Shri M. Pheijao Singh vs ) The State Of Manipur
2021 Latest Caselaw 277 Mani

SHAMURAI   Digitally signed by
LATPAM     SHAMURAILATPAM
           SUSHIL SHARMA                                                     Page |1
SUSHIL     Date: 2021.11.16
           14:26:31 +05'30'
SHARMA                           IN THE HIGH COURT OF MANIPUR
                                           AT IMPHAL

                                        W.P.(C) No.688 of 2021

                        Shri M. Pheijao Singh, aged about 54 years, S/o late M.

                        Amu Singh of Awang Sekmai Bazar, P.O. & P.S. Sekmai

                        of Imphal West District, PIN-791536 functioning as Deputy

                        Director, TA & Hills (under suspension), Babupara near

                        Kuki Inn, Imphal PIN-795001.

                                                                        ---- Petitioner


                                               -VERSUS-


                        1)    The State of Manipur, represented by the Additional

                              Chief Secretary/ Principal Secretary/ Commissioner/

                              Secretary, Tribal Affairs & Hills, Government of Manipur,

                              Secretariat Complex, 795001.


                        2)    The Director, Tribal Affairs & Hills and Scheduled

                              Castes Department, Government of Manipur, PIN

                              795001.


                                                                   ----- Respondents.

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 Page |2

W.P.(C) No.379 of 2021

N. Kaikho Mao, aged about 59 years, S/O H. Nekhini Mao, resident of Song Song Village, Mao, P.O. & P.S. Mao, Senapati District, Manipur-795150.

---- Petitioner

-VERSUS-

1. The State of Manipur, through Additional Chief Secretary (Tribal Affairs & Hills), Govt. of Manipur, Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur-795001.

2. The Director, Tribal Affairs & Hills, Govt. of Manipur, Office of the Directorate of Tribal Affairs & Hills, Manipur, P.O. & P.S. Imphal, Imphal West District, Manipur- 795001.

---- Respondents

B E F O R E HON'BLE MR. JUSTICE MV MURALIDARAN

For the petitioners :: Mr. A. Romenkumar, Advocate in WP(C) No. 688 of 2021;

Mr. BP Sahu, Sr. Advocate in WP(C) No. 379 of 2021.

For the respondents :: Mrs. Ch. Sundari, GA in WP(C) No. 688 of 2021;

Mr. N. Kumarjit, AG in WP(C) No. 379 of 2021.

   Dates of hearing &
   Reserving Judgment
   & Order                     ::   28.10.2021 in




W.P.(C) No. 688 of 2021 and
W.P.(C) No. 379 of 2021
                                                               Page |3


                                   WP(C) No. 688 of 2021;

                                   27.10.2021 in
                                   WP(C) No. 379 of 2021

Date of Judgment & Order :: 15.11.2021

JUDGMENT & ORDER (CAV)

These writ petitions have been filed by the petitioners

seeking a writ of certiorarified mandamus to quash the suspension

order dated 25.2.2020 and its subsequent extension orders dated

23.5.2020 and 22.8.2020, respectively, and to direct the respondent

authorities to reinstate the petitioners to their former posts.

2. Since the suspension orders impugned and the

grounds for challenge are one and the same, both the writ petitions

are disposed of by this common order, albeit they have been

reserved on 27.10.2021 and 28.10.2021, respectively.

3. The case of the petitioner in W.P.No.688 of 2021 is

that while he was working as Deputy Director Tribal Affairs & Hills,

he was placed under suspension on 25.2.2020 and subsequently

on 23.5.2020, the suspension was extended for three months with

effect from 25.5.2020 and, again, on 22.8.2020 the said order of

suspension was extended for three months. Such extension expired

in the month of November, 2020. According to the petitioner, if

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 Page |4

further extension is required, it should be made before expiry of the

extension that is before the month of November, 2020. Since the

extension was not made before the expiry of the earlier extended

period, no further extension can now be made violating Rule 10(6)

and (7) of the Central Civil Services (CCA) Rules, 1965 and the

continuation of the impugned suspension order is illegal and the

same is liable to be set aside.

