Chattisgarh High Court
State Of Chhattisgarh vs Rajnesh Singh on 6 September, 2022
Bench: Arup Kumar Goswami, Parth Prateem Sahu
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No. 6750 of 2021
1. State of Chhattisgarh, through the Secretary, Home (Police)
Department, Mahanadi Bhawan Mantralaya, New Raipur Tahsil
and District Raipur (Chhattisgarh)
2. Under Secretary Home Department, Government of Chhattisgarh,
Mahanadi Bhawan, Mantralaya, New Raipur, Tahsil and District
Raipur (Chhattisgarh)
3. Director General of Police, Police Head Quarter, Chhattisgarh, New
Raipur District- Raipur (Chhattisgarh)
---- Petitioners
Versus
1. Rajnesh Singh S/o Shri S.R.Singh aged about 49 years,
Superintendent of Police (Suspended), R/o M-5, Agroha Society,
Ring Road, Raipur District Raipur (Chhattisgarh) 492010 Mobile
No. 7000619819
2. Union of India, through the Secretary, Ministry of Home Affairs
(Police-I Division) North Block New Delhi 110001
---- Respondents
(Cause Title taken from Case Information System) For Petitioners : Mr. Jitendra Pali, Deputy Advocate General For Respondent No.1 : Mr. A.K.Behra, Senior Advocate assisted by Mr. Praveen Das and Mr.Abhishek Gupta, Advocates 2 For Respondent No.2 : Mr. Ramakant Mishra, Assistant Solicitor General along with Tushar Dhar Diwan, Central Government Counsel Date of Hearing : 12.08.2022 Date of Judgment : 06.09.2022 Hon'ble Mr. Arup Kumar Goswami, Chief Justice Hon'ble Mr. Parth Prateem Sahu, Judge C A V Judgment Per Arup Kumar Goswami, Chief Justice Heard Mr. Jitendra Pali, learned Deputy Advocate General, appearing for the petitioners. Also heard Mr. A.K.Behra, learned senior counsel, assisted by Mr. Praveen Das and Mr. Abhishek Gupta, learned counsel, appearing for the applicant / respondent No. 1 herein as well as Mr. Ramakant Mishra, learned Assistant Solicitor General alongwith Mr. Tushar Dhar Diwan, learned Central Government counsel, appearing for the respondent No. 2.
02. This writ petition is filed challenging an order dated 16.11.2021 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (for short, the CAT) in Original Application No.203/573/2020 (for short, the OA) filed by the applicant by which the OA was partly allowed.
03. By the said OA, the applicant had challenged an order dated 09.02.2019 whereby, in exercise of powers conferred under Section 3(1) of the All India Services (Discipline and Appeal) Rules, 1969, for short, "the Rules of 1969", the applicant was suspended in contemplation of 3 disciplinary enquiry as also the orders dated 08.04.2019, 05.08.2019, 30.01.2020 and 28.07.2020, whereby the period of suspension was extended in terms of Rule 3(8)(d) for a period of 120 days with effect from 09.04.2019, for a period of 180 days with effect from 06.08.2019, for a period of 180 days with effect from 01.02.2020, for a period of 180 days with effect from 29.07.2020 and for a period of 180 days with effect from 24.01.2021. The applicant had also challenged the order dated 28.09.2020 by which the appeal preferred by him was dismissed.
04. The order of suspension dated 09.02.2019, as translated by the applicant, reads as follows:
"Government of Chhattisgarh Home (Police) Department Mantralaya Mahanadi Bhavan Atal Nagar, Raipur // Order // Raipur, dated 09.02.2019 S.N./F-02-01/2019/ 2-Home / IPS : Whereas there is erroneous entry at complaint Sr. No.348/2014 dated 04.12.2014 in the office file/R-Complaint Register of Crime No. 09/2015 in State Economic Offence Investigation Bureau, Chhattisgarh and whereas it is contemplated to initiate Departmental action against Shri Rajnesh Singh IPS (CG-SPS) under All India Service (Conduct) Rules, 1968 for violation of Rule 3 for the above Rules.
2/. Whereas considering the above circumstances the State Government has decided that it is necessary to put Shri Rajnesh 4 Singh, Superintendent of Police, District Narayanpur (C.G.) under suspension.
