JUDGMENT
B.H. Marlapalle, J.
1. This petition has been moved before us for the sole purpose to settle the position in law so far as this Court is concerned, in the matter of suspension of a Government employee under Rule 4 (1)(c) or 4(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (for short the Rules).
2. We shall briefly set out the facts of this case. The respondent was working as Naib Tahsildar at Badnapur, Dist. Jalna and while he was holding the said post a complaint came to be lodged with the Anti Corruption Bureau, alleging that the petitioner had demanded illegal gratification of Rs. 500/-, alongwith one Awal Karkoon Shri Prakash Tribhuwan, on October 10, 1997. The applicant came to be arrested on the same day and he was in police custody for more than 48 hours, as a result of the raid by the Anti Corruption Bureau, Jalna. This followed an order of suspension, issued by the Divisional Commissioner, Aurangabad on October 27, 1997. Simultaneously a charge-sheet also came to be filed before the Special Court at Jalna. The trial before the Special Court is pending as at present and in the meanwhile, the respondent submitted a representation to the Divisional Commissioner, on July 20, 1998 requesting to revoke the suspension order as the suspension period had exceeded six months or nine months, as the case may be. The Divisional Commissioner, rejected the said representation, on September 11, 1998 and therefore, the respondent approached the Maharashtra Administrative Tribunal Bench at Aurangabad, by filing Original Application No. 439 of 1998. He also prayed for interim relief by way of stay to the order of suspension and directions for reinstatement in service. The Tribunal by order dated January 10, 2000 admitted the Original Application and granted the prayer for interim relief by relying upon the judgments of this Court in the case of Khushal Janbaji Gaidhane v. State of Maharashtra and Ors. reported in 1986 Maharashtra Law Journal 235 and Namdeo G. Kalwale reported in 1998 (1) Maharashtra Law Journal 909. The Divisional Commissioner, in obedience of the order passed by the Tribunal, issued an order dated January 25, 2000 and reinstated the respondent. The interlocutory order of the Tribunal has thus been implemented and O.A.No. 1082/99 is still pending before the Tribunal.
3. Shri Sapkal, learned A.G.P. at the threshold submitted that this petition is being pursued by the Government for setting the controversy at rest in regard to the issue of State Government’s power to keep an employee under suspension, during the pendency of trial or enquiry or investigation or in contemplation of a departmental enquiry against the Government servant, in view of the conflicting decisions of this Court in the case of Khushal Janbaji Gaidhane (supra) and Namdeo G. Kalwale (supra) on one hand and Rambha Raghoji Rewatkar v. State of Maharashtra reported in 1986-I-LLJ-107 (Bom), on the other hand. It is further submitted before us that the impugned order passed by the Tribunal the judgments of this Court in the cases of Khushal Janbaji Gaidhane and Namdeo G. Kalwale, are solely based on the G.R. dated September 19, 1974. The relevant para of the said resolution is reproduced below:
“Government is also pleased to direct that if the investigations cannot be completed within a period of six months or the extension of time if any granted by the Chief Secretary, the order placing the Government servant under suspension should be revoked and he should be permitted to resume duties, by posting him to a different post and/or transferring him to a different place wherever possible. All cases in which the Government servants have already been under suspension should be reviewed in the light of these instructions and action taken to complete the
investigations as early as possible and to reinstate the Government servant who have been under suspension for over six months”.
The State Government has issued similar resolution on December 14, 1995 andJune 14, 1996 which have been relied upon in the case of Namdeo Kalwale (supra).
