ORDER
Shankar Prasad, Member (A)
1. Aggrieved by the action of the respondents in not reviewing his order of suspension dated 18.7.2002, the applicant had preferred the present O. A. He had sought a direction to the respondents to review the order of suspension and to set aside the same and to permit him to resume the duties. He had requested for a direction to consider enhancement of sudsistence allowance also. After the filing of the O.A., the respondents had reviewed both the order of suspension as well as the order of grant of subsistence allowance. While the former indicated that order of suspension was to continue as the criminal case was in progress, the later enhanced the subsistence allowance by 50% Rule 10 of CCS (CCA) Rules was also amended during the pendency of this O.A. The O.A. was accordingly amended and the following new relief instead of the earlier relief of reviewing the order was sought.
“To quash and set aside the order dated 5.2.2004 at Annexure A-11 and direct the respondent No. 1 to review the order dated 18.7.2002 of suspension a fresh and also in accordance with ammended rules of CCS (CCA) Rules and circular dated 7.1.2004.”
2. The facts lie in a narrow compass. The applicant belongs to IRS. He joined the service in 1992 as an Income Tax Officer and was also promoted to Senior
. He was arrested by the CBI on 26.6.2002 and was released on 1.7.2002. He has been placed under suspension under Rule 10(2) and 10(1) of CCS (CCA) Rules vide order dated 18.7.2002. The operative portion of the order is as below:
“Now, therefore, the said Shri D.K. Mishra is deemed to have been suspended with effect from the date of detention, i.e. the 26.6.2002 in terms of Sub-rule(2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules. 1965, and shall remain under suspension until further orders. The President in exercise of the power conferred by Sub-rule (1) of the Central Civil Services (Classification, Control and Appeal) Rules 1965, also places the said Shri O.K. Mishra under suspension with immediate effect.”
The CBI has filed the charge sheet No. 08, dated 4.6.2003 in RC 10(A)/2002-GNR under Sections 7, 13(2) read with 13(1) (d) of Prevention of Corruption Act.
A charge sheet dated 29.10.2003 has also been served on the applicant under Rule 14 of CCS (CCA) Rules.
The order dated 5.2.2004 reads:
“The Competent Authority has reviewed the suspension of Shri D.K. Mishra and has decided to continue the suspension of Shri D.K. Mishra as a criminal case is in progress.”
Thereafter, the following order has been passed on 2.4.2004.
“The Competent Authority has reviewed the suspension of Shri D.K. Mishra on the recommendations of the Review Committee as provided in GOI’s DoP&T Notification GSR No. 2, dated 3.1.2004 and has decided to continue the suspension of Shri D.K. Mishra as criminal case is under trial.”
Another order has been passed on 21.9.2004.
“The Competent Authority has reviewed the suspension as per instructions of DoP&T Notification dated 7.1.2004 of Shri D.K. Mishra and has decided to continue the suspension of Shri D.K. Mishra as criminal case is under trial and disciplinary proceedigns arc pending.”
3. DoPT along with its letter dated 7.1.2004 has forwarded a copy of the draft notification inserting Sub-rule (6) and Sub-rule (7) in CCS (CCA) Rules. We are told by Ms. Bhatt, learned Counsel for the respondents that the said notification has been published only on 3.1.2004 and in accordance with Clause 1 (2) of the notification, the notification has come into force after 90 days i.e. with effect from 3.4.2004. Para-2 of this letter dated 7.1.2004 provides for composition of Review Committee. Para-3 is as under:
“The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been tinder suspension for one year without any charges being filed in a Court of law or no charge-memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned.”
4. We have heard the learned Counsels.
5. Ms. Sheth, learned Counsel for the applicant has contended that as per newly introduced Rule 10(6), the case of the applicant was required to be reviewed within 90 days of coming into force of the new Rules. It has not been done and accordingly, the order of suspension requires to be quashed. Alternatively, the order of suspension is a non-speaking order and does not indicate the period of suspension and is therefore even otherwise fit to be quashed. As the charge sheet has already been submitted the question of interference with the investigation etc. does not arise. She has further contended that while the suspension of similarly placed individuals (Annexure A-9) had been revoked that of applicant was not done so. The applicant has been discriminated as he has challenged the order of suspension.