3/. Now, therefore in exercise of the powers under Rules 3(1) of All India Service (Discipline and Appeal) Rules, 1969, the State Government hereby places Shri Rajnesh Singh IPS (CG-SPS) Superintendent of Police, District Narayanpur (C.G.) under suspension with immediate effect.
4/. During the period of suspension the Headquarters of Shri Rajnesh Singh IPS (CG-SPS) shall be Police Headquarters, Raipur. During the period of suspension Shri Rajnesh Singh will be entitled to subsistence allowance as per rule.
In the name and by the order of Governor of Chhattisgarh Sd/-
(Leena Kamlesh Mandavi) Deputy Secretary Home (Police) Department"
05. In the charge-sheet dated 06.03.2019, the following three charges were laid :
**vkjksi dzekad&01 Jh jtus'k flag] ¼Hkk0iq0ls0½ fnukad 05-12-2014 ls fnukad 14-07-2017 rd iqfyl v/kh{kd ,UVh djI'ku C;wjksa] ¼N0x0½ ds in ij inLFk Fks A bl vof/k ds nkSjku vius v/khuLFk vf/kdkfj;ksa ls o"kZ 2014 ds] dk;kZy;hu nLrkostksa ,oa vkj f'kdk;r jftLVj esa cSad MsV esa 5 izfof"V;kWa djok;k x;k A bl izdkj Jh jtus'k flag] dk mDr d`R; vf[ky Hkkjrh; lsok ¼vkpj.k½ fu;e&1968 ds fu;e 3 dk mYya?ku gS A **vkjksi dzekad&02 Jh jtus'k flag] ¼Hkk0iq0ls0½ orZeku esa fuyafcr }kjk jkT; vkfFkZd vijk/k vUos"k.k C;wjksa ds vijk/k dzekad 09@2015 esa dk;eh fnukad ds iwoZ fu;eksa ,oa izko/kkuksa dk mYy?kau dj vke ukxfjdksa dk Qksu Vsfiax djk;k x;k ,oa mls foospuk ds nkSjku lk{; ds :i esa mi;ksx djk;k x;k rFkk dkWy Vsfiax ds tfj;sa izkIr tkudkjh dks U;k;ky; esa lk{; ds rkSj ij izLrqr djk;k x;k A bl izdkj Jh jtus'k flag] dk mDr d`R; vf[ky Hkkjrh; lsok ¼vkpj.k½ fu;e&1968 ds fu;e 3 dk mYya?ku gS A vkjksi dzekad&03 Jh jtus'k flag] ¼Hkk0iq0ls0½ orZeku esa fuyafcr }kjk vius in dk nq:i;ksx dj 'kklu dks xqejkt fd;k tkdj yksdlsod ds in ij jgrs gq;s vius inh; drZO;ksa dk fuoZgu LosPNkpkfjrk iwoZd fd;k x;k A Jh jtus'k flag] dk mDr d`R; vf[ky Hkkjrh; lsok ¼vkpj.k½ fu;e&1968 ds fu;e 3 dk mYya?ku gS A**
06. Translated version in English would read as follows :
"Charge No.01 Shri Rajnesh Singh (IPS) was posted as Superintendent of Police, Anti Corruption Bureau (C.G.) from 05.12.2014 to 14.07.2017. During this period, back-dated entries were caused to be made in the official documents and complaint 6 register of the year 2014 through his subordinate officers. Thus, the said act of Shri Rajnesh Singh is in violation of Rule 3 of the All India Services (Conduct) Rules, 1968. Charge No.02 Shri Rajnesh Singh (IPS), who is under suspension, before the date of registration of Crime No.09/2015 in State Economic Offenses Investigation Bureau, had resorted to phone tapping of common citizens by violating the rules and regulations and the same was used as evidence during investigation and information obtained through phone tapping was presented as evidence before the court. Thus, the said act of Shri Rajnesh Singh is in violation of Rule 3 of the All India Services (Conduct) Rules, 1968.
Charge No.03 Shri Rajnesh Singh (IPS), who is under suspension, while working as a public servant, misused his office, misguided the Government and discharged his duties arbitrarily on his own terms. The said act of Shri Rajnesh Singh is in violation of Rule 3 of All India Services (Conduct) Rules, 1968."
