Punjab-Haryana High Court
State Of Haryana And Others vs Central Administrative Tribunal on 31 March, 2009
Bench: Ashutosh Mohunta, Uma Nath Singh
C.W.P. No. 11146-CAT of 2008 [ Page numbers ]
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
C.W.P. No. 11146-CAT of 2008
Date of Decision: March 31,2009
State of Haryana and others .................................... Petitioners
Versus
Central Administrative Tribunal
and others ................................................................. Respondents
Coram: Hon'ble Mr. Justice Ashutosh Mohunta
Hon'ble Mr. Justice Uma Nath Singh
Present: Mr. K.S.Kundu, Advocate
for the petitioner.
Mr. R.K.Sharma, Advocate
for the respondent No.2.
....
ASHUTOSH MOHUNTA, J. (Oral)
The State of Haryana has filed this writ petition challenging the order dated 17.4.2008 (Annexure P-8), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short "Tribunal") in O.A.No.562-CH-2006, whereby the prayer of Shri M.S. Malik, Respondent No.2 (for short "applicant"), for quashing the 29.10.2005, 9.3.2006 and 4.9.2006 extending his suspension period from a point, after lapse of initial period of 90 days, was allowed and those three orders were quashed and set aside.
In sum and substance, interpretation of rule 3 of the All India Services (Discipline & Appeal) Rules, 1969 (for short "AIS (D&A) Rules, C.W.P. No. 11146-CAT of 2008 [ Page numbers ] 969") dealing with initial suspension of Members of All India Services, extension of such suspension and in case of non-extension during currency of suspension, automatic revocation thereof is involved.
The facts in brief are that the applicant was posted as Director General of Police, Haryana, w.e.f. 6.1.2000 to 7.4.2004 and 1.6.2004 to 11.1.2005.
Subsequently, while posted as Director General/ OSD Rules, Haryana, he was placed under suspension vide order-dated 14.6.2005, with immediate effect. This order was challenged by the applicant in O.A.No.578-CH-05. During the pendency of the said Original Application, applicant was issued a charge sheet dated 3.8.2005 relating to creation of Haryana State Industrial Security Force and recruitment to various cadres despite the fact that even the Act namely Haryana Industrial Security Force Act, 2003 was enacted by the then Government and various recruitments were made by the recruiting authorities as reflected in the charge sheet. The Tribunal quashed the suspension of the applicant vide order dated 6.9.2005 holding that the order was not strictly as per the requirements of rule 3 of AIS (D&A) Rules, 1969 and there were no grounds which existed on 14.6.2005 to place the applicant under suspension. In totality it was held that without forming an opinion as to whether there was any case against the applicant or not, he was firstly placed under suspension and to justify such suspension, he was served with the charge sheet dated 3.8.2005 (Annexure P-2).
The aforementioned order dated 6.9.2005 has been challenged by the petitioner through CWP No.17400 of 1998. While admitting the said writ petition, this Court had granted the stay on operation of the order on C.W.P. No. 11146-CAT of 2008 [ Page numbers ] 6.9.2005. The review committee recommended the extension of period of suspension of the applicant for a further period of 180 days w.e.f. 13.9.2005 in meeting dated 24.10.2005, which period was further extended for 180 days on 9.3.2006 and lastly extended vide order-dated 4.9.2006 till 31.10.2006 when the applicant retired from service on attaining the age of superannuation. The applicant had filed an appeal/representation against order dated 9.3.2006 on 8.5.2006 which was not decided and consequently he preferred Original Application No.562-CH-2006 challenging the three orders of extension of suspension, on various grounds including the violation of rule 3 of AIS (D&A) Rules, 1969 and discrimination against him vis a vis other officers who dealt with the case which was subject matter of the charge sheet. The applicant also alleged malafide against the members of the review committee particularly against Shri Nirmal Singh, then DGP who was arch rival of the applicant because of prolonged litigation between them particularly contest for the post of DGP etc. The Tribunal vide impugned order dated 17.4.2008, did not record any finding on the malafide as none of the officers was impleaded by name, however, it allowed the Original Application placing reliance on the earlier order passed by it's Coordinate Division Bench in the case of Farooq Khan, IPS Vs. State of J&K & Others O.A.No.59-JK-2004 and O.A.No.241-JK-2004. Taking into consideration rule 3 (8)(a) of AIS (D&A) Rules, 1969. The Tribunal held as under:
"12. A bare perusal of the rule produced above leaves no scope of doubt in our mind that an order of suspension passed under rules of 1969, which has not been extended, shall be valid for a period of not exceeding ninety days and if it is extended, it shall remain valid for a further period of not C.W.P. No. 11146-CAT of 2008 [ Page numbers ] exceeding 180 days at a time, unless it is revoked earlier. The order of suspension is to be reviewed by the competent authority on the recommendation of the Review Committee and the composition and functions of the review committee and the procedure to be followed by them is specified in the schedule. Thus, the framers of the rules were very clear in their mind that the suspension ordered under rules of 1969, shall be valid for a period of 90 days only and if it is to be extended, it shall not be beyond 180 days and the most relevant part is that such extension has to be made prior to expiry of period given in the suspension order of an officer. Thus, if a running suspension order is not extended before it completes its life term given in that order such suspension shall come to an end and die its natural death."