Ms. Bhatt on the other hand has contended that as the suspension had been reviewed prior to coming into force of the new rules, the first part of Rule 10(6) regarding review within 90 days does not apply to the case of this applicant. The order has been reviewed and the order extending the period of suspension has been passed within 6 months, thereafter. When the rules provide that period of suspension shall not exceed 180 days, the non-mention of this period docs not vitiate the order. The reasons can be recorded on file and the same need not be communicated. She has drawn our attention to the charge sheet filed in the criminal case indicating therein that the applicant had demanded a bribe of rupees three lakhs and had accepted the first installment of one lakh rupees.
6. Prior to the present amendment, the provisions relating to modification/revocation of suspension order were contained in Rule 10(5) (c) read with Rule 10(5)(a). The said rule docs not prescribe a time limit for review. The executive instructions issued by the Central Government provided for follow up action, review of suspension and revoking of suspension.
DoPT, O.M. dated 16.12.1972 is as follows:
“The Administrative Reforms Commission, in their Report on Personnel Administration have made the following observations in Chapter IX (Conduct and Discipline) of the Report:
Officials remain, at present, under suspension of considerably long periods because of the delays in the decision of their cases. Instructions exist that, as far as possible, investigation in disciplinary cases should be completed and a charge-sheet filed in the Court of law in cases of prosecution or the memorandum of charges served in the ease of departmental proceedings, within a period of six months, if cases arc likely to be delayed, the question of revocation of the suspension order should be examined. These instructions have not been followed in very many cases, and this indicates a lack of a sense of urgency among those handling the cases.
We recommend that no person should ordinarily be kept under suspension for a period of more than three months except in cases pending in the Courts. If reinstatement of the officials is considered to be fraught with risk of evidence of the departmental case being tampered with or the departmental proceedings being hampered, the official should be transferred to any other place where no such risk exists. Approval of a higher authority should be obtained for keeping official under suspension beyond the period of three months.
2. This recommendation has been examined by the Government. The Ministry of Home Affairs (now Department of Personnel) Office Memorandum No. 221/18/65-AVD, dated the 7th September, 1965, had already emphasised the need for quick disposal of cases of Government servants under suspension and it was desired in particular that the investigation in such cases should be completed, and a charge-sheet filed in the Court cases of departmental proceedings, within six months. These instructions were further elaborated in the Department of Personnel, Office Memorandum No. 39/39/70-Estt. (A), dated 4th February, 1971, as a result of discussion in the National Council of the Joint Consultative Machinery. It was laid down in these instructions that every effort should be made to file the charge sheet in Court or serve the charge sheet on the Government servant, as the case may be, within three months of the date of suspension and in cases in which it might not be possible to do so, the Disciplinary Authority should report the matter to the next higher authority explaining the reasons for the delay.
3. It would thus be observed that Government have already reduced the period of suspension during investigation, barring exceptional cases which are to be reported to the higher authority from six months to three months. It has now been decided that while the orders contained in the Office Memorandum of 4th February, 1971, would continue to be operative in regard to the cases pending investigation before the filing of the charge sheet in the Court as also in respect of serving of the charge sheet on the Government servant in cases of departmental proceedings in cases other than those pending in Courts the total period of suspension v/z., both in respect of investigation and disciplinary proceedings, should not ordinarily exceed six months. In exceptional cases, where it is not possible to adhere to this time limit, the Disciplinary Authority should report the matter to the next higher authority, explaining the reasons for the delay.
4. This decision may be brought to the notice of all Administrative Authorities in or under the Ministry of Finance, etc. for information and appropriate action.
7. The scope of Rules 10(2) and 10(5) of CCS (CCA) Rules were explained by the Apex Court in its judgment dated 18.7.2003 in Union of India v. Rajiv Kumar, with Union of India v. Bani Singh, , as follows.
“23. Two principles of construction–one relating to casus omissus and the other in regard to reading the statute/statutory provision as a whole–appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself. But, at the same time a casus omissus should not be readily inferred and for that purpose all the parts of the statute or section must be construed together and every clauses of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. “An intention to produce an unreasonable result,” said Danackwerts, LJ. in Artemiou v. Procopiou (1966 I QB 878), “it is not to be imputed to a statute if there is some other construction available.” Where to apply words literally would “defeat the obvious intention of the legislature and produce a wholly in reasonable result” we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557)) where at p. 577 he also observed: “this is not a new problem, though our standard of drafting is such that it rarely emerges.”