4. Similarly, the case of the petitioner in W.P.No.379 of

2021 is that while he was serving as Joint Director of Directorate of

Tribal Affairs & Hills, he was placed under suspension by invoking

the proviso to sub-rule (1) (a) of Rule 10 of Central Civil Services

(CCA) Rules, 1965 vide order dated 25.2.2020. Thereafter, his

suspension was extended for another three months with effect from

25.5.2020 on the recommendation of the Review Committee of the

Department and again, the same was extended for another three

months or for a period till his revocation whichever is earlier vide

order dated 22.8.2020. According to the petitioner, every order of

suspension has to be reviewed by the competent authority to modify

or revoke the suspension before expiry of 90 days from the effective

date of suspension on the recommendation of the Review

Committee. The specific case of the petitioner is that unless the

order of suspension is revoked or extended for further period by

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 Page |5

issuing necessary order on the recommendation of the Review

Committee within 90 days as provided under sub-rule (6) of Rule

10, such order of suspension ceases to exist after expiry of 90 days

as provided under sub-rule (7) of Rule 10. In the case of the

petitioner, the said period of 90 days expired on 20.11.2020 and as

such, the impugned order of suspension ceases to exist with effect

from 21.11.2020 as the order of suspension has neither been

reviewed nor revoked thereafter. It is also the case of the petitioner

that he has not been allowed to enjoy the subsistence allowance

since his suspension.

5. The respondents in W.P.No.379 of 2021 filed affidavit-

in-opposition stating that in connection with the withdrawal of

money, a disciplinary proceeding against the petitioner has been

contemplated and he has been kept under suspension vide order

dated 25.2.2020 and thereafter, vide order dated 10.6.2020, articles

of charges were framed in connection with the misappropriation of

Rs.29,67,61,143/- belonging to Tribal Affairs and Hills Department.

During the course of departmental proceedings, on 16.5.2020, in

order to review the suspension, a Review Committee was

constituted and on the recommendation of the Review Committee,

the suspension period of the petitioner was extended for another

period of three months. By the subsequent order dated 22.8.2020,

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 Page |6

the suspension period was again extended for another three

months or till revocation whichever is earlier. As such, the

suspension order of the petitioner was extended till the revocation

of the same.

6. It is stated in the affidavit-in-opposition filed by the

respondents that a new inquiry authority was required to be

appointed for completing the departmental enquiry in view of the

transfer and posting of the existing inquiry authority. In such

situation, by the order dated 28.9.2021, one Devesh Deval, IAS was

appointed as the inquiring authority for holding the inquiry into the

charges framed against the petitioner Kaikho Mao and another. It

is also stated that the charges framed against the petitioner are

serious in nature which may have a serious repercussion to the TA

& Hills Department and pecuniary loss of the State exchequer and

if the petitioner is reinstated as Joint Director in the Department,

then there may not be free and fair departmental inquiry. Hence,

prayed for dismissal of the writ petition.

7. No affidavit-in-opposition has been filed by the

respondents in W.P.No.688 of 2021.

8. Assailing the impugned suspension order, Mr. A.

Romenkumar, the learned counsel for the petitioner in W.P.No.688

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 Page |7

of 2021 submitted that on 25.2.2020 the petitioner Pheijao Singh

was placed under suspension pending departmental inquiry and

that on 23.5.2020, the said suspension order was extended for

three months on the recommendation of the Review Committee.

Thereafter, on 22.8.2020, the suspension order was again

extended for another three months and the said extension is made

without the recommendation of the Review Committee, however,

the same expired on 19.11.2020.

9. Mr. A. Romenkumar, the learned counsel further

submitted that under Rule 10(7) of the CCS (CCA) Rules,

suspension order issued under Rule 10(1) or 10(2) 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.

10. The learned counsel next submitted that the extension

of suspension dated 22.8.2020 was made without the

recommendation of the Review Committee and secondly, before

the expiry of 90 days, the suspension order is to be extended. But

in the case on hand, no such extension of suspension was made

so far. Thirdly, after the expiry of 90 days, the suspension order is

a dead letter and cannot be revived. In support of the said

submission, learned counsel placed reliance upon the following

decisions:

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 Page |8

(i) Okram Ibomcha Singh (Dr.) v. State of

Manipur and others, (2018) 2 NEJ 517

(Man.).

(ii) Takhellambam Bangkabihari Singh v.

