Central Administrative Tribunal - Ahmedabad
Rakeshkumar Mahendraprasad Sharma vs Cgst on 10 June, 2025
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 448/2024
Dated this the10th day of June, 2025.
Reserved On: 06.05.2025
Pronounced on: 10.06.2025
CORAM:
Hon'ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
1. Ratkeshkumar Mahendrapasad Sharma
S/o Late Mahendra Prasad Sharma
Aged about 54 years,
Male,
Resident of: A/301, Antlia Dreams,
Canal Road, Vesu,
Surat - 395007.
... Applicant
(By Advocate: Shri Mr. I.H.Syed, senior counsel
assisted by Mr. Prithu Parimal)
V/s.
1. The Chief Commissioner,
CGST & Central Excise,
Vadodara Zone,
2nd Floor, GST Bhavan,
Race Course Circle,
Vadodara - 390 007.
2. Pankaj K Singh, IRS
The Commissioner,
CGST & Central Excise
Commissionerate, Surat
Chowk Bazaar,
Surat - 395 001.
... Respondents
(By Advocate Mr. H D Shukla)
2 OA No.448 of 2024
ORDER
Per: Hon'ble Shri Jayesh V Bhairavia, Member (J)
The applicant being aggrieved with his continuous suspension has filed the present OA under Section 19 of the A. T. Act, 1985 seeking following reliefs :-
"(A) This Hon'ble Tribunal be pleased to quash and set aside the impugned orders dated 04.07.2023, 22.12.2023 and 21.06.2024 whereby the suspension of the Applicant has been extended by 180 days each and further be pleased to direct the respondents authority to revoke the suspension of the applicant w.e.f. 05.07.2023:
(B) This Hon'ble Tribunal be pleased to direct the Respondents authorities to treat the period from 05.07.2023 as period spent on duty by the Applicant and to grant all consequential benefits;
(C ) This Hon'ble Tribunal be pleased to quash and set aside the Estt. Order No.66 of 2024 dated 10.10.2024 issued by the Office of the Chief Commissioner, CGST, Vadodara Zone qua the applicant, whereby the applicant was once again transferred back from CGST Surat (Audit) to CGST Surat (HQ) without showing any reason;
(D) This Hon'ble Tribunal be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may required and in the interest of justice."
2. The brief facts of the case of the applicant are as under: -
2.1 The Applicant, while working as Superintendent of CGST at Surat was arrested in connection with FIR bearing C.R.No. 11210060230940 of 2023 registered with Varachha police station under Sections 389, 447, 170, and 114 of IPC and Sections 7, 7(A) and 12 of the Prevention of Corruption Act, 1988.
2.2 Since the criminal case was registered against the applicant and the same is under investigation by the Police, the respondents in terms of Rule 10(1) of the Central Civil Services (CCA) Rules, 1965 (hereinafter referred to as 'the Rules of 1965') 3 OA No.448 of 2024 suspended the applicant w.e.f. 06.04.2023 vide order dated 11.04.2023 (Annexure A/2 refers).
Subsequently, the respondents have also passed the order for grant of subsistence allowance in favour of the applicant in terms of FR-53. Thereafter, vide order dated 18.4.2023, the respondents had directed the applicant to report the Headquarter on daily basis.
2.3 On completion of investigation in the said criminal case registered against the applicant, the investigating authority had submitted a charge sheet on 02.06.2023 before the learned Sessions Court. The said FIR registered against the applicant was subsequently culminated into Special ACB Case No.13 of 2023. The said criminal proceeding is pending for trial before the learned Sessions & Special Court, ACB Judge, Surat.
2.4 On 16.06.2023, the learned Sessions & Special Court, Surat, granted regular bail to the applicant. Accordingly, the applicant had submitted his resumption report vide his application dated 19.06.2023 (Annexures A-4 and A-5 refer).