24. It is then true that, “when the words of a law extend not to an inconvenience rarely happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accident.” “But, on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom” (See Fantion v. Hamption, 11 Moore PC 345). A casus omissus ought not to be created by interpretation, save in some cases of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel) aut bis existit proctercunt legislatorsm the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as sit existed before such statute–Casus omissus et oblivioni datus dispositioni communis juris relinquitur; “a casus omissus,” observed Buller, J in Jone v. Smart (1 TR 52), “can in no case be supplied by a Court of law, for that would be to makes laws.”
25. The golden rule for construing wills, statutes, and in fact, all written instruments has been thus stated: “the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further” (See Grey v. Pearson and H.L. Case 61). The latter part of this “golden rule” must, however, be applied with much caution, “if, remarked Jervis, C.J., “the precise words used are plain and unambiguous in or judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning” (see Abley v. Dale 11, C.B. 378).
26. The inevitable conclusion therefore is that the order in terms of Rule 10(2) is not restricted in its point of duration or efficacy to the period of actual detention only. It continues to be operative unless modified or revoked under Sub-rule (5)(c), as provided under Sub-rule (5)(a).
29. Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable. The period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities fell that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension.”
8. We also note that DoPT had issued guidelines in terms of this decision vide their letter No. 11012/8/2003-Estt(A), dated 23.10.2003 that the order in terms of Rule 10(2) is not restricted in operation unless modified or revoked under Sub-rule 5(c) as provided in Sub-rule 5(a).
9. We first note that the draft notification dated 23.12.2003 inserting Sub-rules (6) and (7) in Rule-10 was published as GSR 2 dated 3.1.2004. Para 1(2) of this notification provides that they shall come into force on the expiry of 90 days from the date of publication in Official Gazette. Swamysnews (June, 2004) refers to a DoPT Notification dated 2.4.2004 published without a GSR No. indicating that these rules will come into force w.e.f. 2.6.2004.
10. Department of Personnel and Training, O.M. dated 19.3.2004, as published in Swamysnews May, 2004 after referring to earlier O.M. dated 7.1.2004 and the draft notification and the GSR conveys the following instructions.
“… it would, therefore, be necessary to review pending cases in which suspension has exceeded 90 days, by 2.4.2004. Other suspension cases will also have to be reviewed before expiry of 90 days from the date of order of suspension.
2. Ministry/Departments are requested to ensure that necessary Review Committees are constituted as per the guidelines laid down in O.M. dated 7.1.2004 and suspension cases are reviewed accordingly.
11. Rule 3 of the All India Services (Discipline and Appeal) Rules were amended by GSR 130 dated 13.7.1998.
The following changes were introduced:
(a) The existing second provisio in Sub-rule (1) of Rule 3.
“Provided further that, where a State Government passes an order placing under suspension a member of the service against whom disciplinary proceedings arc contemplated such an order shall not be valid unless before the expiry of a period of 45 days from the dale the member is placed under suspension or such further period not exceeding 45 days as may be specified by the Central Government for reasons to be recorded in writing cither disciplinary proceedings have been initiated against him or the order of suspension is confirmed by Central Government” has been replaced by.
“Provided further that, where a member of the service against whom disciplinary proceedings are contemplated is suspended, such suspension shall not be valid unless before the expiry of a period of ninety clays from which the member was suspended, disciplinary proceedings are initiated against him:
Provided also that the Central Government may, at any time, before the expiry of the said period of ninety days and after considering the special circumstances for not initiating disciplinary proceedings, to be recorded in writing allow continuance of the suspension order beyond the period of ninety days without the disciplinary proceedings being initiated.”
(b) The line in Sub-clause (b) of Sub-rule-7 “with the termination of all or any of such proceedings” has been replaced by “subject to Sub-rule-8.