State of Manipur and others, 2021 (2)

MnLJ 131.

(iii) Union of India and others v. Dipak Mali,

(2010) 2 SCC 222.

               (iv)    Ajay Kumar Choudhary v. Union of

                       India,    through   its   Secretary   and

                       another, (2015) 7 SCC 291.

11. Similarly, it is the submission of Mr. BP Sahu, the

learned senior counsel for the petitioner in W.P.No.379 of 2021 that

the petitioner Kaikho Mao was suspended on 25.2.2020 while he

was performing duty as Joint Director of Directorate of TA & Hills

Department and his suspension was extended for another three

months with effect from 25.5.2020 on the recommendation of the

Review Committee and that vide order dated 22.8.2020 again the

suspension was extended for another three months or till its

revocation whichever is earlier.

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 Page |9

12. Mr. B.P. Sahu, the learned senior counsel further

submitted that the order of suspension has to be either reviewed or

revoked on the recommendation of the Review Committee

constituted for the purpose before expiry of 90 days from the date

of placing under suspension of the employee or from the date of last

extension and if the said order of suspension is not reviewed and/or

extended for further period as provided under Rule 10(6), the order

of suspension ceases to exist after the expiry of 90 days in view of

Rule 10(7) of CCS (CCA) Rules. In the instant case, the respondent

authorities failed to extend the term of suspension of the petitioner

or revoke the said order as per the prescribed procedure, but

extended the time by another three months vide order dated

22.8.2020 and that thereafter, no order for extension of the

suspension was issued till date and thus, the impugned suspension

orders cease to exist after the expiry of 90 days i.e., after

20.11.2020.

13. The specific argument of the learned counsel for the

petitioner is that non-revocation of the order of suspension though

the order of suspension was not extended within the period of 90

days is very frequent in the State of Manipur for which number of

writ petitions of such category are filed by the persons whose order

of suspension have not been revoked for a long time by assailing

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 10

the order of suspension in view of the provisions of Rule 10(6) and

(7) of the CCS (CCA) Rules. In support, the learned counsel placed

reliance upon the judgment and order of a Division Bench of

Gauhati High Court dated 30.7.2021 passed in Writ Appeal No.28

of 2021.

14. Per contra, Mr. N. Kumarjit, the learned Advocate

General appearing for the respondent State, submitted that the

suspension order of the petitioners was extended again for another

three months or till revocation whichever is earlier by the Review

Committee on 22.8.2020. The main argument of the learned

Advocate General is that the State Government has issued the

suspension order in exercise of the power conferred under Rule

10(5)(b) to the effect that the Government servant shall continue to

be under suspension until the termination of all or any of the

proceedings.

15. Mr. N. Kumarjit, the learned Advocate General further

submitted that the writ petitions are liable to be dismissed on the

ground of suppression, misstatement or distortion of relevant facts.

He would submit that the Government had constituted a Review

Committee to review the suspension of the petitioners and had

recommended for extension of the suspension period of the

petitioners from time to time and, therefore, there is no merit in the

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 11

argument of the learned counsel for the petitioners that no Review

Committee recommended for extension of the suspension order.

16. This Court considered the submissions made by

learned counsel appearing on either side and also perused the

material available on record.

17. The meat of the matter revolves around Rule 10 of the

Rules, 1965 and in particular, of sub-rule (6) read with sub-rule (7)

on the one hand and sub-rule (5)(b) on the other. In order to

appreciate the contentions of the respective learned counsel, Rule

10 of the CCS (CCA) Rules is reproduced herein below:-

"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

(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

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 12

(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 in regard to as 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.

(2) A Government servant shall be deemed to have been place under suspension by an order of Appointing Authority -

(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty- eight hours;

(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 13

EXPLANATION.- The period of forty-eight hours referred to in Clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.

(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in 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, removal or compulsory retirement and shall remain in force until further orders.

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant 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 a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 14

Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.

(5)(a) Subject to the provisions contained in sub- rule (7), any 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

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 15

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 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. 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-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.

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

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 16

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."

18. From the submissions raised by the respective

learned counsel, the following points fall for consideration:

(1) Whether the orders of suspension

impugned in these writ petitions are valid in

the eye of law?