It was held that if order of suspension is not reviewed and extended by an order to be passed before expiry of initial period of 90 days, suspension has to be treated as revoked on expiry of 90 days and any order of continued suspension of an incumbent after such date, has to be treated as illegal. Considering the rules of 1969 and finding that suspension order of applicant had come to an end on 12.9.2005, as no review had taken place prior to 12.9.2005, it was held that such suspension could not be extended retrospectively.
It has been argued by learned counsel for the petitioner that there is no violation of rule 3 AIS (D&A) Rules, 1969 and order dated 29.10.2005, should be deemed to have been passed w.e.f. 13.9.2005 and that there is no automatic revocation of suspension and that rules itself contemplate deemed suspension. It has also been argued that the second O.A. was not maintainable as the suspension was subject matter of the earlier O.A. These contentions have been vehemently opposed by learned C.W.P. No. 11146-CAT of 2008 [ Page numbers ] counsel for the applicant, who supported the impugned order. As regards non maintainability of second O.A. it has been submitted that earlier O.A. was against the basic order of suspension and second O. A. was against illegal extension of suspension which was a separate cause of action and as such O.A. was maintainable.
In order to appreciate the controversy involved in the case and rival contentions of the parties, it would be appropriate to peruse rule 3 of AIS (D&A) Rules, 1969, relevant extract of which is reproduced as under:
"3. Suspension.-(1) If, having regard to the circumstances in any case and, where articles of charge have been drawn up, the nature of the charges, the Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that Government may-
3(1)(a) if the member of the service is serving under that Government, pass an order placing him under suspension, or 3(1)(b) if the member of the Service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the disciplinary proceedings and the passing of the final order in the case.
Provided that, in cases, where there is a difference of opinion-
(i) between two state Governments, the matter shall be referred to the Central Government for its decision;
(ii) between a State Government and the Central Government, the opinion of the Central Government shall prevail:
..
C.W.P. No. 11146-CAT of 2008 [ Page numbers ] 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 days from the date 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".
(8)(a) An order of suspension made under this rule which has not been extended shall be valid for a period of not exceeding ninety days and an order of suspension which has been extended shall remain valid for a further period not exceeding one hundred eighty days, at a time, unless revoked earlier.
3(8)(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. 3(8)© 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.
3(8)(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 C.W.P. No. 11146-CAT of 2008 [ Page numbers ] clause, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed."
The perusal of above extracted rule clearly indicates that the order of suspension made under that rule which has not been extended shall come to an end on expiry of 90 days. Meaning thereby, the extension if any, has to be done during the validity period of the initial suspension otherwise the said suspension would not be valid after 90 days. This provision was made to protect the interests of the Members of the All India Services, so as to have a check on the authorities not to prolong the suspension by mis-use of the power of suspension or its extension, whether there be any justification or not. In other words, the aim and intention of the legislature was to lay down a clear cut guideline that extension of suspension period has to be on or before the date of expiry of earlier suspension and once such time limit has expired, the suspension would automatically come to an end. This is the only interpretation, which is logical and acceptable. Petitioner cannot devise a different method than one provided in the rules. Once a particular method has been prescribed by the legislature in the statutes, the same has to be followed in its true letter and spirit. We find support for this from the law declared by the Hon'ble Supreme Court in Chandra Kishore Jha Vs. Mahavir Prasad & Others, JT 1999 (7) SC 256. It was held therein that it is well settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. For this reliance has been placed upon Nazir Ahmad v. King Emperor, AIR 1936 PC 253, Rao Shiv Bahadur Singh & Anr. V. State of Vindhya C.W.P. No. 11146-CAT of 2008 [ Page numbers ] Pradesh, AIR 1954 SC 322: State of Uttar Pradesh v. Singhara Singh & Others, AIR 1964 SC 358. The State Government justified the order dated 29.10.2005 by saying that the said order is effective from 13.9.2005. As a matter of fact period of 90 days had already expired even prior to the meeting of the review committee which took place on 24.10.2005 and the period of 90 days had expired even after giving the grace of 9 days between the passing of the initial order of the Tribunal on 6.9.2005 and stay of the said order by this Court on 15.9.2005. There is no force in the contention of the petitioner that the order dated 29.10.2005 would relate back to 13.9.2005. As a matter of fact said order cannot be passed with retrospective effect. Furthermore, it is not a case of deemed suspension as sought to be projected by petitioner. Once the initial period of 90 days had expired, suspension order does not remain valid.