(c) Sub-clauses (8) and (9), reproduced below have been added:
“(8)(a) An order of suspension made under this rule which has not been extended shall be valid for a period not exceeding ninety days and an order of suspension which has been extended shall remain valid for further period not exceeding one hundred eight days at a limit, unless revoked earlier.
(b) An order of suspension made or deemed to have been made or continued, shall be reviewed by the Competent Authority on the recommendations of the concerned Review Committee.
(c) The composition and functions of the Review Committee and the procedure to be followed by them shall be as specified in the Schedule annexed to these rules.
(d) The period of suspension under Sub-rule (1) may, on the recommendations of the concerned Review Committee, be extended for a further period not exceeding one hundred and eighty days at a time:
Provided that where no order has been passed under this clause, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed.”
(9) Every order of suspension and every order of revocation shall be made, as nearly as practicable, in the appropriate standard form appended to these rules.”
12. Fundamental Rules 53(l)(ii)(a) provides for review of suspension within three months to enhance the subsistence allowance. Government of India instructions, dated 23.8.79 provides that this should give an opportunity to review the substantive question of suspension also. The rule does not provide for a second review. GOI, Ministry of Finance, O.M. Dated 30.6.66 provides that subsequent reviews can be made at any time at the discretion of Competent Authority.
F.R, 54(b) refers to payment of pay and allowances to Government servants who while under suspension, dies, or retires.
13. The amended Para 10 after insertion of Sub-clause (6) and Sub-clause (7) is as follows: —
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 proceedings 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 Slate; 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 Accountant-General or equivalent (other than a regular member of the Indian Audit and Account Services), where the order of suspension is made by an authority lower than the Appointing Authority the circumstances in which the order was made.
2. A Government servant shall be deemed to have been placed under suspension by an order of Appointing Authority:
(a) with effect from the date of his detention, if he is detailed 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 even 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.
Explanation:–The period of forty-eight hours referred to in Clause (h) 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 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 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 merit of the case.
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 proceedings or otherwise), and any other disciplinary proceedings 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 competent to modify or revoke the suspension, before expiry of ninety days from the date of order of suspension, on the recommendation of the Review Committee constituted for the purpose and pass order 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. Notwithstanding anything contained in Sub-rule 5, 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 ninety days unless it is extended after review, for a further period before the expiry of ninety days.”
14. A reference to these rules indicates that it envisages five types of suspensions, namely,
(i) Rule 10(1)(a) : Suspension during pendency or contemplation of (Oct.-198) departmental proceedings; investigation inquiry or trial of any criminal offence or activities prejudicial to interests of security of State.
(ii) Rule 10(2) : Deemed suspension for detention in custody for period exceeding forty-eight hours and or if sentenced to punishment exceeding forty-eight hours and has not forthwith been dismissed, removed or compulsory retired.
(iii) Rule 10(3): Deemed suspension when the penalty of dismissal, removal or compulsory retirement of a Government suspension under suspension is set aside in appeal or in review.
(iv) Rule 10(4): Deemed suspension when the penalty of dismissal, removal or compulsory retirement is set aside by a Court of Law.
(v) Rule 10(5)(b) : Suspension on account of a new proceedings when the Government servant is already under suspension or deemed suspension.
15. In the context of the latest amendment, we may have four categories of employees.
(a) Employees placed under suspension after coming into force of the rules.
(b) Employees placed under suspension after notification of draft rules.
(c) Employees placed under suspension before the notification of draft rules. They may be subdivided into two categories depending on whether the review has been carried out or not.
16. The scheme of Sub-clause (6) and (7) is that:
(a) A review of all types of orders of suspension under Rule 10 has to be made within 90 days of the date of order on the recommendations of Review Committee.
(b) An order of suspension made under Sub-rule (1) or Sub-rule (2) shall not be valid after 90 days unless it has been extended after review before the expiry of this period.
(c) Subsequent review shall be made before the expiry of extended period of extension.
(d) Extension of suspension shall not be for a period exceeding 180 days at a time.
17. The following questions accordingly emerges:
(a) Do the rules mean that the principles contained in first part of Sub-clause (6) relating to review within 90 days also applies to employees placed under suspension prior to issuance of draft notification or after issuance of draft notification, but where the period of 90 days has expired before 2.6.2004? Does the O.M. Dated 19.3.2004 achieve this?