07. The CAT, on consideration of Rule 3(1B) of the Rules of 1969 had held that as per the said Rule, it is the Central Ministry's Review Committee, which is the competent authority to recommend continuation of suspension beyond one year and as the extension of the suspension period of the applicant beyond one year was done by the State Government without such recommendation, extension of suspension of 7 the applicant beyond one year was not valid. Taking note of Rule 18(4) of the Rules of 1969, it was held by the CAT that the disposal of the appeal preferred by the applicant was not in accord with Rule 18(4) of the Rules of 1969, and accordingly, orders extending the suspension of the applicant beyond the period of one year as well as the order dated 28.09.2020 were quashed and the petitioners were directed to pass necessary orders regarding revocation of suspension of the applicant with all consequential benefits, within a period of two months from the date of receipt of a copy of the order.
08. A perusal of the order of the CAT would go to show that initial order of suspension was not interfered with.
09. It is submitted by Mr. Pali that in terms of Rule 3(8)(c) read with Schedule I of the Rules of 1969, the State Government had constituted a Review Committee and the Review Committee, on due consideration of the relevant aspects of the matter, had made recommendations for extension of suspension period of the applicant from time to time, which was duly accepted by the competent authority and accordingly, suspension period of the applicant was extended from time to time. It is submitted by Mr. Pali that in view of grant of stay of departmental proceeding by CAT in another OA, having regard to the 2 nd proviso to Rule 3(1B) of the Rules of 1969, the period during which stay was operating would stand excluded from the limit of one year prescribed in 1st proviso to Rule 3(1B), and therefore, the State Government was competent to extend suspension period. It is submitted that the CAT misconstrued Rule 3(1B) of the Rules of 1969 and on such erroneous 8 interpretation, had set aside the orders of extension passed by the State Government. It is submitted that if there was no stay of the departmental proceeding, the petitioners would have concluded the departmental proceeding within a period of one year and if for any reason, the same was not possible, request would have been made to the Central Ministry's Review Committee for further extension of suspension. It is further submitted that the CAT did not consider the merits of the order passed by the appellate authority, and only on the purported ground that Rule 18(4) was not complied with, set aside the order of the appellate authority on a hyper-technical ground that the appeal should not have been decided taking note of comments of the State Government as comments were sent by the State Government to the Central Government beyond the period of one month from the date of receipt of the appeal by the State Government. Accordingly, he submits that it is a fit case for interference with the order of the CAT.
10. On the other hand, Mr. A.K.Behra, learned senior counsel for the applicant supports the reasoning given by the CAT in coming to the conclusion that the orders extending suspension period was in violation of Rule 3(1B) of the Rules of 1969 as it is an admitted position that the extension beyond the period of one year was not made on the recommendation of the Central Ministry's Review Committee and therefore, no interference is called for with the order of the CAT. It is submitted that the main provision of Rule 3(1B) is similar to grant of default bail and 1st proviso to Rule 3(1B) is mutually exclusive of the 2 nd proviso and accordingly, submits that suspension can be continued beyond one year only on the recommendation of the Central Ministry's 9 Review Committee and not otherwise. Even though the CAT had not considered the merit of order dated 28.09.2020 and had set aside the same on the ground of the order having been passed in violation of Rule 18(4) of the Rules of 1969, it is submitted by Mr. Behra that when the CAT had recorded a finding that the orders of extension had been passed in violation of Rule 3(1B) of the Rules of 1969, failure to discuss the merits of the order dated 28.09.2020 would be of no consequence. He has further submitted that extension of suspension orders had been passed mechanically without assigning any justification. He has placed reliance on (i) Nazir Ahmed v. King Emperor, reported in (1935-1936) 63 Indian Appeal 372, (ii) Ramana Dayaram Shetty v. International Airport Authority of India & Others, reported in (1979) 3 SCC 489, (iii) Ajay Kumar Choudhary v. Union of India, reported in (2015) 7 SCC 291, (iv) State of Tamil Nadu v. Pramod Kumar, IPS & Others, reported in (2018) 17 SCC 677. Decision of the Gauhati High Court in State of Assam v. Pranjal Borah, reported in (2019) 5 Gauhati Law Reports 744, decision of the Andhra Pradesh High Court in Dasari Venkateswara Rao v. State of Andhra Pradesh, reported in 2021 SCC OnLine AP 2336, and decision of the Madras High Court in State of Tamil Nadu v. M.S.Jaffer Sait , in WP 175-176/2017, wherein law laid down in Ajay Kumar Choudhary (supra) was followed, are also relied on.