(2) In the absence of any review before the

expiry of 90 days, whether the extension of

the suspension period by the respondent

authorities vide order dated 22.8.2020 is

legally valid?

(3) Whether the respondent authorities are

entitled to keep the petitioners under

suspension for a prolonged period by

violating Rule 10(6) and Rule 10(7) of the

CCS (CCA) Rules, 1965?

19. Prima facie, it appears that both the writ petitions are

filed challenging the prolonged suspension. Though initially the

impugned suspension was reviewed, the later extension dated

22.8.2020 was issued without the recommendation of the Review

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 17

Committee. The above said facts need to be discussed in this order

and, accordingly, this Court proceeds to deal with the said aspect

of the matter.

20. A disciplinary proceeding has been contemplated

against the petitioners in connection with the malversation of an

amount of Rs.29,67,61,143/- belonging to the Tribal Affairs and Hills

Department and as such in exercise of the powers conferred by

Rule 10(1)(a) of CCS (CCA) Rules, the petitioners were placed

under suspension on 25.2.2020. At the time of issuing the

impugned suspension order, the petitioner in W.P.No.688 of 2021

was serving as the Deputy Director of Directorate of TA & Hills

Department while the petitioner in W.P.No.379 of 2021 was serving

as the Joint Director of the same department. Thereafter, on the

recommendation of the Review Committee of the Department, the

suspension order was extended for three months with effect from

25.5.2020. The suspension order dated 25.2.2020 and the

extension order dated 23.5.2020 have been issued to the

petitioners separately by the Additional Chief Secretary (TA & Hills),

Government of Manipur. Thereafter, on 22.8.2020, the Additional

Chief Secretary (TA & Hills), Government of Manipur, passed an

order extending the period for another three months or till their

revocation whichever is earlier.

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 18

21. For proper appreciation, the extension order of the

Additional Chief Secretary (TA & Hills) is extracted hereunder:

"No.1/64/2020-TA&Hills (Pt:4): Whereas Shri

N.Kaikho Mao, Joint Director (TA&H), Manipur

and Shri M.Pheijao Singh, Deputy Director

(TA&H), Manipur were placed under

suspension vide Order No.1/64/2020-

TA&HILLS dated 25th February, 2020.

2. Whereas, Shri R.K.Dinesh Singh (IAS),

Commissioner, Departmental Enquiry,

Manipur has been appointed as the Inquiry

Authority to inquire into the charges framed

against them.

3. Now the Governor of Manipur is pleased to

order that the suspension period of Shri

N.Kaikho Mao, Joint Director (TA&H), Manipur

and Shri M.Pheijao Singh, Deputy Director

(TA&H), Manipur is extended for another

(three) months or till their revocation

whichever is earlier."

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 19

22. Admittedly, on 22.8.2020, the Additional Chief

Secretary (TA&H) has issued further extension of suspension order

dated 25.2.2020 without the recommendation of the Review

Committee. In this regard, sub-rule (6) of Rule 10 of the CCS (CCA)

Rules provides that 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 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, it is clear that 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.

23. It is apposite to note that under sub-rule (7) of Rule 10

of CCS (CCA) Rules, suspension order issued under sub-rule (1)

or (2) of Rule 10 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.

24. The provisions of Rule 10(6) and (7) of CCS (CCA)

Rules are lucid and it postulates that an order of suspension made

or deemed to have been made under the rules shall be reviewed by

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 20

the competent authority to modify or revoke the suspension, before

expiry of 90 days from the date of order of suspension and if the

said order of suspension is not reviewed/extended for further period

as provided under sub-rule (6), the order of suspension shall cease

to exist after expiry of 90 days in view of proviso to sub-rule (7) of

Rule 10 of CCS (CCA) Rules.

25. In the case on hand, by the order dated 22.8.2020, the

Additional Chief Secretary has simply extended the period for

another three months or till their revocation whichever is earlier and

the said extension of three months expired on 19.11.2020.