2.5 Before completion of 90 days of his suspension, by accepting the recommendations of the Review Committee, the competent authority in exercise of power under Rule 10 (6) of the Rules of 1965 had extended the suspension for further period of 180 days w.e.f. 05.07.2023 vide order dated 04.07.2023 (Annexure A/1 Colly. refer).
2.6 Since, three months of his suspension had already been over, he had submitted his application dated 08.08.2023 and claim 75% of subsistence allowance w.e.f. 6.7.2023 (Annexure A/6 refers) as per the provision contained in FR-53, followed by reminder dated 09.10.2023 (Annexure A-7 refer).
Again, on 17.11.2023 (Annexure A-8 refer), the applicant preferred another representation praying for increase in 4 OA No.448 of 2024 subsistence allowance upto 75% as also sought revocation of his suspension since the investigation in the criminal case had been completed.
2.7 Pursuant to his representation dated 08.08.2023 for enhancement of his subsistence allowance, the respondents vide order dated 20.11.2023 sought certain details from him. In response to the same, the applicant vide his application dated 22.11.2023 as well as through email supplied all necessary documents which the respondents have sought from him. However, the respondents have not considered the request of the applicant for enhancement of his subsistence allowance.
2.8 On expire of 180 days period stipulated under the extension order dated 04.07.2023, the respondent No.2 herein by accepting the recommendations of the Review Committee extended the suspension of the applicant for a further period of 180 days w.e.f. 2.1.2024 vide order dated 22.12.2023.
Thereafter, again the respondent No.2 by accepting the recommendation of the Review Committee, extended the period of suspension of the applicant for further 180 days w.e.f. 30.6.2024 vide order 21.06.2024 (Annexure A/1 Colly.).
2.9 In the meanwhile, the respondents have issued Establishment Order No.46/2024 dated 19.07.2024 regarding transfer and posting of the Superintendents of CGST & CE, Vadodara (Annexure A/13 refers) with certain instruction that the transferees shall be relieved from their present place of posting on or before 31.07.20204. The name of the applicant has been reflected at Serial No.70 and against the name of the applicant, it was mentioned that he has been transferred from CGST Surat to CGST Surat (Audit). The respondents again issued Establishment Order No.17/2024 dated 18.09.2024 thereby the applicant was posted at Central Excise Revenue Audit (CERA).
5 OA No.448 of 20242.10 Subsequently, vide Establishment Order No.26/2024,the place of posting of the applicant has been shown as Surat CGST (HQ) and against his name, status is shown as under suspension. (Annexure A/15 refer).
2.11 The applicant again preferred representation dated 04.10.2024 whereby he sought copies of minutes in respect to extension order of his suspension and had also requested to increase his subsistence allowance and also pay him full transport allowance. Further he had pointed out illegality and anomaly in his retention at Surat CGST (HQ) (Annexure A/16 refer).
2.12 The respondents again issued Establishment Order No.66/2024 dated 10.10.2024 whereby the applicant was transferred from CGST Surat (Audit) to CGST Surat (HQ).
2.13 Since more than one and a half year have been passed from the date of his suspension, i.e., w.e.f. 06.04.2023 and without assigning reasons, the suspension of the applicant was extended time and again and as such his suspension has not been revoked by the respondents as also he has not been granted increase in the subsistence allowances for which he is entitled in terms of FR-53, the applicant has filed the present OA seeking the reliefs as referred hereinabove.
3. Senior counsel, Mr. I.H.Syed with Advocate Mr. Prithu Parimal for the applicant would argue that since extensions of suspension period of the applicant have been issued by the respondents without assigning adequate reasons, the said impugned orders of extension of suspension are violative of the fundamental rights to life and livelihood guaranteed under Article 21 of the Constitution of India of the applicant, hence, the impugned orders are required to be quashed and set aside by this Tribunal.
