Central Administrative Tribunal - Delhi
Sh. Ghasi Ram vs Union Of India Through on 2 July, 2008
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2401/2007
MA-2349/2007
New Delhi this the 2nd day of July, 2008.
Honble Mrs. Chitra Chopra, Member(A)
Sh. Ghasi Ram,
S/o late Sh. Jhamman Singh,
R/o E-658, Nathupura,
Nathu Colony, Behind
Manav Bhwna School,
(18 feet road), Delhi-84. . Applicant
(through Sh. R.N. Singh, proxy for Sh. A.S. Singh, Advocate)
Versus
1. Union of India through
Ministry of Urban Development,
Nirman Bhawan, New Delhi-11.
(Through : The Secretary)
2. The Director General (works),
Central Public Works Department,
Nirman Bhawan, New Delhi-11.
3. The Superintending Engineer(DCC-I),
Central Public Works Department,
2nd Floor, Y-Shape Building,
ITO, New Delhi-2.
4. The Executive Engineer, R-Division,
Central Public Works Department,
B-1/W-6, Curzon Road Barracks,
New Delhi-1. . Respondents
(through Sh. B.S. Jain, Advocate)
O R D E R
Applicant (Sh. Ghasi Ram) herein has sought direction to rejoin his duties w.e.f. 01.10.2006. He is aggrieved by order dated 17.07.2006 (Annexure-A) whereby his deemed suspension issued vide order dated 17.11.2005 (Annexure A-2) was extended upto 30.09.2006. Despite lapse of the period of suspension applicant has not been allowed to rejoin his duties nor was he paid subsistence allowance regularly or any pay or allowance w.e.f. 0.10.2006.
2. Applicant has prayed for the following reliefs:-
Quash the impugned order No.10(4)/B/DCC-1/E-III/1662 dated 17.7.2006 (Annexure-A impugned) as illegal, arbitrary and discriminatory.
Direct the respondents to refund the recovery made from the subsistence allowance for the period from August, 2005 to October, 2005 being illegal and arbitrary.
Declare that he is entitled to be treated on duty with all consequential benefits, including pay and allowances, after lapse of the period of deemed suspension ordered vide order dated 17.11.2005.
Direct the respondents to pay the interest @ 12% p.a. on the arrears of pay and perks for the relevant period.
3. From the facts as set out by the applicant, it transpires that the applicant had joined the services of respondents (CPWD) as Mason on muster roll basis since 1979. His services were regularized w.e.f. 20.04.1988 and since then he has been working as Mason under the respondents and is posted under Respondent No.4 (Executive Engineer, R-Division).
Applicant was detained in custody by the police on 21.08.2005 in a false and fabricated case FIR No. 219/2003 with PS:Bara Hindu Rao, Delhi u/ss.468, 471, 420, 448, 20-B and 34 IPC which was lodged by one Shri Ved Prakash alleging property dispute and the applicant remained in custody for a period exceeding 48 hours. Applicant had himself reported the factum of his arrest to the respondent No.4 vide his letter dated 31.08.2005 (Annexure A-1).
He was allowed to resume his duties and since then performed his duties regularly and satisfactorily and the pay and perks were regularly paid to him by the respondents.
Vide Office Order dated 17.11.2005 (Annexure A-2), the applicant was deemed to have been suspended w.e.f. 21.08.2005 in terms of Rule 10(2)(a) of CCS(CCA) Rules, 1965.
The applicant requested for grant of subsistence allowance, as admissible under the rules, vide his letter dated 28.11.2005 (Annexure A-3 Colly.) and through his Unions letter dated 07.12.2005. However, the same was not paid to him regularly as required under the rules and for the first time it was ordered vide order dated 20.01.2006, and further vide order dated 31.03.2006 (Annexure A-4 Colly.). Once the suspension period was over, it was incumbent upon the respondents to allow the applicant to resume and perform his duties regularly but in spite of his request, including one vide letter dated 05.05.2006 (Annexure A-5), applicant was not allowed to join and perform his duties though he has been reporting to his office regularly. Thereafter, respondents issued the office order dated 17.07.2006 (Annexure-A) whereby his suspension period was extended upto 30.09.2006. It is submitted that the Office Order No. 17.07.2006 is illegal, arbitrary and without jurisdiction and is nullity in the eyes of law.