26. At this juncture, Mr. N. Kumarjit, the learned Advocate

General submits that the suspension order of the petitioner was

extended for another three months or till revocation, whichever is

earlier, by the Review Committee vide order dated 22.8.2020 and

therefore, the question of further extension does not arise. The said

argument of the learned Advocate General cannot be

countenanced since sub-rule (7) of Rule 10 clearly states that an

order of suspension made or deemed to have been made shall not

be valid after a period of ninety days unless it is extended after

review. Thus, the period can be extended by the concerned

authority only after review made by the constituted Review

Committee. In the instant case, it is clear that the extension of

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 21

suspension order dated 22.8.2020 was made without the

recommendation of the Review Committee and also there is no

indication in the order dated 22.8.2020 as to the convening of any

meeting or any discussion held in such regard.

27. In Okram Ibomcha Singh (supra), this Court held as

under:

"6. It is not in dispute that Rule 10(1) confers power upon the appointing authority or any other competent authority mentioned therein to issue order of suspension against a Government servant but it may be noted that the order of suspension can be issued only in respect of three circumstances - one, where a disciplinary proceeding against him is contemplated or is pending; two, where he has engaged himself in activities prejudicial to the interest of the security of the State and three, where a case against him in respect of any criminal offence in under investigation, inquiry or trial. Sub-rule (6) provides that an order of suspension shall be reviewed by the competent authority either to modify or revoke the same before the expiry of ninety days from the effective date of the order of suspension.

Such a review shall be done only on the recommendation of the Review Committee constituted for that purpose. Subsequent

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 22

reviews shall be made before the expiry of extended period of suspension and extension of suspension shall not be for a period exceeding one hundred eighty days at a time. Sub-rule (7) provides that an order of suspension made under sub-rule (1) or (2) shall not be valid after the expiry of ninety days unless it is extended after review for a further period before the expiry of ninety days. Sub- rule (5)(b) confers power upon the competent authority to direct that the government servant shall continue to be under suspension until the termination of all or any of such proceedings. This power can be exercised by the competent authority after two conditions being fulfilled -

               one,    where    a   Government      servant    is
               suspended       or   deemed    to   have    been

suspended in connection with a disciplinary proceeding or otherwise and two, where any other proceeding is commenced against him during the continuance of that suspension. For exercising the power under the sub-rule (5)(b), reasons are to be recorded by the competent authority."

28. In Takhellambam Bangkabihari Singh (supra), this

Court held:

"12. As the last extended period of suspension of the petitioner expired on 15.12.2020 and as the authority did not taken up any steps for

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 23

extending the period of suspension of the petitioner thereafter, this Court is constraints to hold that by operation of law as provided under Rule 10(7) of the CCS (CCA) Rules, the impugned suspension order is no longer valid and the petitioner cannot be placed under suspension any longer."

29. In Dipak Mali (supra), the Hon'ble Supreme

Court held:

"10. 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-rules (6) and (7) of Rule 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.

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 24

11. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985 speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of Sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension."

30. In Ajay Kumar Choudhary (supra), the Hon'ble

Supreme Court held:

"11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 25

based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.

12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 26

accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of Common Law Jurisprudence, antedating even the Magna Carta of 1215, which assures that -- "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.

.......

21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 27

person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."

31. The learned counsel for the petitioners also by placing

reliance upon the orders of this Court in W.P.(C) No.1032 of 2014,

dated 11.3.2015 and W.P.(C) No.838 of 2016, decided on

27.1.2020 submit that an order of suspension made under Rule 10

shall be reviewed by the competent authority before the expiry of

90 days. In the aforesaid decisions, this Court held that "an order

of suspension made under the Rule shall be reviewed by the

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 28

authority which is competent to modify or revoke the suspension

order before the expiry of 90 days from the effective date of

suspension and only on the recommendation of the Review

Committee constituted for the purpose, the order of suspension can

be extended not exceeding 180 days at a time."

32. From the above, it is clear that an order of suspension

made or deemed to have been made by the competent authority

can either be extended under sub-rule (6) or continued under sub-

rule 5(b). As regards the sub-rule 5(b), an order of suspension can

be continued by the competent authority only when the following

two conditions are fulfilled:

               (i)    Where     a     Government         servant      is

                      suspended or deemed to have been

                      suspended       in     connection      with      a

disciplinary proceedings or otherwise; and

(ii) Where any other proceeding is

commenced against him during the

continuance of that suspension. For

exercising the power under sub-rule 5(b),

reasons are to be recorded by the

competent authority.

