CASE NO.: Appeal (civil) 5007 of 2003 Appeal (civil) 5008 of 2003 PETITIONER: Union of India Union of India and Ors. RESPONDENT: Vs. Rajiv Kumar Bani Singh DATE OF JUDGMENT: 18/07/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT:
J U D G M E N T
WITH
(Arising out of SLP(C) No. 4491 of 2003)
(Arising out of SLP(C) 12703/2003 (CC.5872/2003)
ARIJIT PASAYAT,J
Delay condoned in SLP(C)………/2003 (CC 5872/2003).
Leave granted.
The basic issue in these two appeals relates to the
scope and ambit of Sub-Rule (2) of Rule 10 of the Central
Civil Services (Classification, Control and Appeal) Rules,
1965 (in short the ‘Rules’) vis-à-vis other provisions of
the said Rule.
Division Bench of the Delhi High Court by the impugned
judgment in each case held that Sub-Rule (2) of Rule 10 does
not contain any provision wherefrom it can be deduced that
the deemed suspension for custodial detention exceeding
forty eight hours would continue until it is withdrawn. It
was further held that on a plain reading of the said
provision it is clear that the same comes to an end by
operation of law after release of the employee from
detention.
Factual scenario is almost undisputed and needs to be
noted in brief.
Respondent-employee in each case was arrested and
detained in custody for a period exceeding 48 hours. With
reference to Sub-Rule (2) of Rule 10, the order was passed
in each case indicating that in view of the detention in
custody for a period exceeding 48 hours, the concerned
employee is deemed to have been suspended with effect from
the date of suspension and shall remain suspended until
further orders.
The background facts of the appeal relating to
respondent-Rajiv Kumar is referred for the purpose of
adjudicating the issues involved as the factual position in
the appeal relating to Bani Singh would not affect ultimate
conclusions. Rajiv Kumar was arrested on 26.3.1998 for
allegedly accepting bribe and was released on bail on
2.4.1998. The order purportedly under Sub-Rule (2) of Rule
10 to formally place on record was passed on 15.5.1998. On
2.7.2000 the order dated 15.5.1998 was assailed before the
Central Administrative Tribunal (in short the ‘CAT’) at its
Delhi Bench on the ground that there was no reason for his
continued suspension. The prosecuting agency filed challan
on 2.9.2000. On 11.10.2000, Rajiv Kumar filed an application
for interim relief. On 9.11.2000 an order was passed by the
authorities continuing suspension. By judgment dated
14.3.2001 CAT directed the authorities to dispose of the
matter by a reasoned and speaking order. An application for
review was filed on 26.4.2001. It was rejected by an order
dated 15.5.2001. In terms of the CAT’s directions, an order
was passed on 21.5.2001. The same is stated to be the
subject matter of challenge before the Mumbai Bench of CAT.
On 3.8.2001, Civil Writ Petition No.4746/2001 was filed
before the Delhi High Court challenging the aforesaid orders
dated 14.3.2001 and 15.5.2001. At this juncture, it needs to
be noted that there was no challenge to the order dated
9.11.2000.
By the impugned judgment, the Delhi High Court came to
hold, as noted above, that CAT was not correct in remitting
the matter back to the appointing authority for
consideration of the matter afresh. It was, inter alia,
observed that if a question of law had been raised before
it, CAT was required to apply its mind and pass appropriate
orders. The impugned order of suspension was quashed. It was
held that the order dated 15.5.1998 cannot be treated to be
one passed under Sub-Rule (2) of Rule 10. It was held that
an order of suspension after release of the petitioner on
bail could not have been passed under Sub-Rule (2) of Rule
10 and such order could have been passed only in terms of
Sub-rule (1) of Rule 10. View expressed by a Full Bench of
the Allahabad High Court in Chandra Shekhar Saxena and Ors.
v. Director of Education (Basic) U.P.,Lucknow and Anr. (1997
Allahabad Law Journal 963) was followed. It was further held
that a combined reading of Rules 10(1), 10(2), 10(3), 10(4)
and 10(5)(a) makes the position clear that the order of
suspension was effective for the period of detention and not
beyond it where by legal fiction a person is deemed to be
under suspension for being in custody for a period exceeding
48 hours.
For the sake of brevity, different Sub-rules have been
referred as Rules 10(1), 10(2), 10(3), 10(4), 10(5)(a),
10(5)(b) and 10(5)(c).
In Bani Singh’s case, the logic was applied, since the
legal position was held to be similar.
In support of the appeals, learned counsel for the
Union of India submitted that if the interpretation put by
the High Court is accepted the same would mean addition of
words to Rule 10(2). The language used in the said provision
is clear and unambiguous and, therefore, there is no scope
for making any alteration in the statutory texture. It was
further submitted that by accepting the interpretation, Sub-
Rule 5(a) of Rule 10 would also be rendered purposeless.
