2021

rendered by the Tribunal in OA No.4 of 2020, whereby the

Tribunal has rejected the application filed by the petitioner.

2. Heard learned advocate Mr.Joy Mathew for learned

advocate Mr.Ronith Joy for the petitioner and learned Standing

Counsel of Central Government Mr.Parth Bhatt for respondent

No.1.

3. Learned advocate for the petitioner submitted that the

petitioner joined the respondent Department as Postal

Assistant on 07/02/2011. On 22/03/2019, he was placed under

suspension. Thereafter, the departmental inquiry has been

initiated against the petitioner which is still pending. It is

submitted that on 22/03/2019 the petitioner was for the first

time placed under suspension and thereafter, vide

communication dated 26/06/2019 the respondent Department

extended the period of suspension from 17/06/2019 to

16/12/2019. Once again, the same was extended from

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

17/12/2019 to 13/06/2020. The petitioner filed OA No.4 of 2020

before the Tribunal wherein, the petitioner had prayed that the

Memo dated 22/03/2019 whereby, the petitioner was placed

under suspension and further extension of the period of

suspension be quashed and set aside and thereby, the

respondent Department be directed to reinstate the petitioner

in service with all consequential benefits. The petitioner also

prayed that the respondents be directed to pay difference of

25% subsistence allowance from 22/03/2019 till 21/09/2019.

3.1 Learned advocate submitted that by way of impugned

order dated 09/11/2021, the Tribunal has dismissed the

application filed by the petitioner and therefore, the petitioner

has filed the present petition.

3.2 Learned advocate for the petitioner has, at the outset,

referred the order of suspension issued by the respondent

Department on 22/03/2019, copy of which is placed on record

at page 48 of the compilation. It is submitted that the

petitioner was placed under suspension as per Rule 10(1) of

Central Civil Services (Classification, Control and Appeal)

Rules, 1965 (hereinafter referred to as "the Rules, 1965"). At

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

this stage, learned advocate for the petitioner submitted that

as per Rule 10(6) of the Rules, 1965 an order of suspension

shall be reviewed by the authority which is competent to

modify or revoke the suspension, before the expiry of 90 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.

3.3 At this stage, learned advocate for the petitioner has

relied upon the document which is produced on record at page

49 of the compilation. Learned advocate submitted that vide

communication dated 26/06/2019, the competent authority

has informed the petitioner that as per the provision of Rule 13

of Chapter - 2 of the Rules, 1965 the case of the petitioner has

been reviewed by the Review Committee for the payment of

subsistence allowance review of suspension. It is submitted

that the review was made after a period of 90 days and

therefore, the said review was not as per the provisions

contained in Rule 10(6) of the Rules, 1965. Learned advocate

therefore, urged that the Tribunal ought to have granted the

reliefs as prayed for by the petitioner on the said ground.

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

3.4 At this stage, learned advocate Mr.Mathew has placed

reliance upon the decision rendered by the Kerala High Court

in similar type of matter, copy of which is placed on record at

page 164 of the compilation. Learned advocate has referred

and relied upon paragraph nos.8, 10 and 11 of the said

decision of the Kerala High Court.

3.5 After referring to the same, it is submitted that as per the

said decision, the Review Committee of the respondent

Department was required to review the case of the petitioner

for extension of the suspension period for a period of 90 days,

as well as, the competent authority was required to extend the

period of suspension within the said period, however, in the

present case, the competent authority of the respondent

Department has failed to extend the period of suspension

within stipulated time and therefore, only on this ground, the

present petition is required to be allowed.

4. On the other hand, learned Standing Counsel Mr.Parth

Bhatt for respondent No.1 has vehemently opposed this

petition. Mr.Bhatt has referred to the averments made in the

affidavit-in-reply filed on behalf of respondent Nos.1, 2 and 3

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

and thereafter, referred to the documents produced on record

at page 149 of the compilation. Learned counsel Mr.Bhatt has

submitted that on 17/06/2019, the meeting of the Review

Committee was held in which it was decided to extend the

period of suspension of the petitioner. It is submitted that as

per the decision taken in the meeting, after reviewing the

whole situation, the Committee has decided to continue the

suspension of the petitioner for a further period of 180 days. It

is submitted that the said review was made prior to expiry of

the period of 90 days from 22/03/2019 and therefore, the

decision was already taken by the Review Committee as per

Rule 10(6) of the Rules, 1965 and thereby, no error is

committed by the respondent Department. At this stage, it is

pointed out by the learned counsel Mr.Bhatt that the said

aspect was already communicated to the petitioner by the

competent authority vide communication dated 26/06/2019.