11. Mr. R.K. Mishra, learned Assistant Solicitor General for the Union of India, appearing for respondent No.2 submits that in the return filed before the CAT, stand was taken that it was within the competence of the State Government to issue orders continuing suspension period. 10
12. We have considered the submissions of learned counsel for the parties and have perused the materials on record.
13. Though all the learned counsel for the parties have submitted that setting aside of the order in appeal on 28.09.2020 will have no bearing in the decision of this case, it will be appropriate to briefly advert to reasoning assigned by the CAT for setting aside the said order. The CAT had held that as the comments together with the relevant records were not forwarded to the Central Government by the State Government within thirty days from the date of receipt of the appeal by the State Government in terms of Rule 18(4)(a), the Central Government ought to have decided the appeal on the basis of advance copy of the appeal received by it in terms of Rule 18(4)(b) and should not have waited for the comments from the State Government.
14. A perusal of the order dated 28.09.2020 passed in appeal goes to show that the appellate authority, taking into consideration, amongst others, comments from the State Government, had dismissed the appeal.
15. Since all the learned counsel for the parties agreed that dismissal of the appeal has no bearing in the instant case, this Court will not dilate any further on correctness or otherwise of the conclusion reached by the CAT on this aspect.
16. In the return filed by the Union of India before the CAT, it was stated that the State Government was within its jurisdiction to review suspension and take decision in the matter of extension of suspension under Rule 3 of the Rules of 1969.
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17. Though Mr. Behra had submitted that extension orders were passed without any application of mind, it will be appropriate to record at this juncture that it does not appear from the order of the CAT that such a contention was advanced before the CAT and the only point that was canvassed before the CAT was that extension orders, by which suspension was continued beyond one year, having been passed by the State Government without any recommendation from Central Ministry's Review Committee, the same were issued in violation of Rule 3(1B) of the Rules of 1969 and the CAT had also set aside the orders of extension accepting the above contention of the applicant.
18. Therefore, only issue to be decided in the instant case is as to whether the State Government was competent to continue suspension beyond the period of one year in the facts and circumstances of the case.
19. In view of the above, the decisions cited by Mr. Behra in Ajay Kumar Choudhary (supra) and Pramod Kumar, IPS & Others (supra), will have no application. The Hon'ble Supreme Court in Ajay Kumar Choudhary (supra) had observed that the currency of a suspension order should not extend beyond three months if within that period the memorandum of charges/charge-sheet is not served on the delinquent officer and if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. In Pramod Kumar, IPS & Others (supra), the Hon'ble Supreme Court relied upon the judgment rendered in Ajay Kumar Choudhary (supra) and on the basis of materials on record, held that as the employee was under suspension for more than six years, no useful purpose would be 12 served by continuing the officer under suspension who was Inspector General of Police before suspension.
20. Schedule 1 of the Rules of 1969 envisages constitution of Review Committee of the Central Government as well as of the State Government and lays down how the same are to be constituted. Clause 2 of Schedule 1 is on the subject of 'Functions' and Clause 2(a) provides that the Review Committee / Civil Services Board shall review the cases of officers under suspension in order to determine whether there are sufficient grounds for continuation of suspension.
21. It is seen that the State Government had constituted a Review Committee comprising of (i)Chief Secretary, Government of Chhattisgarh,
(ii) Additional Chief Secretary, Government of Chhattisgarh, Department of Home (Police), (iii)Secretary, Government of Chhattisgarh, Department of General Administration, and (iv) Director General of Police, Chhattisgarh.
22. It will be appropriate to take note of Rules 3(1B), 3(8)(c) and 3(8)
(d). They read as follows:
"3. Suspension.-
x x x x
x x x x
(1B) The period of suspension of a member of the Service on charges other than corruption shall not exceed one year and the inquiry shall be completed and appropriate order shall be issued within one year from the date of suspension failing which the 13 suspension order shall automatically stand revoked :
Provided that the suspension can be continued beyond one year only on the recommendations of the Central Ministry's Review Committee:
Provided further that the period during which the disciplinary proceedings remain stayed due to orders of a Court of Law, shall be excluded from this limit of one year.
x x x x
x x x x
(8)(c) The composition and functions of the Review Committee and the procedure to be followed by them shall be as specified in the Schedule 1 annexed to these rules.
