IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15/02/2006
CORAM
THE HON'BLE MR. JUSTICE P.K.MISRA
AND
THE HON'BLE MR. JUSTICE R.SUDHAKAR
WRIT PETITION No.40113 of 2005
and W.P.M.P.No.43009 of 2005
M.E.Rajaram ... Petitioner
-Vs-
1. The Union of India, represented by
The Secretary to Government of India,
Ministry of Human Resources
Development, Department of Women and
Child Development, Shastri Bhavan,
New Delhi-110001.
2. The Deputy Technical Advisor,
Department of Women and Child Development,
Food and Nutrition Board, Southen Region,
Shastri Bhavan, Chennai-6.
3. The Central Administrative Tribunal,
Madras Bench, Chennai-104,
represented by its Deputy Registrar. ... Respondents.
Writ petition filed under Article 226 of The Constitution of
India to issue a Writ of Certiorarified Mandamus to call for the records
relating to the order in O.A.No.97 of 2005 dated 09.09.2005 on the file of the
third respondent upholding the order of the second respondent in Office
Memorandum No.PF/83/FN dated 31.01.2003 and quash the said two orders and
direct the second respondent to reinstate the petitioner in service with all
the attendant benefits.
!For petitioner : Mr. P.Rajendran
^For respondents : Mr.R.Santhanam, SCGSC,
for RR.1 and 2.
:O R D E R
(Order of the Court was made by P.K.MISRA.J)
Heard learned counsels appearing for the parties.
2. Though the matter was listed for considering the grant of
stay, since the question raised in the Miscellaneous petition is the same as
in the main writ petition and since the entire matter depends upon the
interpretation of the rules, by consent of learned counsel appearing for the
parties, the main writ petition itself is taken up for disposal.
3. The petitioner was placed under suspension on 31.01.2003
in contemplation of a departmental proceeding initiated under Rule 10(1) of
the CCS CCA Rules, 1965. Thereafter, punishment of compulsory retirement was
imposed by order dated 29.01.2004 with effect from 31.01.2 004. However, the
appellate authority directed a de novo enquiry by order dated 26.08.2004.
Therefore, by virtue of Rule 10(3), the petitioner is deemed to have continued
under suspension on and from the date of the original order of compulsory
retirement by virtue of the order relating to de novo enquiry. Thereafter,
the petitioner filed Original Application No.97 of 2005 before th e third
respondent Tribunal challenging the continuation of the suspension order
beyond a period of 90 days from the date of suspension, that is to say, from
26.08 .2004.
4. The main contention of the petitioner was on the basis of
the provisions contained in Rule 10 (7), which came to be incorporated under
the above said rules by amendment dated 23.12.2003. There is no dispute that
such amendment of rules is applicable. For consideration of the question
raised in the writ petition, it is necessary to extract the relevant rules
viz. 10 (1), 10 (3), 10 (5), 10 (6) and 10 (7 ):-
” 10. (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
(b) where a case against him in respect of any criminal
offence is under investigation, inquiry or trial:
Provided that, except in case of an order of suspension made by the
Comptroller and Auditor-General in regard to a member of the Indian Audit and
Accounts Service and in regard to an Assistant AccountantGeneral 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.
(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.
(5) (a) An order of suspension made or deemed to have been made under
this rule shall continue to remain in force until it is modified or revoked by
the authority competent to do so.
(b) Where a Government servant is suspended or is deemed to have been
suspended (whether in connection with any disciplinary proceeding or
otherwise), and any other disciplinary proceeding is commenced against him
during the continuance of that suspension, the authority competent to place
him under suspension may, for reasons to be recorded by him in writing, direct
that the Government servant shall continue to be under suspension until the
termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this
rule may at any time be modified or revoked by the authority which made or is
deemed to have made the order or by any authority to which that authority is
subordinate.
(6) An order of suspension made or deemed to have been made under this
rule shall be reviewed by the authority which is competent to modify or revoke
the suspension before expiry of 90 days from the date of order 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 180 days at a time.
(7) Notwithstanding anything contained in sub-rule 5 (a), 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 90 days unless it is extended after
review, for a further period before the expiry of 90 days.”
5. Even though the Tribunal had specifically referred to
Rules 10 (6) and 10 (7), it came to the conclusion that there is no specific
provision in Rule 10 (6) to the effect that if the suspension order is not
extended, the suspension of the petitioner comes to an end automatically on
the expiry of the period of 90 days. It is, therefore, obvious that the
Tribunal has not placed any reliance upon Rule 10 (7) mainly because in Rule
10 (7), a reference is made to Rules 10 (1) and 10(2) and there is no specific
reference to Rule 10(3).