(b) It is that the new rules are mandatory and result in automatic quashing of order of suspension only in respect of orders of suspension issued under Rule 10(1) and 10(2)? Is it that it is only directory as far as orders under Rules 10(3), 10(4) and 10(5)(b) are concerned?
The answer to the first question would requires interpretation of the expression “Before the expiry of ninety days from the date, of order of suspension” occurring in Sub-clause (6). The expression “before the expiry of ninety days also appears in Sub-clause (7).
18. The Apex Court in Union of India v. Harnam Singh 1993 SCC (L and S) 375 was considering an appeal against the interpretation of Note-5 to P.R. 56(m) by C.A.T., Principal Bench. The relevant part of the said amendment introduced in 1979 and since renumbered as Note 6, is as follows :
“An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an administrator of a Union Territory under which the Government servant is serving if:
(a) a request in this regard is made within five years of his entry into Government Servant
(b) it is clearly established that a genuine bona fide mistake has occurred and
(c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date of which he first appeared at such examination or on the date on which he entered Government service.”
The CAT in the instant case was of the opinion that the bar of five years could only apply to such Government servants who joined service after 1979, when the amendment came into force and that the said period of limitation would not apply to Government servants who were in service for more than five years prior to 1979.
The Apex Court held:
“The approach of the Tribunal does not commend to us as it tends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of Government servants between those who joined service before and after 1979. It is a too simplistic way of looking at the issue, ignoring the ground realities and the intention of the rule-making authority to discourse stale claims and non-suit such Government servants who seeks the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. To say that the respondents, even though he signed the service-book at a number of places at different times and saw the seniority lists, may not have still come to know as to what his recorded date of birth was, is to ignore the normal human conduct and put premium on negligence. The observations of CAT quoted above are neither logical nor sound. Of course, Note-5 to FR 56(m) was incorporated only in 1979 and it provides for request to be made for correction of date of birth within five years from the date of entry into service but the intention of the rule-making authority in providing the period of limitation for seeking the correction of the date of birth of the Government servant has to be examined which is to discourage stale claims and belated application for alteration of date of birth recorded in service book at the time of initial entry. It is the duty of the Courts and Tribunal to promote that intention by an intelligible and harmonious interpretation of the rule rather than choke its operation. The interpretation has to be the one which advances the intention and not the one which frustrates it. It could not be the intention of the rule-making authority to give unlimited time to seek correction of date of birth, after 1979, to those Government servants who had joined the service prior to 1979, but restrict it to the five years period for whose who entry service after 1979. If a Government servant, already in service for a long time, had applied for correction of date of birth before 1979, it would not be permissible to non-suit him on the ground that he had not applied for correction within five years of his entry into service, but the case of the Government servant who applied for correction of date of birth only after 1979, stands on different footing. It would be appropriate and in tune with harmonius construction of the provision to hold that in case of those Government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979, but in any event not later than five years after coming into force of the amendment in 1979. This view would be in consonance with the. intention of the rule-making authority.”
19. We note that All India Service (Discipline and Appeal) Rules provides for the following types of suspension:
(a) Rule 3(1) — During the pendency or contemplation of Departmental inquiry.
Rule 3(1 A) — Engaging himself in activities prejudicial to interests of security of state.
Rule 3(3)–Investigation, enquiry or trial relating to criminal charge is pending if the charge is connected with his position as a number of service or embarrass him in discharge of duties or involves moral turpitude.
(b) Rule 3(2)–Deemed suspension for detention beyond 48 hours on criminal charges or otherwise.
Rule 3(4)–If sentenced for a period exceeding 48 hours in a criminal case and is not forthwith dismissed, removes or compulsorily retired.
(c) Rule 3(5)–Deemed suspension when order of dismissal, removal and compulsory retirement is set aside in appeal or review and case remitted for further action.
(d) Rule 3(6)–Deemed suspension when order of dismissal, removal and compulsory retirement is set aside by Court of law.
(e) Rule 3(7)(b)–Subsequent disciplinary proceeding during the currency of an order of suspension or deemed suspension.
We note that second provision to Sub-rule (1) provides that if disciplinary proceedings are not initiated within 90 days of the order of suspension, the order shall not be valid unless it is extended for a further period for reasons to be recorded in writing before the expiry of the said period.