Respondents have kept the applicant without any duties and without any pay and allowances except subsistence allowance being paid irregularly upto 30.09.2006, despite request from the applicant from time to time including his representation duly acknowledged on 27.04.2007, 30.05.2007, 04.10.2007 (Annexure A-7 Colly.).
It is submitted that action of respondents in extending the period of suspension is illegal, arbitrary and discriminatory and violative of Rule 10(6)&(7) of CCS (CCA) Rules, 1965. So also is the action in not making the payment of pay and allowances as admissible under the rules.
4. Applicant has sought quashing of the orders on the following grounds:-
(a) Because the impugned order dated 17.07.2006 has not been passed after timely review and within the period stipulated under the relevant rules i.e. Rule 10(6)&(7) of CCS(CCA) Rules, 1965.
(b)The impugned order is the result of non-application of mind and colourable exercise of powers vested under the respondents being illegal, arbitrary, discriminatory and violative of Articles 14,16 and 21 of the Constitution of India.
(c) It is trite law that once statutory provision requires something to be done in a particular manner and within a particular period, the same must be done in the manner and time so prescribed failing which the order would become nullity and without jurisdiction.
(d) Review of the deemed suspension has not been done by the competent committee/authority.
5. O.A. has been opposed by the respondents. While denying the contention and allegations of the applicant, it is stated that applicant was arrested as per FIR No. 219/03 dated 09.09.2003 u/s 420/471/468/447/120/B IPC on 21.08.2005 and he was produced in the Honble Court of Shri G.S. Saini, Tis Hazari Court on 22.08.2005 wherein he was granted two days police custody upto 23.08.2005. Thereafter, he was again produced in the Honble Court on 24.08.2005 from the police custody. He was in police custody from 24.08.2005 to 31.08.2005 and thereafter he is on bail. The criminal case against the applicant is still pending. This is the precise reason for the applicant being in suspension w.e.f. 21.08.2005 under Sec. 2(a) of Rule 10 of CCS(CCA) Rules, 1965. As the criminal case is still pending against him, his suspension has been continued vide order dated 17.07.2006. The applicant has been paid subsistence allowance upto 31.12.2007 and for that a cheque of Rs. 1,14,222/- has been received by him as submitted in the letter dated 17.01.2008 (annexure R-1). Further, subsistence allowance has been paid upto 31.03.2008. Respondents have added that Applicant was placed under suspension w.e.f. 21.08.2005 vide orders dated 17.11.2005 and for that he is being paid 75% of the pay as subsistence allowance without doing any work. Also, that the O.A. is hopelessly time barred as the applicant has impugned order dated 17.07.2006 but not order dated 17.11.2005 and the O.A. has been filed in December, 2007.
The case of the applicant was receiving consideration of the respondents and ultimately it was decided to place him under deemed suspension under Rule 2(a) of CCS(CCA) Rules, 1965. It is submitted that he remained in police custody for a period of more than 48 hrs. i.e. 21.08.2005 to 30.08.2005. As the criminal case against the applicant is still pending, the action of the respondents to continue him in suspension is as per Rule 10 of the CCS(CCA) Rules. The suspension of the applicant was last reviewed on 08.01.2008 by the review committee and it was decided to continue his suspension and will be again reviewed on 30.06.2008.
6. On the first day of hearing i.e. 26.12.2007, applicant by way of interim relief prayed for grant of subsistence allowance which he had received only till 30.09.2006 and was facing acute financial hardship. Tribunal vide its order dated 26.12.2007directed that as no reasons seem to have been given for non-payment of subsistence allowance beyond 30.09.2006, respondents shall sanction the subsistence allowance to the applicant w.e.f. 01.10.2006 in accordance with rules.
7. Learned counsel for the applicant Sh. R.N. Singh vehemently submitted that the action of the respondents in continuing suspension of the applicant is not only illegal and arbitrary but is in violation of canons of law and natural justice.
8. His first contention is that although applicant had been detained in custody on 21.08.2005, the suspension order was issued only on 17.11.2005 (Annexure A-2) which stated that applicant is deemed to have been suspended w.e.f. date of detention i.e. 21.08.2005. Thereafter, only on 17.07.2006, the impugned order was issued extending the period of suspension of the applicant upto 30.09.2006. After this date, no review has taken place till 08.01.2008. Learned counsel argued that in terms of the mandatory requirement of the Rules, suspension period must be reviewed within 90 days whereas in the present case it has been reviewed after more than 15 months. The order is, therefore, rendered nullity in the eyes of law.