3.1 He further submitted that the respondents failed to issue Memorandum of charge within three months from the effective 6 OA No.448 of 2024 date of his suspension, and even till date no departmental proceedings had been instituted against the applicant by the respondents under the CCS (CCA) Rules, therefore, the impugned orders are bad in law.
3.2 In support of aforesaid submission, learned senior counsel by relying upon the judgment passed by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary V/s. Union of India, reported in (2015) 7 SCC 291 would argue that the currency of a suspension order of a government servant, i.e., the applicant herein, should not be extend beyond a period of three months, more particularly, in cases where the memorandum of charges is not served upon the Govt. employee, i.e, applicant herein.
3.3 In this regard, it is furthers ubmitted that pursuant to the judgment passed by the Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra),the DoP&T had issued OM No.11012/04/2016-Estt(A) dated 23.08.2016 (Annexure A/19 refers) wherein, it has been decided that "where a Government Servant is placed under suspension the order of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the Charge Officer. As such, it should be ensure that the charge-sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensure that charge- sheets are issued in time and it should also be ensure that disciplinary proceedings are initiated as far as possible in cases where an investigation agencies is seized of the matter or criminal proceedings have been launched."
Therefore, learned senior counsel submitted that in the present case, since the respondent failed to issue the Charge Memorandum to the applicant within the 90 days from the 7 OA No.448 of 2024 initial date of applicant's suspension i.e. 06.04.2023 in terms of instructions contained in aforesaid DoP&T OM dated 23.08.2016, the orders of further extension of applicant's suspension are not tenable being bad in law.
3.4 By referring the Office Memorandum dated 04.11.2022 issued by the DoP&T which contains the compilation of the rules and instructions on the subject of suspension, review of suspension, pay and allowance during the suspension period, including the subsistence allowance etc., learned senior counsel would argue that the prolonged suspension of the applicant is contrary to the various executive instructions issued by the DoP&T time and again. He reiterated that further extensions of suspension period of the applicant amount to violation of principles of timely justice, and the prolong suspension serve no valid purpose other than causing undue hardship to the applicant herein.
3.5 Learned senior counsel would further argue that by referring and following the law laid down by Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra), as also by referring the judgment passed by Delhi High Court in the case of Govt. of NCT of Delhi v/s. Dr. Rishi Anand [W.P.(C) No.8134/2017 decided on 13.09.2017] as well order dated 02.04.2018 passed by the Principal Bench of the Tribunal in OA No.1224/2018, CAT-Ahmedabad Bench in OA No.503/2020 vide order dated 21.01.2022 quashed and set aside the prolong suspension of the applicant therein and directed the respondents to reinstate the applicant therein and further held that the applicant therein shall be entitled to subsistence allowance. The said orders well as order passed by the CAT Hyderabad in OA No.21/507/2021 dated 14.06.2023 (Annexure A/18 Colly refer) are squarely applicable in the present case.
3.6 Further it is submitted that despite the several representations made by the applicant, the respondents have failed to address 8 OA No.448 of 2024 the genuine grievance of the applicant with regard to increase of subsistence allowance.
It is submitted that since the respondents had extended the suspension period(s) arbitrarily, the same are punitive in nature rather than preventive, therefore, the prayer sought for in this OA be allowed.
4. Per contra, on receipt of the notice issued by this Tribunal, the respondents have filed their reply and denied the claim of the applicant. Learned counsel Mr. H.D.Shukla for the respondents by referring the averment in the reply, mainly submitted as under:-
4.1 It is argued that consequent upon the arrest of the applicant in connection with the FIR, he was placed under suspension w.e.f. 06.04.2023 and consequent extensions of the suspension were done after following due procedure prescribed under the law.
As per the Rule 10(6) of the Rules of 1965, the Review Committee constituted for the purpose of review of suspension of the applicant and found that the applicant is allegedly involved in serious criminal offences such as extortion/trespassing/corruption and his continuation in respondents' office might prejudice the ongoing investigation and further proceedings by Police Authority and further there is likelihood that the applicant can tamper with evidence or influence witnesses and, therefore, recommended to extend the suspension of the applicant herein. At the same time, the competent authority had also decided to give him subsistence allowance as per the provisions stipulated in FR-53.