4. This Court in the case of Kushal Gaidhane, relied upon the Circular dated September 18, 1974 at the instance of the petitioner who was suspended by an order dated August 21, 1974 on account of investigations pending against him in Criminal Case filed under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The suspension order was challenged on the ground that inspite of the period of six months having been expired, the suspension order was continued illegally and in any case the delinquent could not be continued under suspension for a period of more than 9 months. The petitioner had approached this Court after a period of 17 months of suspension and by relying upon the Circular dated September 18, 1974, this Court quashed the suspension order and directed reinstatement of the petitioner. In the case of Namdeo Kalwale (supra) the suspension order was issued on July 28, 1995, as a result of some allegations of financial irregularities in the matter of purchase of medicines and by order dated January 11, 1996, the said suspension was revoked by the State Government. There was no progress in the departmental enquiry and inspite of this a second suspension order was passed on August 7, 1996. This was challenged before the M.A.T. unsuccessfully. The petitioner approached this Court and the Division Bench by relying upon the earlier judgment in the case of Khushal Gaidhane (supra) allowed the petition and directed reinstatement even though the Criminal trial was pending. The learned A.G.P. invited our attention to an earlier judgment of a Division Bench of this Court in the case of Rambhau Raghoji Rewatkar v. State of Maharashtra (supra) and urged that the judgments of this Court in the case of Khushal Gaidhane as well as Namdeo Kalwale were per incuriam inasmuch as the earlier judgment of the Division Bench in the case of Rambhau was not referred to in the latter cases.
5. The Circular dated September 18, 1974 came up for consideration for the first time before this Court in the case of Rambhau (supra) who was working as a sales tax officer and was placed under suspension pending investigation in respect of charges of demanding and accepting illegal gratification. The order of suspension was continued for about 15 months and a writ petition came to be filed before this Court praying for directions to revoke the suspension order in view of the Circular dated September 18, 1974. After examining the contents of the circular and the provisions of Rule 4 of the Rules made under Article 309 of the Constitution, this Court held:
The circular dated September 18, 1974 cannot be treated as a rule governing conditions of service namely suspension of Government employee and was, therefore, not enforceable in a Court of Law. The circular under consideration not having been issued or made under any of the rules which have been repealed, it could not be said to be saved under the rules. Under Rule 4(1)(c) of the Maharashtra Civil Services (Discipline and Appeal) Rules, the suspension would be co-terminous with the investigation or inquiry or trial which would not be indefinite in that sense of the term. The petitioner cannot be said to have been placed under suspension violating the principles of natural justice.
6. On the other hand, Shri Nagode, learned counsel appearing for respondent while supporting the order passed by the Tribunal has relied upon an order of this Court in the case of (i) Devidas Tulshiram Bute v. State of Maharashtra, reported in 1999(1) C.L.R. 661, (ii) judgment of the Madras High Court in the case of State of Madras v. K.A. Joseph 1970-I-LLJ-291 (Mad-DB) and (iii) judgment of the Delhi High Court in the case of K.K. Bhardwaj v. Delhi Viduyt Board and Ors. 1999-I-LLJ-1149(Del-DB).
In the case of Devidas (supra) disciplinary action against the government officers for the irregularities/indiscipline indulged in by them while handling the matter of Leather Cooperative Societies was proposed and therefore, they were suspended by an order dated June 29, 1998 by invoking the powers under Rule 4(c) of the Rules. The suspension orders were challenged before the M.A.T. and the challenge was turned down by judgment and order dated October 9, 1998. When the said suspension orders were brought in question before us, the Division Bench noted that no departmental enquiry had commenced against any of the petitioners and there were no criminal proceedings pending against any of them. It was also stated that no investigation in any criminal complaint was contemplated and it was under these circumstances, this Court prima facie recorded that it was a fit case for granting interim relief by way of stay to the suspension orders. The order in Devidas’s case is thus an interlocutory order and passed in the peculiar circumstances therein. In the case of State of Madras (supra) a Division Bench of the Madras High Court held that if an officer is suspended from office because of grave reports of misconduct or during the investigation of some charges, he was entitled to ask for revocation of such a suspension order if the suspension continued indefinitely or beyond a reasonable period. In the case of K.K. Bhardwaj (supra) the point considered by the Delhi High Court was whether on the facts and circumstances of the case at hand, the appellant was required to be continued under suspension till disposal of the criminal cases even after a lapse of more than 15 years in one case and 12 years in the other case. It was stated before the Delhi High Court that not a single witness was examined in the pending trial, the seriousness of the allegations and the charges against the appellant by itself could not be a justification for keeping the officers under suspension for such unduly long period of 10/15 years without any explanation much less reasonable explanation for the delay and no progress was made in the criminal cases. It was under these circumstances, the Delhi High Court set aside the suspension order dated January 8, 1987, in the Letters Patent Appeal.