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33. Thus, the first condition stipulates that the order of

suspension shall be in connection with any disciplinary proceeding

or otherwise. The expression "otherwise" is significant and refers

to an order of suspension made not in connection with a disciplinary

proceeding, but made under sub-rule (1) (aa) or (b) of Rule 10. The

second condition talks about any other disciplinary proceeding

which is commenced against the Government servant during the

continuance of that suspension. The expression "other" indicates

that the proceeding mentioned therein is different from and shall be

in addition to the disciplinary proceeding mentioned in the first

condition. The expression "continuance of that suspension" has

significant meaning to the effect that while the competent authority

exercises power under sub-rule 5(b) for the order of suspension to

be continued by it, it ought to have been in continuance of an

original order of suspension. Thus, the order of suspension which

has become invalid under sub-rule (7) of Rule 10, cannot be

continued under sub-rule (5)(b). In other words, an order of

suspension which is not valid, cannot be continued by the

competent authority.

34. The conjoint reading of sub-rule (7) of Rule 10 and

sub-rule 5(b) of Rule 10 of CCS (CCA) Rules makes it clear that an

order of suspension which has become invalid under sub-rule (7)

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 30

for want of extension within time as prescribed therein, cannot be

continued by the competent authority in exercise of power under

sub-rule 5(b) of Rule 10.

35. The wordings in sub-rule (7) are simple and require no

interpretation at all in the sense that it simply provides that an order

of suspension, if not reviewed and extended for further period

before the expiry of ninety days, shall not be valid. In the case on

hand, the petitioners were placed under suspension on 25.02.2020

and since the review had not been conducted while extending for

three months vide order dated 22.08.2020 as required under the

provisions of sub-rule (7), the extension order dated 22.8.2020 has

become invalid.

36. The decision of the Hon'ble Supreme Court in the case

of Dipak Mali (supra) emphatically lays down that if the review had

not been conducted within 90 days from the date of suspension, it

becomes invalid after 90 days. Neither was there any review nor

extension within the said period of 90 days. Subsequent review and

extension, could not revive the order which had already become

invalid after the expiry of 90 days from the date of suspension.

37. Admittedly, in the case on hand, the first extension

dated 23.5.2020 was made on the recommendation of the Review

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Committee giving effect from 25.5.2020, however, the subsequent

extension vide orders dated 22.8.2020 was made without the

recommendation of the Review Committee. Since the subsequent

extension dated 22.8.2020 is not based on the Review Committee's

recommendation, the extension orders dated 22.8.2020 do not hold

water.

38. Admittedly, the extension of suspension issued by the

order dated 22.8.2020 for three months expired in the month of

November, 2020 and no further extension based on the

recommendation of the Review Committee had been issued by the

competent authority so far. The rule is that before the expiry of 90

days, the suspension order is to be extended. But in the present

case, as stated supra, no such extension of suspension period was

made.

39. The reason for non-extension stated by the

respondent authorities that since the suspension orders of

petitioners were extended till the revocation of the same and that

the question of further extension would not arise, runs counter to

the statutory provision inasmuch as such extension was granted

without the recommendation of the Review Committee. Thus, as

rightly argued by the learned counsel for the petitioners, after the

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expiry of 90 days the suspension orders in the case on hand are

nothing but dead letters and cannot be revived.

40. The learned counsel for the petitioners submit that the

prolonged suspension was against the decision of the Hon'ble

Supreme Court in the case of Ajay Kumar Choudhuary (supra),

which held that:

"Currency of a suspension order should not extend

beyond three months if within this period the

memorandum of charges/charge-sheet is not

served on the delinquent officer/employee; if the

memorandum of charges/charge-sheet is served,

a reasoned order must be passed for the

extension of the suspension."

41. As per the dictum laid down by the Hon'ble Supreme

Court in the case of Ajay Kumar Choudhuary (supra), the

suspension order requires to be reviewed before expiry of 90 days

and the subsequent review must also be made before expiry of

extended period of suspension and if the said exercises are not

undertaken, such suspension order will be liable to be set aside.

42. It is to be noted at this stage that on 5.7.2021, the

petitioner in W.P.No.688 of 2021 submitted a representation to the

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Additional Chief Secretary (TA & Hills) to revoke the impugned

suspension and the subsequent extension and also demanded for

performance of duty, but the same has not been considered by the

said authority till date.