There is no force even in the second contention of petitioner that second Original Application was not maintainable. As rightly pointed out by learned counsel for Respondent No.2 that second O.A. was on different cause of action and was maintainable. It has also been recorded by the Tribunal that even on his representation/appeal made by the applicant to the Government of India, the State Government did not furnish comments so that the Government of India could apply its mind to the continued suspension of the applicant. The findings recorded by the learned Tribunal on these issues, on the basis of material available before it, are justified.
It goes without saying that if the order of the initial extension dated 29.10.2005 is invalid, further extension orders dated 9.3.2006 and 4.9.2006 cannot be on better footing and those orders would automatically become invalid.
C.W.P. No. 11146-CAT of 2008 [ Page numbers ] The leading case dealing with the suspension of members of the All India Services is by a Constitution Bench of the Hon'ble Supreme court in P.R. Nayak Vs. Union of India & Others, 1972 SLR, Page 219 wherein it has been held in para 66 as under:
"There is no gainsaying that there is no inherent power of suspension postulated by the Fundamental Rules or any other rule governing the appellant's conditions of service. Except for r.3 of the A.I.S. (D&A) Rules, 1969, no other rule nor any inherent power authorizing the impugned order of suspension was relied upon in this court in its support. Therefore, if r.3, which is the only rule on which the appellant's suspension pending disciplinary proceedings can be founded, does not postulate an order of suspension before the initiation of disciplinary proceeding and the Government initiating such proceedings can only place under suspension the member of the Service against whom such proceedings are started, then, the impugned order of suspension which in clearest words merely states that disciplinary proceedings against the appellant are contemplated, without suggesting actual initiation or starting of disciplinary proceedings, must be held to be outside this rule. The impugned order of suspension, it may be pointed out, is not like an order of suspension which, without adversely affecting the rights and privileges of the suspended Government servant merely prohibits or retrains him from discharging his official duties or obligations. An order of that nature may perhaps be within the general inherent competence of an appointing authority when dealing with the Government servant. The impugned order made under r. 3 of A.I.S. (D&A), Rules 1969 on the other hand seriously affects some of the appellant's rights and privileges vesting in him under his conditions of service. To mention some of the disabilities resulting from his suspension, he is not entitled to get his full salary during suspension, but is only to e paid C.W.P. No. 11146-CAT of 2008 [ Page numbers ] subsistence allowance and in certain circumstances some other allowances: in order to be entitled to the subsistence allowance he is prohibited from engaging in ay other employment, business, profession or vocation vide r. (4) : the appellant is not permitted to retire during the period of suspension: indeed, the impugned order specifically prohibits the appellant even from leaving New Delhi during the period of suspension without obtaining the previous permission of the Central Government. The fact that these prejudicial consequences automatically flow from the impugned order under the rules also lends support to our view tat the clear and explicit language of r 3 must not be so strained to the appellant's prejudice as to authorize an order of suspension on the mere ground that disciplinary proceedings against him are contemplated. Thus precise words of r. 3 are unambiguous and must be construed in their ordinary sense. The draftsman must be presumed to have used the clearest language to express the legislative intention. The meaning being plain, courts cannot scan its wisdom or policy".
Additionally we may point out that a perusal of the orders dated 29.10.2005, 9.3.2006 and 4.9.2006 would disclose that the extension in suspension of the applicant is on the same grounds i.e. his continuation under suspension is necessary as charges are of serious nature and he may tamper with the records or influence the concerned officer/official by virtue of holding a senior position.
