Sri Salil Jamatia vs The State Of Tripura
2021 Latest Caselaw 534 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA

                            WP(C) No.72/2021
Sri Salil Jamatia, S/O-Sri Satish Chandra Jamatia, Resident of Village-Dasu
Chandra Para, P.O-Hadrai, P.S-Teliamura, Tripura.
                                                           ----Petitioner(s)
                                        Versus

1. The State of Tripura, To be represented by the Principal Secretary,
Department of Power, Govt. of Tripura, Agartala, New Secretariat Building,
Kunjaban, P.S.-New Capital Complex, Agartala, West Tripura, PIN-799010.

2. The Joint Secretary to the Govt. of Tripura, New Secretariat Building,
Kunjaban, P.S.-New Capital Complex, Agartala, West Tripura, PIN-799010.

3. Tripura State Electricity Corporation Limited, (A Govt. of Tripura
Enterprise), To be represented by its Chairman cum Managing Director,
Banamalipur, Agartala, West Tripura, PIN-799001.

4. The Chairman cum Managing Director, Tripura State Electricity
Corporation Limited, (A Govt. of Tripura Enterprise), Banamalipur, Agartala,
West Tripura, PIN 799001.

5. The Additional General Manager, TSECL, Electrical Circle-Unakoti,
Kumarghat, Unakoti, Tripura.
                                                 -----Respondent(s)

For Petitioner(s) : Ms. Aradhita Debbarma, Advocate.

For Respondent(s) : Mr. Nepal Majumder, Advocate.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Date of hearing and judgment : 23rd April, 2021.

      Whether fit for reporting         : NO.





                     JUDGMENT & ORDER (ORAL)

Heard learned counsel for the parties for final disposal of the

petition.

2. The petitioner has prayed for quashing an order of suspension

dated 05.09.2019 passed by the Joint Secretary of Government of Tripura,

Power Department. He has also prayed for a direction to pay subsistence

allowance at increased rate of 75% after completion of a period of six months

from the date of the suspension. These prayers arise in following background:

3. The petitioner is holding the post of Assistant Engineer

(Electrical) under the Department of Power, Government of Tripura. In the

year 2019, he was sent on deputation to Tripura State Electricity Corporation

Limited (TSECL, for short) as Deputy General Manager, Electrical Division,

Kailashahar, Unakoti. While on deputation, the Joint Secretary of

Government of Tripura passed an order dated 05.09.2019 placing the

petitioner under suspension in exercise of powers under Rule 10(1)(a) of CCS

(CCA) Rules as adopted by the State of Tripura. Though this order does not

state so, this was in contemplation of a departmental inquiry.

4. The case of the petitioner is and with respect of which the

respondents have raised no dispute that since passing the order of the

suspension so far no departmental inquiry has been instituted by issuance of a

charge-sheet, the order of suspension has not been reviewed by the competent

authority nor the petitioner's subsistence allowance enhanced. In this

background, the petitioner has prayed for quashing of the order of suspension

for want of mandatory review within the prescribed time and for payment of

subsistence allowance at an enhanced rate after completion of 180 days of

suspension.

5. Learned counsel Ms. Aradhita Debbarma for the petitioner drew

my attention to Rule 10 of CCS (CCA) Rules and in particular, sub-rules (6)

and (7) thereof and contended that:

Since the suspension of the petitioner was not reviewed by the

competent authority within 90 days of the date of suspension, as provided in

sub-rule (6) of Rule 10 of the CCS (CCA) Rules, the order of suspension

would automatically stand revoked upon completion of the said period of 90

days.

In this respect, she relied on a decision of Supreme Court in case

of Union of India and others vrs. Dipak Mali reported in (2010) 2 SCC 222.

She pointed out that this decision in case of Dipak Mali (supra) was referred

by this Court in case of Swapan Kumar De vrs. Tripura Tribal Areas

Autonomous District Council, Tripura and others [WP(C) No.18 of 2018

decided on 10.05.2018] to quash the order of suspension under similar

circumstances.

6. Learned counsel for the respondents submitted that on account of

corona pandemic the authorities could not undertake the review of the order

of suspension of the petitioner. His representations for enhancing the rate of

subsistence allowance also for the same reason could not be decided. Learned

counsel for the respondents drew my attention to a decision of the Single

Judge of this Court in case of Uttam Das Baishnab vrs. The State of Tripura

and others [WP(C) No.562 of 2020 decided on 29.01.2021] in which looking

to the serious situation arising out of the corona pandemic this Court had

refused to quash an order of suspension which was not reviewed within the

prescribed period.

7. Relevant facts are not in dispute. The petitioner was placed under

suspension on 05.09.2019. Within 90 days thereof or any time thereafter till

date the competent authority has not reviewed his suspension. Thus all along

his suspension continued without any review at the hands of the competent

authority. In the meantime, even after completion of 180 days from the date

of suspension, his subsistence allowance has not been increased.