43. Taking through the said representation of 5.7.2021,

the learned counsel for the petitioner in W.P.No.688 of 2021

submitted that a special audit has been carried by the Special Audit

Team constituted in the Directorate of Local Fund Audit to carry out

inspection to detect the fraudulent withdrawal of money in the

Department of TA & Hills and that the Special Audit Team has

carried out full inspection with effect from 4.2.2021 and submitted

its finding on 24.6.2021 and at the conclusion of the finding at

Clause (c), it has been clearly recommended to revoke the

suspension order of the petitioner. Thus, the learned counsel

prayed that in view of the recommendation made by the Special

Audit Report, coupled with the provisions of the Rules of 1965 and

also the decisions of the Hon'ble Supreme Court referred to above,

the suspension order dated 25.2.2020 and its subsequent

extensions are to be revoked under Rule 14 of the CCS (CCA)

Rules without prejudice to the pending departmental enquiry as a

part of the compliance of the recommendation in letter and spirit as

the other recommendation made by the Special Audit Team has

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 34

been complied with. The receipt of the said representation has not

been denied by the respondent authorities. Since the respondent

authorities failed to act on the representation dated 5.7.2021, the

petitioner has approached this Court. However, the merits of the

matter cannot be decided at this stage since as stated supra,

whether the prolonged suspension of the petitioners is valid or not

is the question. As held supra, the extension made without the

recommendation of the Review Committee cannot stand in the eye

of law.

44. It is well settled that the protracted period of

suspension, repeated renewal thereof, have regrettably become the

norm and not the exception that they ought to be.

45. It is also well settled that the suspended person is

suffering the ignominy of insinuation; the scorn has to endure the

excruciation even before he is formally charged with same

misdemeanors, indiscretion or offence. His torment is his

knowledge that if and when charged, it will inexorably take an

inordinate time for the inquisition or inquiry to come to its

culmination, that is to determine his innocence or inequity.

46. This Court is of the view that the present writ petitions

are squarely covered by the law laid down by the Hon'ble Supreme

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 35

Court in the cases of Dipak Mali (supra) and Ajay Kumar Choudhary

(supra).

47. As the last extended period of suspension of the

petitioners expired on 22.08.2020 and as the concerned authority

did not take up any steps for extending the period of suspension of

the petitioners thereafter based on the recommendation of the

Review Committee, this Court is constrained to hold that by

operation of law as provided under sub-rule (7) of Rule 10 of the

CCS (CCA) Rules, the impugned suspension orders dated

25.2.2020 issued against the petitioners are no longer valid and

resultantly, the petitioners cannot be placed under suspension any

longer.

48. Qua non-grant of subsistence allowance to the

petitioner in W.P.No.379 of 2021 is concerned, it is undoubtedly

clear that as per provisions of FR 53, a Government servant under

suspension shall be entitled to subsistence allowance at an amount

equal to the salary which the Government servant would have

drawn if he had been on leave on half average pay or half pay and

in addition, Dearness Allowance, if admissible on the basis of such

leave salary.

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021 P a g e | 36

49. The argument advanced by the learned Advocate

General is that since the petitioner had not furnished the certificate

to the effect that he was not employed anywhere during the period

of suspension, the subsistence allowance could not be given to him.

If that be so, the petitioner in W.P.No.379 of 2021 can be directed

to furnish such certificate and on receipt thereof, the respondent

authorities shall grant the subsistence allowance to him.

50. In view of the foregoing discussion, this Court finds

merit in the submissions of the petitioners and the impugned

suspension orders dated 25.2.2020 are accordingly liable to be set

aside and the writ petitions are to be allowed.

51. In the result,

a) both the writ petitions are allowed.

b) the impugned suspension order dated

25.02.2020 is set aside.

c) the respondents authorities shall treat that the

petitioners have been reinstated in service with

effect from 20.11.2020 with all consequential

benefits.

d) the said exercise shall be done within a period

of 4 (four) weeks from the date of receipt of a

copy of this order. No costs.

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52. Registry is directed to issue copy of this order to both

the parties through their WhatsApp/e-mail.

JUDGE

FR/NFR Sushil

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