We note that provision of Sub-rule 3(8)(d) applies only to Sub-clause (1).
20. The present amendment of CCS (CCA) Rules brings a much wider category of suspensions under the 90 days rules. It now covers the first two of five categories mentioned in Para 14 above. Only those cases where the employees is under deemed suspension as orders of dismissal, removal or compulsory retirement have been set aside or the suspension was because of a second proceedings when under suspension have been left out.
In the case of employees, who were placed under suspension prior to publication of draft rules, the period of 90 days would expire before coming into force of the Sub-rules (6) and (7). We also note that the Apex Court in Rajiv Kumar’s case, delivered a few months before in July 2003, had rejected the plea that suspension over a long period render the order invalid. No statements of objects and reasons appear to be annexed to the notification. The forwarding letter of 7.1.2004 reiterates the earlier policy that suspensions over unduly long period puts the employees to undue hardship and the Government has to pay subsistence allowance. The DoPT O.M. Dated 19.3.2004 has to be seen in this background.
The AIS (D&A) Rules were also amended to provide a statutory basis for review except that automatic termination of suspension is envisaged only in case of contemplated departmental proceedings.
21. The new rules provides for (i) a review by a duly constituted committee and decision thereon; (ii) that if first review is not carried out in 90 days than the order lapses; (iii) subsequent review before the expiry of period of suspension and (iv) subsequent period of suspension not being more than 180 days at a time.
The composition of review committee as per the guidelines of DoPT which is the nodal department is as follows:
(a) Where the President is neither the Disciplinary nor the Appellate Authority, the Disciplinary Authority, and another officer of the level of Appellate Authority.
(b) Where the President is the Appellate Authority, the Disciplinary Authority and two officers of the level of Secretary/Additional Secretary/Joint Secretary, who are equivalent or higher in rank to Disciplinary Authority.
(c) Where the President is the Disciplinary Authority, three officials of the level of Secretary/Additional Secretary/Joint Secretary, who are higher in rank than the suspended official.
22. A plain reading of Rule 10(6), which is prospective in nature, suggests that the said rule shall have no direct application where the period of 90 days has already expired before 2nd June, 2004. These cases would fall in two different categories namely where the order of suspension has been issued prior to the issuance of draft notification and after the issuance of the draft notification, but before 2.6.2004. The DoPT O.M., dated 19.3.2004 requires even these cases to be reviewed in terms of the principles contained in the proposed amendment. This circular is silent about the subsequent period of suspension in case a decision is taken to extend the period of suspension. The reference to earlier O.M. and the draft notification suggests that this period should not exceed 180 days.
23. This ensures that employees suspended after coming into force of new rules and those under suspension from before are treated identically. This course of action is consistent with the decision of the Apex Court in Union of India v. Harnam Singh. Whether the failure to carryout the first review in terms of this O.M. dated 19.3.2004 or the failure of carryout the next review within the period of suspension or 180 days, whichever is shorter, would lead to automatic revocation of suspension in terms of these rules is not in issue in this O.A. We, accordingly, do not express any final opinion on this question.
24. We note that in this case that subsequent to the order dated 5.2.2004, a review has been carried put and fresh orders issued on 2.4.2004, the last date mentioned in this O.M. The subsequent review has been carried out on 21.9.2004 that is before the expiry of the period of 180 days.
25. The first point raised by the learned Counsel for the applicant is that as no review in accordance with new Sub-rule (6) and (7) have been carried out the order dated 5.2.2004 has lapsed. We have noted in para 10 above that the DoPT have issued detailed guidelines vide letter dated 19.3.2004 to review those cases also where the period of suspension had exceeded 90 days or was to exceed 90 days taking into account the recommendation of review committee suggested in letter dated 7.1.2004. This exercise was to have been completed vide 2nd April 2004. We find that in the instant case also such a review has been carried out and order on basis of such review have been issued on 2nd April 2004.