(d) The period of suspension under this rule, 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."
23. It will be necessary to examine Rule 3(1B) of the Rules of 1969, which lies in the center of the controversy.
24. Rule 3(1B) of the Rules of 1969 consists of one main provision and two provisos. The main provision is in two parts, namely, (i) the period of suspension of a member of the Service on charges other than corruption shall not exceed one year and (ii) the enquiry shall be completed and 14 appropriate order shall be issued within one year from the date of suspension failing which the suspension order shall automatically stand revoked. In essence, it provides that if the enquiry cannot be completed and appropriate order is not issued within a period of one year from the date of suspension, suspension order shall stand automatically revoked as in terms of the main provision, the period of suspension of a member of the Service on charges other than corruption cannot exceed one year.
25. The 1st proviso to Rule 3(1B) of the Rules of 1969 provides that suspension can be continued beyond a period of one year only on the recommendation of the Central Ministry's Review Committee. The applicant having not been suspended on the grounds of corruption, in terms of Rule 3(1B) of the Rules of 1969, suspension cannot exceed beyond one year unless extended.
26. The 2nd proviso lays down that the period during which the disciplinary proceeding remains stayed due to the orders of the Court of Law, shall be excluded from the limit of one year.
27. In Nazir Ahmed (supra), it was held by the Hon'ble Supreme Court that where a power is given to do a certain thing in a certain way, the thing must be done in that way, or not at all and other methods of performance are necessarily forbidden.
28. In Ramana Dayaram Shetty (supra), the Hon'ble Supreme Court laid down that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in 15 violation of them.
29. Power of the State Government to continue suspension up to one year is not in question in this petition.
30. It is to be noticed that the State Government had continued suspension by exercising power under Rule 3(8)(d) of the Rules of 1969. Rule 3(8)(d) provides that the period of suspension 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, and the proviso thereto lays down that where no order has been passed under that clause, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed.
31. 1st proviso to Rule 3(1B) provides that suspension can be continued beyond one year only on the recommendations of the Central Ministry's Review Committee. Admittedly, suspension has continued beyond one year.
32. It is the contention of the writ petitioners that as the disciplinary proceeding had been stayed before the expiry of one year due to the order of CAT, the State Government is competent to extend the period of suspension based on the recommendations of the Review Committee of the State.
33. We find merit in the above submission and are unable to accept the contention of Mr. Behra that the 1st proviso to Rule 3(1B) has to be read in exclusion to the 2nd proviso. The 2nd proviso makes it explicitly clear that the period during which the disciplinary proceeding remained stayed 16 due to orders of a Court of Law, will stand excluded from the limit of one year as referred to in 1st proviso. Thus, while an order of extension may have to be passed as period of one year may have elapsed, as otherwise, in terms of proviso to Rule 3(8)(d), the order of suspension would stand revoked with effect from the date of expiry of the order being reviewed, the necessity of obtaining recommendation of the Central Ministry's Review Committee is obviated as the period of stay has to be excluded while computing limit of one year as referred to in 1st proviso. In other words, the total period of stay has to be excluded from the total period of suspension and on the basis thereof, if it is found that a period of one year has been reached without taking into account the period of stay, then suspension can be continued only on the recommendations of the Central Ministry's Review Committee and not otherwise. If the argument advanced by Mr. Behra and finding recorded by the CAT are to be accepted, in our considered opinion, the 2nd proviso will be rendered otiose and redundant, which, clearly, cannot be the intention of the rule making authority.
34. For the record, in the instant case, while order of suspension was issued on 09.02.2019, CAT had stayed the departmental proceeding on 24.10.2019 in OA No. 977 of 2019 and the stay is continuing to be in force. Thus, the limit of one year as contemplated by 1 st proviso is yet to be reached. Therefore, continuing suspension on the recommendation of Review Committee of State Government, in the attending facts and circumstances of the case, cannot be said to be in violation of Rule 3(1B) of the Rules of 1969.
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35. In that view of the matter, the order of the CAT is set aside. The writ petition is allowed. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
chandra