Per contra, respondents-employees who appeared in
person submitted that the interpretation brings out the
true essence of a deeming provision, which cannot be
extended beyond the purpose for which it was enacted. On a
combined reading of Rules 10(2), 10(3), 10(4) and 10(5)(a)
it is claimed for the respondents that the order of
suspension in a case covered under Rule 10(2)(a) has limited
operation for the period of detention and not beyond it.
Further it is submitted that an employee cannot be placed
under suspension for an indefinite period of time. Though
suspension is not penal in character yet it has serious
civil consequences. In the fact till date there has been
practically no progress in criminal proceedings and the
departmental actions initiated.
With reference to the Central Civil Services
(Classification, Control and Appeal) Rules, 1957 (in short
the ‘Old Rules’), it is pointed out that there is
conceptual difference in the relevant provisions and the
interpretation put by the High Court is in order.
Additionally, it is submitted that fresh order of
suspension has been passed and the appeals have become
infructuous because of subsequent events.
Rule 10 is the pivotal provision around which the
controversy revolves, and it reads as follows:
Rule 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
(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 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 placed 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.
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
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) 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.
5(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.
5(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.”
Rule 10(2) is a deemed provision and creates a legal
fiction. A bare reading of the provision shows that an
actual order is not required to be passed. That is deemed
to have been passed by operation of the legal fiction. It
has as much efficacy, force and operation as an order
otherwise specifically passed under other provisions. It
does not speak of any period of its effectiveness. Rules
10(3) and 10(4) operate conceptually in different
situations and need specific provisions separately on
account of interposition of an order of Court of law or an
order passed by the Appellate or reviewing authority and
the natural consequences inevitably flowing from such
orders. Great emphasis is laid on the expressions “until
further orders” in the said sub-rules to emphasise that
such a prescription is missing in Sub-rule (2). Therefore,
it is urged that the order is effective for the period of
detention alone. The plea is clearly without any substance
because of Sub-Rule 5(a) and 5(c) of Rule 10. The said
provisions refer to an order of suspension made or deemed
to have been made. Obviously, the only order which is even
initially deemed to have been made under Rule 10 is one
contemplated under Sub-Rule (2). The said provision under
Rule 10(5)(a) makes it crystal clear that the order
continues to remain in force until it is modified or
revoked by an authority competent to do so while Rule
10(5)(c) empowers the competent authority to modify or
revoke also. NO exception is made relating to an order
under Rules 10(2) and 10(5)(a). On the contrary,
specifically it encompasses an order under Rule 10(2). If
the order deemed to have been made under Rule 10(2) is to
loose effectiveness automatically after the period of
detention envisaged comes to an end, there would be no
scope for the same being modified as contended by the
respondents and there was no need to make such provisions
as are engrafted in Rule 10(5)(a) and (c) and instead an
equally deeming provision to bring an end to the duration
of the deemed order would by itself suffice for the
purpose.
Thus, it is clear that the order of suspension does not
loose its efficacy and is not automatically terminated the
moment the detention comes to an end and the person is set
at large. It could be modified and revoked by another
order as envisaged under Rule 10(5)(c) and until that
order is made, the same continues by the operation of Rule
10(5)(a) and the employee has no right to be re-instated
to service. This position was also highlighted in
Balvantrai Ratilal Patel v. State of Maharashtra (AIR 1968
SC 800). Indication of expression “pending further order”
in the order of suspension was the basis for aforesaid
view.
Reference has been made to Sub-Rule 5(b) of Rule 10.
According to the High Court the same appears to have been
made “ex majori cautela”. Conceptually Sub-Rules 5(a) and
5(b) operate in different fields and for different
purposes, i.e., when more than one disciplinary
proceedings come to be initiated to cover all such
situations. Both the provisions have to be read
harmoniously. Otherwise, Sub-Rule 5(a) would become
meaningless and Sub-Rule 5(c) purposeless and both
provisions would be rendered otiose and superfluous.
View of the Full Bench of the Allahabad High Court
(supra) that the legal fiction created ceases to be
effective for the purpose of suspension while operative
for other purposes is clearly unsustainable and we do not
approve of the same.
It is well settled principle in law that the Court
cannot read anything into a statutory provision or rewrite a
provision which is plain and unambiguous. A statute is an
edict of the Legislature. The language employed in a statute
or any statutory provision is the determinative factor of
legislative intent of policy makers.
Words and phrases are symbols that stimulate mental
references to referents. The object of interpreting a
statute or any statutory provision is to ascertain the
intention of the Legislature or the Authority enacting it.
(See Institute of Chartered Accountants of India v. M/s
Price Waterhouse and Anr. (AIR 1998 SC 74)) The intention
of the maker is primarily to be gathered from the language
used, which means that attention should be paid to what has
been said as also to what has not been said. As a
consequence, a construction which requires for its support,
addition or substitution of words or which results in
rejection of words as meaningless has to be avoided. As
observed in Crawford v. Spooner (1846 (6) Moore PC 1),
Courts, cannot aid the Legislatures, defective phrasing of
an Act, we cannot add or mend, and by construction make up
deficiencies which are left there. (Also See The State of
Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT
1998 (2) SC 253)). It is contrary to all rules of
construction to read words into an Act unless it is
absolutely necessary to do so. (See Stock v. Frank Jones
(Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of
interpretation do not permit Courts to do so, unless the
provision as it stands is meaningless or of doubtful
meaning. Courts are not entitled to read words into an Act
of Parliament unless clear reason for it is to be found
within the four corners of the Act itself. (Per Lord
Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910)
AC 445 (HL), quoted in Jamma Masjid, Mercara v.
Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).
The question is not what may be supposed and has been
intended, but what has been said. “Statutes should be
construed not as theorems of Euclid”. Judge Learned Hand
said, “but words must be construed with some imagination of
the purposes which lie behind them”. (See Lenigh Valley
Coal Co. v. Yensavage 218 FR 547). The view was re-iterated
in Union of India and Ors. v. Filip Tiago De Gama of Vedem
Vasco De Gama (AIR 1990 SC 981).
In D.R. Venkatchalam and Ors. etc. v. Dy. Transport
Commissioner and Ors. etc. (AIR 1977 SC 842), it was
observed that Courts must avoid the danger of an a priori
determination of the meaning of a provision based on their
own pre-conceived notions of ideological structure or scheme
into which the provision to be interpreted is somewhat
fitted. They are not entitled to usurp legislative function
under the disguise of interpretation.
While interpreting a provision, the Court only
interprets the law and cannot legislate it. If a provision
of law is misused and subjected to the abuse of process of
law, it is for the legislature to amend, modify or repeal
it, if deemed necessary. (See Commissioner of Sales Tax,
M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515).
The legislative casus omissus cannot be supplied by judicial
interpretative process.
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 a statute or section must be construed together and every
clause 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, L.J. in
Artemiou v. Procopiou (1966 1 QB 878), “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 legislation and produce a
wholly unreasonable 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”.
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
accidunt.” “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 Fenton v. Hampton 11 Moore, P.C. 345). A casus
omissus ought not to be created by interpretation, save in
some case 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 proetereunt legislatores, the rule is that the
particular case, thus left unprovided for, must be disposed
of according to the law as it existed before such statute –
Casus omissus et oblivioni datus dispositioni communis juris
relinquitur; “a casus omissus,” observed Buller, J. in
Jones v. Smart (1 T.R. 52), “can in no case be supplied by
a court of law, for that would be to make laws.”
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 6 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 our 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).
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).
Rule 10(5)(b) deals with a situation where a government
servant is suspended or is deemed to have suspended and
any other disciplinary proceeding is commenced against him
during continuance of that suspension irrespective of the
fact whether the earlier suspension was in connection with
any disciplinary proceeding or otherwise. Rule 10 (5)(b)
can be pressed into service only when any other
disciplinary proceeding is also commenced than the one for
and during which suspension or deemed suspension was
already in force, to meet the situation until the
termination of all such proceedings. In contradiction,
Rule 10(5)(a) has application in relation to an order of
suspension already made or deemed to have been made. Rule
10(5)(b) has no application to the facts of the present
case and no inspiration or support could be drawn for the
stand taken for the respondents or the decision arrived at
by the High Court. It is Rule 10(5)(a) alone which has
application and the deemed suspension would continue to be
in force till anything has been done under Rule 10(5)(c).
Similarly, Rules 10(3) and 10(4) operate in different
fields and merely because a specific provision is made for
its continuance, until further orders in them itself due
to certain further developments taking place and
interposition of orders made by Court or appellate and
reviewing authority to meet and get over such specific
eventualities, in given circumstances and that does not
in any way affect the order of suspension deemed to have
been made under Rule 10(2).
Strong reliance was placed on Nelson Motis v. Union of
India (1992 (4) SCC 711) to contend that omission of the
expression “until further orders” in Rule 10(2) was
conscious and, therefore, the period covered for “deemed
suspension” was restricted to period of detention. Such
plea is without substance. In Nelson’s case (supra) the
respective scope and ambit of Rule 10(2) and Rule 10(3)
fell for consideration. As indicated above, the said
provisions apply in conceptually and contextually
different situations and have even no remote link with a
situation envisaged under Rule 10(2). In fact, this Court
in the said case categorically observed as under:
“The comparison of the language with
that of Sub-Rule (3) re-inforces the
conclusion that Sub-Rule (4) has to be
understood in the natural sense”.
(underlined for emphasis).
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 feel
that the suspension needs to be continued, merely because
it is for a long period that does not invalidate the
suspension.
Some other pleas were pressed into service to contend
that High Court’s order is justified. It is submitted that
these stands were highlighted before the High Court though
not specifically dealt with. Since the High Court has not
dealt with these aspects, we do not take the other
contentions into account to express any view.
Though factually it is undisputed that fresh order of
suspension had been passed in each case, the same relates
to a separate cause of action and if any dispute is raised
as regards its legality, the same has to be adjudicated by
the concerned Court or the Tribunal, as the case may be,
on its own merits and in accordance with law.
The impugned order of the High Court in each case
stands quashed. The appeals are allowed leaving the
parties to bear their own costs.