6. Learned counsel appearing for the petitioner has contended
that Rules 10 (6) and 10 (7) which have been introduced by way of amendment,
should not be read in isolation and should be read together. According to the
learned counsel for the petitioner, the suspension can be made either under
Rule 10 (1) or Rule 10 (2). The provision contained in Rule 10 (3) is only
deemed continuation of suspension made under Rule 10 (1) or Rule 10 (2), if
subsequently order of dismissal, removal or compulsory retirement is set aside
and a direction is issued for de novo enquiry. According to the learned
counsel appearing for the petitioner, the provision contained in Rule 10 (3)
does not have any application as it is only a deemed continuation of a
suspension order already made either under Rule 10 (1) or 10 (2). Therefore,
it is submitted that the specific provision contained in Rule 10(7) is also
applicable to the deemed continuation of a suspension order as contemplated in
Rule 10 (3).
7. In this connection, the learned counsel for petitioner has
also submitted that the main intention of introducing Rule 10 (6) is that a
person should not be continued under indefinite suspension and the appropriate
authority should undertake a review after 90 days so that the person need not
be continued under indefinite suspension. Since the intention is to have a
review at a specified period and not to encourage the indefinite suspension,
both provisions should be read together as otherwise, the intention of the
rule making authority will be lost sight of.
8. Learned Senior Central Government Standing Counsel
appearing for the respondent submitted that Rule 10 (7) makes it applicable
only to a suspension under Rule 10 (1) or Rule 10 (2) and since there is no
reference in Rule 10 (7) to any suspension under 10(3), such rule should not
be applied to the suspension, whic h is deemed to be continued by virtue of
rule 10(3).
9. We are unable to accept the submission made by the Senior
Central Government Standing Counsel appearing for the respondents. As rightly
pointed out by the learned counsel for the petitioner, the provisions
contained in Rule 10 (3) must be read in a harmonious manner with Rules 10 (1)
and 10 (2). The order of suspension envisaged under Rule 10 (3) is attracted
only in a situation where the order of dismissal, removal or compulsory
retirement is subsequently set aside and the matter is remitted back for
further enquiry or action. Thus, in such an event, the order of suspension
under Rules 10 (1) or 10 (2), as the case may be, shall be deemed to have
continued to be in force. This is not an independent power of suspension; but
the necessary effect of a review of the order of punishment by the appellate
authority. Therefore, in our opinion, any order deemed to have been passed
under Rule 10 (3) or an order made under Rule 10 (1) or 10 (2), as the case
may be, is required to be reviewed as contemplated under Rule 10 (6) and if
such order is not reviewed within the time stipulated, the consequences
envisaged under Rule 10 (7) automatically come into effect. In such view of
the matter, the order passed by the Tribunal is not sustainable and is liable
to be set aside.
10. In the course of argument, learned Senior Central
Government Standing Counsel, appearing for the respondent pointed out that
pursuant to the order passed by the Tribunal dated 09.09.2005, the review
before the concerned authority has taken place and the authority has passed an
order of continuation of suspension. However, in view of the fact as per the
statutory rules, the suspension had come to an end long before such order was
passed, continuation order will not be effective. However, the present order
shall not stand in the way of the competent authority passing any fresh order
of suspension in accordance with the relevant provisions. It is made clear
that the present order by us should not be construed as expressing any opinion
on the merits of the matter.
11. It is expected that the departmental authority shall
complete the proceedings within a reasonable period and the delinquent is
expected to cooperate in the early disposal of the departmental proceedings.
Since the order of suspension has been quashed, the petitioner is deemed to
have been in service for the said period.
12. The writ petition is ordered accordingly. No costs.
Consequently, connected W.P.M.P is closed.
sbi
To
1. The Secretary to Government of India,
Union of India, represented by
Ministry of Human Resources
Development, Department of Women and
Child Development, Shastri Bhavan,
New Delhi-110001.
2. The Deputy Technical Advisor,
Department of Women and Child Development,
Food and Nutrition Board, Southen Region,
Shastri Bhavan, Chennai-6.
3. The Central Administrative Tribunal,
Madras Bench, Chennai-104,
represented by its Deputy Registrar.