9. His second contention is that despite repeated representations, applicant has not been allowed to join duties after 30.09.2006 despite the fact that suspension period was not extended after that date. It is most relevant that the criminal case in which applicant was placed under suspension relates to a property dispute and has nothing to do with his official work. Even on merits, the continuance of suspension does not bear any justification as a Mason is not required to work in any office, but is mostly engaged in construction/repair work at sites and it is highly unlikely that he could tamper with any evidence or with any official record. Sh. Singh highlighted the fact that despite no review and no extension of suspension period beyond 30.09.2006. Applicant was not paid any subsistence allowance and it was only when he came to the Tribunal in the present O.A., through the intervention of the Tribunal he was granted subsistence allowance by way of interim relief.
10. In regard to the recovery made from the pay/subsistence allowance for the period from August to October 2005 made, Sh. Singh very strongly submitted that such recovery is totally illegal and arbitrary. Applicant had himself informed the office about his detention and the FIR. He was allowed to work till 17.11.2005 when the deemed suspension was issued. Since he had fully performed duties for this period from August to November, 2005, it is incorrect to make recovery from the pay for the period which he had received for duly having worked.
11. Sh. Singh, learned counsel placed reliance on the following cases:-
(i) The Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma (1998(5)SCC 87.
(ii) Swetabh Suman Vs. UOI & Ors. (OA-1776/2006) dated 24.08.2007
(iii) N.K. Sethi Vs. I.T.P.O. (WP(C) No.14849/2004 Order dated 22.2.2005 (2005(118)DLT 181
(iv) P.C. Mishra Vs. U.O.I. (OA-1608/2006) decided on 03.10.2006
(v) Ramchandra Keshav Adke (Dead) by LRs Vs. Govind Joti Chavare & Ors. (AIR 1975 SC 915)
12. It was also submitted that if the Department has any material or any ground which would warrant any action to be taken against the applicant subsequently, they would be within their rights as per rules but till such time there are no grounds, it is illegal and unjustified to keep the applicant under suspension for no reason.
13. Sh. B.S. Jain, learned counsel for respondents reiterated the submissions made in the counter-reply and stated that applicant has been continued under suspension for valid grounds. As criminal case is pending against him, the Review Committee has decided to keep him under suspension as per the last review held on 08.01.2008. Further, applicants suspension will be again reviewed on 30.06.2008.
It was, however, fairly admitted that no review of the suspension was done for the period after 30.09.2006 as contained in order dated 17.07.2006. Respondents also placed on record an order dated 09.01.2008 vide which subsistence allowance was sanctioned for a further period from 21.08.2006 to 30.06.2008.
In this factual scenario, the only issue to be addressed is whether the applicant continued suspension after 30.09.2006 without any review being done and no order of extension being issued, is valid.
Rule 10 of the CCS(CCA) Rules, 1965 lays down the procedure relating to suspension. Rule 10(5), (6) and (7), inter alia, read as under:-
(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 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.
x x x x (6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is competent to modify or revoke the suspension before expiry of ninety days from the date of order of suspension on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
(7) Notwithstanding anything contained in sub-rule (5) (a), an order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.
14. A bare reading of the Rule leaves no doubt that the order made or deemed to have been made is mandatorily to be reviewed by the competent authority before expiry of 90 days from the date of order of suspension on the recommendations of the Review Committee. However, in the instant case as per the records and as admitted by respondents no such review was done. Hence, the suspension of the applicant after 30.09.2006 would, in fact, be rendered invalid and illegal. As admitted by the respondents, after the order of 17.07.2006, the case of the applicant was reviewed only on 08.01.2008, which is long after the period of 90 days prescribed under the Rules. If the respondents did not exercise the due care and diligence statutorily required in review of suspension, the applicant cannot be faulted and cannot be made to suffer on that account. It is also relevant to observe that not only was review not held as mandated under the Rules, even subsistence allowance to applicant was not given beyond 30.09.2006. I need hardly to observe that applicant being a Mason and not exactly a very highly paid employee, has been put to undue and uncalled for hardship by the respondents. The grant of subsistence allowance vide respondents order dated 17.01.2008 is in fact by virtue of directions of this Tribunal and was not on account of the respondents own initiative or duty as required under the Rules. It is also unbecoming and uncalled for on the part of the respondents to state that applicant is being paid 75% of the pay as subsistence allowance without doing any work. It is a matter of record that applicant has been giving repeated representations to allow him to rejoin and be put to work. Again it is the inaction and lack of response on the part of respondents that he has not yet been allowed to rejoin or resume his work.