Merely because the said communication was made after a

period of 90 days, does not mean that the decision was not

taken by the Review Committee within the stipulated period.

Learned counsel Mr.Bhatt therefore, urged that the Tribunal

has not committed error while dismissing the application

submitted by the petitioner.

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

4.1 Learned counsel Mr.Bhatt would thereafter submit that

the petitioner has for the first time taken the contention in the

rejoinder filed by him before this Court that the Disciplinary

Authority / competent authority has not taken the decision to

extend the period of suspension within stipulated time. Thus,

when the said contention has been taken for the first time in

the rejoinder, the Tribunal has not committed any error by not

examining the said aspect while dismissing the application

filed by the petitioner.

4.2 At this stage, learned counsel Mr.Bhatt also contended

that the Disciplinary Authority is part of the Review Committee

and therefore, when the Review Committee has taken the

decision to extend the period of suspension, it was not

necessary for the Disciplinary Authority to once again inform

the petitioner that suspension period has been extended by

the Review Committee. Learned counsel alternatively

submitted that the matter be remitted back to the Tribunal as

certain contentions are for the first time taken by the

petitioner before this Court.

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

5. We have considered the submissions canvassed by the

learned advocate appearing for the parties. We have also

perused the material placed on record. It would emerge from

the record that petitioner was placed under suspension vide

communication dated 22/03/2019, copy of which is placed on

record at page 48 of the compilation. Thereafter, the

Disciplinary Authority communicated to the petitioner on

26/06/2019 and in the said communication, the Disciplinary

Authority has stated as under :

"Shri D.J.Solanki, PA Surendranagar HO has been placed under suspension w.e.f. 22/03/2019 A/N.

As per provision of Rule-13 of Chapter - 2 of CCS (CCA) Rules, 1965 has case has been reviewed by the review committee for the payment of subsistence allowance review of suspension.

The Disciplinary proceeding under Rule-14 of CCS (CCA) Rules, 1965 has been initiated against him and the case is under progress. Therefore, it is decided that there is no need to vary the subsistence allowance and hence, "STATUS-QUO" be maintained for the period from 17/06/2019 to 16/12/2019 or finalization of disciplinary case, whichever is earlier."

6. At this stage, this Court would like to refer to the

provision contained in Rule 10(6) of the Rules, 1965, which

provides as under :

"Rule 10(6). An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

is 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."

7. From the aforesaid provision it can be said that the order

of suspension made under the Rules shall be reviewed by the

authority which is 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. Thus, on the basis of

recommendation made by the Review Committee, the

competent authority was required to extend the period fo

suspension within a period of 90 days.

8. Now, it is the case of the respondent Department that the

meeting of the Review Committee was held on 17/06/2019 i.e.

within a period of 90 days and in the said meeting, the case of

the petitioner was reviewed and it was decided to continue the

suspension of the petitioner for a period of 180 days. The

decision was also taken with regard to the subsistence

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

allowance paid to the petitioner. It is contended by the learned

counsel for the respondent Department that the Disciplinary

Authority / competent authority was one of the members of the

Review Committee and therefore, he was aware about the

decision which was taken in the meeting of the Review

Committee. Now, it is the case of the respondent Department

that the Disciplinary Authority pursuance to the decision taken

in the meeting by the Review Committee has merely

communicated on 26/06/2019, though after a period of 90

days, and informed the petitioner that there is no need to vary

the subsistence allowance and status-quo is to be maintained

for a period from 17/06/2019 to 16/12/2019. Learned counsel

Mr.Bhatt, during the course of hearing, has, for the first time

made submission before this Court that meaning of status-quo

means period of suspension is to be extended, however, the

respondent authority has not explained the same while filing

the affidavit-in-reply in the present proceedings.

9. This Court would like to examine the communication

dated 26/06/2019. If the said communication is carefully

examined, it reveals that the Disciplinary Authority has

nowhere referred the decision taken by the Review Committee

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

in its meeting held on 17/06/2019 that the Committee has

decided to extend the period of suspension for a period of 90

days. On the contrary, it has referred in the said

communication that there is no need to vary the subsistence

allowance. At this stage, this Court would like to refer the

communication dated 26/06/2019 made by the Assistance

Director (Staff & Vigilance) to the Disciplinary Authority i.e.

Superintendent of Post Office, Surendranagar Division, copy of

which is placed on record at page 90 of the compilation. In the

said communication, the Assistant Director has specifically

informed the Disciplinary Authority to communicate the

decision with regard to review of suspension to the officials

concerned i.e. the petitioner.

10. At this stage, this court would also like to refer to the

decision rendered by the Kerala High Court in case of Senior

Superintendent of Post Offices and others Vs. B.