Undisputed position is that the applicant had already been removed from the post of Director General of Police and was posted as OSD Rules which is a non-cadre post and at the time of his initial suspension he was posted as such and ultimately retired from the same post. A perusal of the orders impugned before the Tribunal show that it was only apprehension of the petitioner and there is no evidence documentary or otherwise either C.W.P. No. 11146-CAT of 2008 [ Page numbers ] produced on record or even argued either before the Tribunal or before this Court that the applicant actually made an effort to tamper with the record or influence the officers or officials. A perusal of the charge sheet, Annexure P-3, along with list of documents and list of witnesses shows that the entire record upon which the petitioner relied upon are in the custody of the Government over which the applicant has no control. The list of the witnesses also shows that there were three senior Police officers of the rank of IGP, DIG and AIG and other officers are from the office of Financial Commissioner-cum-Secretary to Government, Haryana, Home Department, who were neither in the control of the applicant and the applicant at no point of time during the posting as OSD Rules had any control over them. It was rightly pointed out during the course of hearing that the post of OSD Rules is a non cadre post and is created, upgraded or downgraded to side line inconvenient officers and the said post had been manned in the past by officers of the rank of DIG, IG, ADG and DGP without change of nature of duties. There is no work much less to the status of the DGP. The Tribunal has recorded a finding that in his capacity as OSD Rules, there was no ground even to suspend the applicant. The perusal of Original Application, Annexure P-6 shows that besides the plea on the basis of rules the applicant had also taken the plea of discrimination in the matter of suspension and specifically pleaded in para 5 (vi) of the O.A. that the action against the applicant was arbitrary, discriminatory and violative of articles 14 and 16 of the constitution as no action was either initiated or contemplated against recruiting agencies or supervising officers responsible for omission and commission for recruitment of HSISF.
Similarly no action has been taken against officers of C.W.P. No. 11146-CAT of 2008 [ Page numbers ] administrative department, i.e. sanctioning authority, Finance Department in the State Government or other Director general of Police, involved in the process therefore applicant has been discriminated even in the mater of suspension and has been singled out to made a scope goat. In response to this para the State Government in para 5 (vi) of their reply (Annexure P-7) at page 56 of paper book, have stated that the State Government had constituted a Commission of Enquiry to determine involvement of all culprits and thereafter action would be initiated. It has been pointed out by learned counsel for applicant that what to talk of suspension or extension of suspension even no officer either from Police Department or from the Home Department or from the finance Department has been issued either any charge sheet and no action has been taken. The facts reveal that creation of HSISF and recruitment cannot be one man show. So many officers, departments and authorities are involved in it.
The Hon'ble Supreme Court in a latest judgment titled Man Singh Vs. State of Haryana & Others, 2008 (3) SCT 364, has held that the doctrine of equality and fair play is applicable even to the administrative action and the departmental proceedings and the Hon'ble Supreme Court in para no. 18 of the report has held as under: -
"We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power, whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary and unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, C.W.P. No. 11146-CAT of 2008 [ Page numbers ] but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of fair play and reasonableness".
Besides the above conclusion, we may also record that the suspension or continued suspension of a member of the All India Services should not be whimsical and has to be based on some material on record. Power to suspend should not be exercised in a mechanical and whimsical manner. The power to suspend must be exercised with object sought to be achieved. Perusal of three orders extending suspension shows that the same phrase has been recited without there being any iota of evidence that the applicant has ever tried to indulge in tampering with evidence or influencing the witnesses. As discussed above, the applicant had no control over the records or the witnesses. Neither witnesses were under his control nor was the record within his reach, even when he was posted as DGP OSD (Rules). At the most it could be said that the purpose was to keep him away from records and witnesses, which already stood achieved by posting him as DGP/OSD Rules.
During the course of arguments, it was pointed out by the learned counsel for the applicant that as a result of the continued suspension, he has not been paid pay and allowances since 2005 and even his provisional pension has been fixed as per salary drawn by him before suspension. Besides, the benefit of revised pay scales effective from 1.1.2006 has also not been granted to him causing recurring financial loss C.W.P. No. 11146-CAT of 2008 [ Page numbers ] to applicant during his retired life.
Thus, quashing of the orders of extension of suspension of applicant, by the Tribunal is fictional for the purpose of these benefits and as a matter of fact, applicant cannot join his duties having already retired. Thus, the findings recorded by the Tribunal are just and proper and do not suffer from perversity. The petitioner has failed to make out a case warranting our interference in the impugned order.
Finding no merit in the Writ Petition, we dismiss the same but leaving the parties to bear their own costs.
( ASHUTOSH MOHUNTA ) JUDGE ( UMA NATH SINGH ) JUDGE 31.3.2009 rupi