8. In view of such facts, we may refer to the statutory provisions

applicable. Rule 10 of CCS (CCA) Rules pertains to suspension. Sub-rule (1)

of Rule 10 authorizes 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, to place a

Government servant under suspension where a disciplinary proceeding

against him is contemplated or pending or where in the opinion of the

authority he has engaged himself in activities prejudicial to the interest of the

security of the State or where a case against him in respect of any criminal

offence is under investigation, inquiry or trial. Sub-rules (6) and (7) of Rule

10 which are relevant for our purpose read as under:

"(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 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."

9. As per sub-rule (6) of Rule 10 an order of suspension made or

deemed to have been made under this rule has to be reviewed by the

competent authority before expiry of ninety days from the effective date of

suspension which would be done on the recommendation of the Review

Committee constituted for such purpose. The competent authority would

thereupon pass an order either extending or revoking the suspension.

Subsequent reviews likewise have to be made before expiry of extended

period of suspension and such extension would not be for a period exceeding

180 days at a time. Sub-rule (6) of Rule 10 thus provides a safeguard against

unnecessary and indefinite continuation of suspension of a Government

servant. This sub-rule requires the competent authority to review the order of

suspension periodically after obtaining the recommendation of the Review

Committee which would be constituted for this purpose.

10. Sub-rule (7) of Rule 10 of CCS (CCA) Rules provides that an

order of suspension shall not be valid for a period of 90 days unless it is

extended after review for a further period before expiry of 90 days. Thus, in

addition to the requirement of periodic review of the suspension order of a

Government servant as provided in sub-rule (6) of Rule 10, the consequences

of not carrying out such review have been specified in sub-rule (7). It is

provided that an order of suspension shall not be valid after a period of 90

days unless it is extended after review before expiry of 90 days. Sub-rule (7)

of Rule 10 thus not only provides the consequences of not reviewing the order

of suspension in terms of sub-rule (6), also for greater emphasis provides that

such suspension shall not be valid unless reviewed before the end of the

period of 90 days.

11. These provisions came up for consideration before the Supreme

Court in case of Dipak Mali (supra). Following observations may be noted:

"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 20-10-2004, 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.

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."

12. As pointed out by the counsel for the petitioner this Court in case

of Swapan Kumar De (supra) referring to and relying upon the decision of

Supreme Court in case of Dipak Mali (supra) the court had observed as

under:

"7. Indisputably, in the instant case, the case of the present petitioner is never placed before the disciplinary committee nor his suspension order was ever reviewed by the Government authority as contemplated by the scheme of Rules and on expiry of ninety days indisputably further continuance of suspension has become invalid and he could not have been continuing any further thereafter. Consequently, petition succeeds and allowed. The further continuance of the order of suspension dated 24th September, 2008 stands revoked. The respondents are directed to reinstate the petitioner in service as regards the effect of FR-53 of the Chapter-VIII of the Swamy's Compilation of FRSR is concerned. As far as the salary other than subsistence allowance payable to the petitioner is concerned under FR-53 that may be examined after the conclusion of the criminal case pending against him. The respondents are also at liberty to post the petitioner wherever his service can be effectively taken care in the interest of administration. No costs."

13. In view of such legal position, I have no hesitation in coming to

the conclusion that the petitioner's order of suspension cannot survive beyond

the period of 90 days from the effective date of suspension. In the present

case, the order of suspension was passed with immediate effect and it is not

the case of the respondents that the same was not made effective from

05.09.2019 itself. Upon completion of 90 days thereafter the validity of the

order of suspension would lapse.

14. In case of Uttam Das Baishnab (supra) relied upon by the

counsel for the respondents, the facts were different and peculiar. It was a

case in which the petitioner therein who was a Government servant was

placed under suspension by an order dated 14.05.2020. He had filed the

petition challenging the continued suspension on the ground that the same

was not reviewed within 90 days of its passing. Period of 90 days would be

over on or around 12.08.2020. His suspension was not reviewed within such

period but was reviewed and extended by an order dated 20.08.2020. Before

doing that the committee constituted for reviewing the suspension order was

convened on 06.08.2020. However, the meeting could not be held because the

Chairman of the Review Committee was also the Chairman of working group

formed by the State of Tripura to handle the corona situation and to sort out

the issues of the people of the State stranded outside and people from other

States who had stranded in the State due to corona pandemic. It was in this

background, looking to extraordinary situation and noticing that the

suspension order was reviewed and extended shortly after completion of

period of 90 days, the Court refused to quash the same.

15. In the present case, the facts are substantially different. The order

of suspension which was passed on 05.09.2019, had to be reviewed within 90

days, i.e. latest by 04.12.2019. At this point of time the corona virus was

nowhere in picture.

16. In view of my conclusion that the order of suspension cannot

survive beyond the period of 90 days from the date of suspension, the

question of paying subsistence allowance to the petitioner at enhanced rate

after completion of period of 180 days would not survive.

17. In the result, it is declared that the order of suspension dated

05.09.2019 shall be invalid at the end of 90 days of the date of order. The

petitioner shall receive full pay and allowances for the subsequent period. The

petitioner shall be reinstated in active service. Directions of reinstatement

shall be carried out within a period of two weeks. The arrears of pay and

allowances shall be released within three months from today.

18. Petition disposed of accordingly.

Pending application(s), if any, also stands disposed of.

(AKIL KURESHI), CJ

Pulak