7. Let us now turn to the provisions of Rule 4 of the Rules which deals with the issue of suspension.
“4. Suspension: (1) The appointing authority of any authority to which the appointing authority is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order may place a Government servant under suspension –
(a) where a disciplinary proceeding against him contemplated or is pending, or
(b) 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
(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report 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 front the date of his detention, if he is detained in police or judicial 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 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.
(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 it 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 to which that authority is subordinate.”
8. Sub-rule (1) of Rule 4 empowers the Government to place a government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or is pending,
(b) the employee is alleged to be engaged in activities prejudicial to the interest of the security of the State and
(c) Where a case against him in respect of any criminal offence is under investigation, enquiry or trial, whereas Sub-rule (2) deals with the concept of deemed suspension (a) in case where the employee is detained in police or judicial custody, whether on criminal charges or otherwise for a period exceeding 48 hours or (b) if in the event of conviction for an offence, the employee sentenced to a term of imprisonment exceeding 48 hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
Sub-rule (3) also deals with the Government’s power to place an employee under suspension where a penalty of dismissal, removal or compulsory retirement from service as imposed by the Government is set aside in appeal or on review and the order of suspension in such cases shall be deemed to have continued in force on and from the date of the original order of the dismissal, removal or compulsory retirement and shall remain in force until further orders. The same power is vested with the Government when such order of dismissal, removal or compulsory retirement is rendered void or set aside by a decision of Court of Law. Whereas sub-rule (5) states that an order of suspension made or deemed to have been made under this rule shall be continued to remain in force until it is modified or revoked by the authority competent to do so and Clause (c) of the said sub-rule provides enabling powers to the Government to modify or revoke the order of suspension. This provision is applicable to all categories of suspensions as set out in Sub-rule (1) to (4) and therefore, in every case the suspension shall continue to remain in force until it is modified or revoked by the authority competent to do so under Clause (a) thereto.
9. The learned A.G.P. referred to a judgment of the Supreme Court in the case of Director General and Inspector General of Police, Andhra Pradesh-Hyderabad and Ors. v. K. Ratnagiri , in support of his contentions that the order of suspension passed under Rule 4 of the Rules must continue to remain in force unless it is modified, reviewed or withdrawn by the competent authority and the circulars dated September 18, 1974 or the subsequent resolutions issued on December 14, 1995 and June 14, 1996 are only the internal circulars for the guidance of the officers and they do not create any vested right in favour of the suspended employees so as to approach a Court of Law or the Tribunal and seek directions for reinstatement or for quashing and setting aside the suspension order when the suspension has been effected by invoking the rules made under Article 309 of the Constitution. It is well settled that the administrative circulars or the Government resolutions cannot amend the rules framed under Article 309 of the Constitution. In the case of Director General and Inspector General of Police (supra) the relevant provisions of Rules 13(1) and 13(5) read as under in 1990-II-LLJ-388 at pp. 388, 389, 390:
“3. 13(1). A member of service may be placed under suspension from service pending investigation or enquiry into grave charges, where such suspension is necessary in the public interest.
Provided that where a member of a service has been suspended by an authority other than the Government and the investigation has not been completed and the action proposed to be taken in regard to him has not been completed within a period of six months of the date of suspension, the fact shall be reported to the Government, for such orders as they may deem fit.
13.2 to 13.4 xxxxx
13(5). An order of suspension made or
deemed to have been made under this rule
may, at any time, be 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 13(1) provides power to keep an officer under suspension from service pending investigation or enquiry into grave charges where such suspension is necessary in the public interest. Proviso thereunder requires the authority who made the order of suspension to report to the Government where the investigation into the charges and the action proposed to be taken against the officer has not been completed within the period of six months from the date of suspension, Upon receipt of the report, the Government may make such orders as deemed fit having regard to the circumstances or development in the case. The proviso thus imposes only an obligation on the authority to report to the Government, but it does not limit the period of suspension. It does not state that the suspension order comes to an end by the end of six months.”
While interpreting the said Rules the Apex Court held in 1990-II-LLJ-388 at pp. 388, 390:
“It may be noted that the suspension order is not an interim suspension. Nor the Rule 13(1) limits its operation only for six months. Rule 13(5) provides that the order of suspension may, at any time be revoked by the authority who made or is deemed to have made the order or by any authority to which that authority is subordinate. That apparently suggests that the order of suspension once made will continue to operate till it is revoked by an appropriate order. Therefore, there appears to be no justification to contend that the order of suspension would not last beyond six months. It has been passed by the competent authority who shall report to the Government if the action is not completed within six months. The Government may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority.”