15. In N.K. Sethis case, Honble High Court has clearly ruled that:-
Respondents having failed to review the petitioners case for suspension within the stipulated period as noted above the suspension is liable to be revoked and is hereby revoked. Nothing stated herein before shall be taken as an expression of opinion on the merits of the petitioners case and/or as curtailing the respondents power of suspension, as permissible under the Rules. In this case, respondents had failed to carry out review within the stipulated period of 90 days, the first review was carried out nearly after 150 days after the date of Notification.
16. Similar view has been taken by the Tribunal in OA-1608/2006 (P.C. Mishra Vs. U.O.I. & Ors.) decided on 03.10.2006. In Para-49, the following has been held:-
In the light of above, as it is established under rule and law that if the suspension is not revoked by the review committee, it would lose its sanctity and the person would have legal implication in his favour, in such an event, law shall take its own course.
17. Again the Full Bench of this Tribunal in OA-2105/2004 (D.R. Rohilla Vs. U.O.I. & ors.) dated 31.10.2005 held that the statutory requirement contained in Sub-Rules 6 and 7 of Rule 10 of the CCS(CCA) Rules, 1965 has to be complied with.
18. Learned counsel for applicant also drew attention to the decision of Honble Supreme Court in Ramachandras case (supra) to bring home the point that required action must be taken in accordance with the rule prescribed. In Para-25 of the said decision, the following has been held:-
25. A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M.R. adopted the rule 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 that other methods of performance are necessarily forbidden. This rule has stood the test of time.
19. Counsel for respondents emphasized that applicant is not entitled to the relief sought for as he has impugned the order dated 17.07.2006 but has not impugned the earlier order dated 17.11.2005. However, this contention raised by Shri Jain is simply technical and really not tenable as the impugned order dated 17.07.2006 is, in fact, based on the earlier letter dated 17.11.2005 and the main relief sought by the applicant is reinstatement after 30.09.2006 as his suspension was extended only upto that date.
20. In regard to the relief claimed in Para-2(ii), namely, recovery made from the subsistence allowance for the period from August, 2005 to October, 2005, leaned counsel for applicant Sh. R.N. Singh forcefully argued that even though vide order dated 17.11.2005 applicant was placed under deemed suspension, but the order per se was issued only on 17.07.2006. For the period from August to October, 2005, applicant had been regularly working and had been paid his full pay and allowances for performing his regular duties. In this view of the matter, recovery is illegal.
21. It is true that applicant was placed under suspension by the operation of law and the order dated 17.11.2005 vide which the deemed date of suspension of applicant was 21.08.2005. On the other hand, it is equally true that applicant had reported back to office, and had performed regular duty and had been paid therefore. Applicant himself had not withheld any information regarding his arrest or detention, nor was he responsible for the delay in issuance of the suspension order. It is a matter of record that the applicant had reported back on duty on 31.08.2005 but the suspension orders were issued only on 17.11.2005 i.e. after a gap of more than 2 months. For this delay, only the respondents are responsible. On a balance of the circumstances and the principles of equity and justice, I feel it would not be fair to make the recovery from the pay which had been duly paid to the applicant for performing his duties. The laxity of the respondents is also further evident from the fact that review of his suspension order was not done after 30.09.2006. As respondents failed to review his suspension as mandated under the Rules, the suspension beyond 30.09.2006 cannot be sustained.
22. In the light of the foregoing discussion and having regard to the facts and circumstances and the settled law on the subject, the present O.A. is allowed to the extent that as applicant remained in detention upto 30.08.2005 hence relief Nos. (ii) & (iii) claimed are granted to the extent that no recovery should be made from his pay and allowances for the period from 31.08.2005 to 16.11.2005, order of suspension having issued on 17.11.2005. Further, suspension beyond 30.09.2006 being null & void, applicant would be deemed to be on duty w.e.f. 01.10.2006. Respondents are directed to take further action in accordance with law. It is made clear that no opinion is expressed on the merits of the case. No costs.
(Chitra Chopra) Member(A) /vv/