26. Ms. Sheth has also relied on the decision of Principal Bench in O.A. 2078/1999, G.P. Sewalia v. U.O.I. The applicant had been suspended under Rule 3(3) of AIS (DA) Rules on 7.1.99. His suspension was first extended by order dated 13/16.8.99 and was further extended till 31.3.2000. It had been contended that the order of suspension stood revoked in terms of Sub-rule 8(a) as the same was not reviewed within 90 days. The Govt. of India had taken the view that orders are only directory. The Tribunal held as follows:
“6. A perusal of the above sub-rule makes it manifest that an order of suspension is valid not exceeding ninety days and that where no order has been passed within the period of ninety days, the order of suspension shall stand revoked w.e.f. the date of expiry of the order. Learned Counsel for the respondents does not dispute this proposition. He however, contends that Sub-rule 8 is only directory which, in our view, is not acceptable. Sub-rule 8(a) clearly stipulates the period during which the order of suspension would be valid, it is only for ninety days. It further stipulates that if it was extended it would be valid for another period of 180 days and no further. The proviso to Clause (d) stipulates the consequent of failure of further extension, the order stands revoked. In Clause (b) and (c), it is stated how the Review Committee to be constituted and the procedure to be followed by them.
7. It is also clear from the language employed in the rule that the rule is mandatory. The expression “shall be valid for a period not exceeding ninety days,” appears to be peremptory and unambiguous in its meaning. The suspension, therefore, cannot be valid exceeding the period of ninety days unless it was extended. The argument that the expression ‘shall’ may not always be indicative of the rule being mandatory cannot hold good in the case of the expression used and the intendment of the framers of the rules in employing the language of the rules.”
27. The said decision is clearly distinguishable as in this case, a review has been carried out. Thus, this contention has to be rejected.
We also note that though the AIS (Rules) bring only orders passed under second proviso to Sub-rule (I) within the ambit of proviso of Sub-clause (a), the said decision impliedly brings order Sub-clause (3) under this rule.
28. The second contention of the learned Counsel for the applicant is that the order is bad for not mentioning the duration of suspension. Ms. Bhatt has argued that period was prcscribed in the rules and the non-mention of the same does not vitiate it. We note that after the orders dated 5.2.2004, another review is earned out and orders issued on 2.4.2004. The next review, thereafter, has been carried out in September, 2004 and ordered pursuant to such review issued on 21st September. 2004. The subsequent orders have accordingly been issued in the time framed prescribed by DoPT and before expiry of six months period respectively. Thus, even if the orders did not indicate any period, the reviews have been carried out within this stipulated period.
This contention has also to be rejected.
29. The last contention raised by the learned Counsel for the applicant is that the cases of similarly situated persons of Department of Revenue, mentioned in Annexure A-9, the suspension was revoked within a year while the same has not been done in the instant case. This list includes two officers of Indian Revenue Services, two of ITOs and two Inspectors perhaps of Income Tax Department, six employees of Central Custom and Excise Department, in the rank of Superintendent/Inspector and one employee of Regional Passport Office. Nothing has been indicated about the nature of the charges against these persons. The suspension has been revoked in all these cases before coming into force of the new sub-rule. Who were the Disciplinary Authorities in all these cases is not indicated. We have noted in Para 21 above, that the new rule provides for a review by duly constituted committee. The composition of which has also been described therein.
30. The Apex Court in Chandigarh Administration v. Jagjit Singh held as follows:
“Generally speaking the mere fact that the authority has passed a particular order in a case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious (hat such illegal or unwrrantcd order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order”.
31. We find that in the instant case, the applicant has been charge-sheeted for demanding rupees three lakhs as illegal gratification and of accepting rupees one lakhs in the initial transaction. As per the charge-sheet, the conversation has been taped and expert opinion about the voice obtained. The said amount has been stated to be recovered from his residence in the presence of independent witnesses. The charge-sheet has been issued on Sections 7,13 reads with 13( I )(d) of Prevention of Corruption Act. We note that Apex Court in Kendriya Vidyalaya Sangathan v. T. Shrinivasan, has earved out an exception in the matter relating to prosecution under Prevention and Corruption Act from the principles laid down in Paul Antony’s case in respect of simultaneous criminal and departmental procecdigns. Besides this, the suspension has to be reviewed in facts of each case.
In view of the above discussion, this contention is also rejected.
32. Haying regards to what has been discussed above, the O. A. is fit to be dismissed and is dismissed. No order as to costs.