It is therefore, contended that the provisions of Rule 4 of the rules are in pan materia with the rules in the case of Andhra Pradesh (supra) which came to be interpreted by the Apex Court and therefore, the only conclusion that is re- ‘ quired to be drawn is that the order of suspension shall continue to be in operation unless it is revoked, or reviewed by the competent authority under Sub-rule (5) of Rule 4.
10. There can be no dispute that a Government servant cannot be kept under suspension indefinitely or for an unreasonably long period and the same is not contemplated under Rule 4 of the Rules as well. A provision is made empowering the Government to review or revoke such an order of suspension in appropriate cases. If the employee approached the State Government requesting to revoke the suspension order under Rule 4(5) of the Rules and. the said request is declined or remains undecided beyond a reasonable period, undoubtedly the delinquent employee has the right to challenge the Government’s decision before a competent Court and the Court will have the power of judicial review of such an order. The scheme of the rules is clear and does not call to be reinstated time and again. The delinquent’s approach can be at any time and the same is required to be considered by the competent authority within a reasonable period.
11. In the case of State of Himachal Pradesh v. B. C. Thakur, reported in 1994 (27) A.T.C. 567 the Supreme Court upheld the order of the Tribunal quashing the suspension order, where the employee had been under suspension for three years and no substantial progress in the disciplinary proceedings had been made. In the case of Allahabad Bank and Anr. v. Deepak Kumar Bhola , the Supreme Court held that the order of suspension was required to be continued till the conclusion of the prosecution as initiated by the C.B.I. on the ground that the allegations made against the delinquent employee were serious and involved the case of moral turpitude. In the case of Secretary to Government, Prohibition and Excise Department v. L.Srinivasan , the Government servant was suspended on account of charges of embezzlement and fabrication of records, criminal trial on those charges were pending and the Administrative Tribunal interfered with the suspension order. The Supreme Court held that in quashing the suspension order the Tribunal had committed grossest error in its exercise of judicial review and the learned member exercised power as if he was an appellate forum de hors the limitations of judicial review. It was further held that the Tribunal had exceeded the power of judicial review in quashing the suspension order at the threshold. In the case of State of Karnataka and Anr. v. T. Venkataramanappa , the Government officer came to be suspended pending criminal trial on account of a charge of bigamy. The employee was acquitted and the Supreme Court held that this continued suspension during departmental enquiry was not warranted. In the case of Secretary to Government and Anr. v. K. Munniappan , the Supreme Court upheld the right of the Government to issue suspension order even after retirement of the Government employee in case of the charges of embezzlement of the Government funds. The list of enunciations could be much lengthy on the point of government’s right to place a servant under suspension during the pendency of enquiry, criminal trial or investigation of any criminal offence. However, such a right is required to be exercised with care and caution and in cases where it is reasonable and proper. The order of suspension not only causes financial loss but also a social disadvantage to a Government servant, though the order of suspension does not put an end to the employee’s service and he continues to be a member of the service, inspite of the fact that he is not permitted to work and he is paid only subsistence allowance. The Supreme Court in the case of Copt. M. Paul Antony v. Bharat Gold Mines Ltd. and Anr. had an occasion to deal with the suspension syndrome and observed thus at p. 1101 of LLJ:
“29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by “suspension syndrome” and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee’s trivial lapse which has often resulted in suspension. Suspension notwithstanding, non- payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of “subsistence allowance”, so that the employee may sustain himself.”
In the case of State of Orissa v. Bimal Kumar Mohanti , the Apex Court inter alia, held that the suspension pending enquiry is not an order of punishment and it is a procedural suspension inasmuch as the delinquent is refrained to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty or conduct unbecoming of a Govt. servant would pay fruits and the offending employee could get away even pending enquiry without impediment or to prevent an opportunity to such an employee to scuttle the enquiry or investigation or to win over the witnesses. The Apex Court also specifically observed that each case of suspension must be considered depending upon the nature of allegations, gravity of the situation and the indelible impact that creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation and the suspension must be a step in aid to the ultimate result of the inquiry or investigation.