Ramachandran, S/O.Balakrishnan Nair (Under

Suspension) decided on 08/04/2016, wherein the Kerala

High Court has observed in paragraphs 8, 9 and 11 as under :

"8. The contention of the petitioners is that, since the Review Committee had met and decided to continue the suspension within

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

the period of 90 days stipulated by the Rules, it was sufficient that, the order extending the suspension was passed at a later point of time, even after the expiry of the period of 90 days that has been stipulated. In the present case it is pointed out that, the Review Committee had decided on 18.08.2006 to extend the period of suspension, but the formal order extending the suspension was passed only on 13.10.2006. The delay in passing the formal order would not affect the validity of the extension of the order of suspension in any manner, it is contended by the petitioners.

9. However, we are not prepared to accept the above interpretation that is attempted to be placed on the Rule. As already noticed above, the role of the Review Committee constituted under the Rule is only to recommend whether the suspension was to be continued or not. The learned Assistant Solicitor General of India has put forward a contention that, the authority competent to suspend the employee was also a member of the Review Committee. However, we are not satisfied that the presence of the authority competent to suspend the employee on the Review Committee would improve matters in any manner, as the role of the Review Committee is only recommendatory in nature. As per the Rule, the duty to review the order of suspension within the period of 90 days that is stipulated and to pass orders either extending or revoking the suspension on the basis of the recommendation of the Review Committee, is cast on the authority competent to suspend the employee. Therefore, an omission on the part of the said authority to pass orders within the time limit stipulated would nullify the order of suspension. The above consequence is clearly set out in Rule 10(7), wherein it has been specifically provided that the order of suspension "shall not be valid after a period of 90 days unless it is extended after review, for a further period before the expiry of 90 days".

11. We notice that, we are supported in our above understanding of Rule 10(6) and (7) of the Rules by the decision of the Apex Court in Union of India and Others v. Dipak Mali [2010(2) SCC 222]. Altamas Kabir, J. (as he then was) has after considering the Rules, held as follows in paragraph 10 thereof:

"Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the Respondent and when the Petitioner's case came up for review on 20th October, 2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of Sub-

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

rules (6) and (7) of R.10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under Sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days."

The result of the above discussion therefore is that, unless an order of suspension is reviewed by the authority competent to suspend an employee, on the recommendation of the Review Committee constituted for the purpose and unless orders extending the period of suspension are passed within the period of 90 days stipulated therein, the order of suspension would not be valid. In other words, both the stipulations, namely, review of the suspension order by the competent authority as well as passing of the order either extending or revoking the period of suspension, are necessary to be satisfied within the period of 90 days stipulated by Rule 10(6)."

11. Thus, from the aforesaid decision rendered by the Kerala

High Court, it is clear that both the stipulations namely, review

of the suspension of the order by the competent authority as

well as passing of the order either extending or revoking the

period of suspension, are necessary to be satisfied within the

period of 90 days stipulated by Rule 10(6) of the Rules, 1965.

12. In the present case as discussed hereinabove, though the

decision was taken by the Review Committee in the meeting

held on 17/06/2019 to extend the period of suspension, the

same was not communicated by the Disciplinary Authority

within the stipulated time, and even after a period of 90 days

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

when the communication was made by the Disciplinary

Authority, there was no reference with regard to the decision

taken in the meeting by the Review Committee to extend the

period of suspension. On the contrary, it has been observed

that the case of the petitioner has been reviewed by the

Review Committee for payment of subsistence allowance

review of suspension.

13. The petitioner has specifically taken the contention

before the Tribunal in ground no.(F) that as per the law, the

Department was required to review the suspension order dated

22/03/2019 within 90 days of its issuance. In the present case,

admittedly, the Department reviewed the same on 26/06/2019.

14. Thus, in the facts of the present case, we are not inclined

to remit the matter back to the Tribunal as requested by the

learned counsel Mr.Bhatt for the respondent Department.

15. Looking to the overall facts and circumstances of the

present case, we are of the view that the impugned order

passed by the Tribunal is required to be quashed and set

aside. Accordingly, the present petition is hereby allowed. The

C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023

impugned order dated 09/11/2021 rendered by the Tribunal in

OA No.4 of 2020 is quashed and set aside. As the period of

suspension is not validly extended within the stipulated time

by the competent authority, the respondents are directed to

reinstate the petitioner in service on his original post and shall

permit him to discharge his duties with all consequential

benefits to follow. Rule is made absolute.

(VIPUL M. PANCHOLI, J)

(HEMANT M. PRACHCHHAK,J)

Dolly