12. On perusal of the provisions of Rule 4 it is clear that the State Government has the powers to place an employee under suspension in the cases set out therein and even in the cases of suspension falling under Clause (o) of Sub-rule 1 or Sub-rule 2, the suspension can be continued till the completion of enquiry or trial as the case may be depending upon the facts and circumstances of a given case. The suspension need not be continued till the completion of the trial or investigation in every case. The facts of each case will have to be considered on their own merits. If the suspension is continued for a reasonably longer period, may be beyond a period of one year or so, the delinquent employee has a legal right to approach the Government by way of a representation praying for revoking or withdrawing the suspension order and such a request will have to be considered by taking into consideration the progress in the investigation, the nature of the charges, the causes for delay in such investigation/trial and other attending circumstances. In a given case the employee may be justified in approaching under Sub-rule 5 of Rule 4 of the Rules immediately on receipt of the suspension order without waiting for six months or nine months, as the case may be. The representation of the delinquent employee, so made, should be heard and decided within a reasonable period and this reasonable period could be about two to three months. The delinquent employee’s direct approach to the Tribunal or to a Court of law challenging the suspension order should not be ordinarily entertained unless he has approached the competent authority by invoking the provisions of Rule 4(5) of the Rules. We may also state that the State Government or the competent authority is obliged to pass a speaking order while either allowing or rejecting the representation so made and such an order will be subject to a judicial review by the Tribunal or by this Court. The learned A.G.P. is right in his submissions that when this Court decided the cases of Khushal Gaidhane and Namdeo Kalwale, the law laid down by the earlier Division Bench in the case of Rambhau (supra) and Machindra Pandurang Chavan v. State of Maharashtra 1989- n-LLJ-353 (Bom-DB) was not referred to and therefore, this Court had no occasion to discuss and decide the status of the Government circulars or the resolutions that were relied upon. Such circulars or resolutions are for the purpose of providing guidance to the departmental authorities and while considering the request for revoking the suspension order as made by the delinquent employees, these circulars may be taken into consideration by the competent authority. However, on the basis of the said circulars, per se, the order of suspension cannot be set aside by the Tribunal.
13. In the case at hand though the impugned order of the Tribunal is not justified we do not wish to interfere with the said order at this juncture when the employee has already been reinstated and working for about one year or so and we have considered this petition solely for the purpose of clarifying the position in law at the request of the Government.
14. In the premises, we hold as under:
(a) The order of suspension issued under Rule 4 of the rules can be sought to be reviewed or revoked by the suspended employee by way of representation under Sub-rule 5 thereof, (b) Such a representation can be filed at any time and rejection of a representation may not operate as a bar in filing a subsequent representation for review/revocation,
(c) The representation so filed ought to be decided within a reasonable period of two to three months and by taking into consideration the nature of charges, progress in enquiry, investigations/trial as the case may be including the reasons for delay and other attending circumstances in each case as well as the policy decision of the State Government,
(d) Challenge to the order of suspension should not be ordinarily entertained by the Tribunal/Court directly unless the remedy as provided under Rule 4(5) is exhausted by the delinquent employee,
(e) if the representation filed by the delinquent employee under Rule 4(5) of the Rules is not decided within a period of two to three months or if the same is rejected, the employee has the right to approach the Tribunal and the order of the Government is subject to the judicial review,
(f) an order of suspension issued pending enquiry, investigation or trial, as the case may be, shall continue to operate till such enquiry, investigation and/or trial is completed and the suspension order cannot be quashed and set aside by the Tribunal on the basis of the circular dated September 18, 1974 or the resolutions dated December 14, 1995 and June 14, 1996. The order of suspension is subject to a judicial review by the Tribunal depending upon the facts and merits of each case,
(g) the State Government/competent authority ought to review the pending
suspension cases every quarter and take the requisite steps to conclude the enquiry, investigation/trial as early as possible.
15. We direct the Divisional Commissioner at Nasik and Aurangabad to take the review of all the pending suspension cases in the districts under this Bench and submit a detail action taken report to the registry of this Bench within a period of three months.
16. Rule made absolute accordingly. Costs in cause. Writ to go forthwith to the authorities concerned.