4.2 It is further submitted that amendment in the sub-rule (7) of Rule 10 of the Rules of 1965 was published in Gazatte Notification vide Government Statutory Rules (G.S.R.) No.156 on 19.10.2022. In the said amended G.S.R. No.156, it has been provided that in a case where no charge sheet is issued under these rules, the total period under suspension or deemed 9 OA No.448 of 2024 suspension, as the case may be, including any extended period in terms of sub-rule (6) shall not exceed, two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause (b) of sub- rule (1) of Rule 10 of the Rules of 1965, as the case may be.
In other words, even if charge Memorandum is not issued under this Rule upon the applicant herein, the competent authority is empowered to extend the period of suspension maximum for a period of two years. Therefore, the impugned orders whereby the suspension of the applicant was extended by the competent authority are in consonance with the power vested in it by the statutory rules and the same is within time limit prescribed under the said amended rules and as such the impugned orders are just and proper.
4.3 In this regard, further it is submitted that undisputedly, in the case of the applicant, till date the trial of the criminal case registered against the applicant herein is pending. Keeping in view the very said reason, the competent authority has rightly extended the suspension period of the applicant by accepting the recommendations of the Review Committees.
4.4 Further, it is submitted that the judgment passed by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (supra) and other judgments/orders, as relied upon by the counsel for the applicant are not relevant in the facts of the present case, more particularly, in view of the amended provisions of sub- rule (7) of Rule 10 of the Rules of 1965. Accordingly, the instructions contained in the DoP&T vide Office Memorandum dated 23.08.2016 has no validity due to amendment in sub rule (7) of Rule 10 of the Rules of 1965, which gives the competent authority to keep the Govt. servant under suspension for upto two years.
10 OA No.448 of 20244.5 Learned counsel further submitted that the order dated 30.09.2024 was passed keeping in mind that the applicant was under suspension and during his suspension, his headquarter was fixed as CGST & CE, Surat, Commissionerate. It is stated that the order dated 19.07.2024 was passed by the Office of Chief Commissioner of CGST & CE, Vadodara Zone, Vadodara who is higher authority for the respondent No.2. However, the order dated 18.09.2024 was passed by the Commissioner of CGST & CE, Audit Surat, who is counterpart of the respondent No.2, hence, his orders are not binding on the respondent No.2.
As regards, the order passed by the Office of the Chief Commissioner of CGST & CE, Vadodara Zone, Vadodara, it is stated that the Estt. Order No. 46/2024 dated 19.07.2024 under which the officer was transferred to the CGST & CE, Audit Surat Commissionerate was modified vide Estt. Order No.66/2024 dated 10.10.2024 whereby the officer was transferred to CGST & CE, Surat Commissionerate. Moreover, the officer was never relieved from the office of the Commissioner, CGST & CE, Surat till 10.10.2024 when his earlier order for transfer to CGST & CE, Audit Surat was ordered.
It is stated that if the applicant would have been relieved from his current place of posting, the order dated 30.09.2024 issued by this office would have become redundant.
4.6 It is, however, stated that the posting of the applicant has nothing to do with his suspension, as he was kept under suspension in view of the ongoing inquiry, investigation or trail against him. Thus, on this ground, the contention of the applicant is not tenable and required to be rejected.
4.7 It is submitted that since the applicant has committed serious criminal offences and the trial of the said criminal proceeding is 11 OA No.448 of 2024 pending before the learned Sessions and Special Court, ACB Judge, Surat, thus, in terms of Rule 10(6) of the Rules of 1965, the competent authority has rightly extended the applicant's suspension from time to time by following the due process of law.
Therefore, the applicant is not entitled for any relief as prayed for in this OA.
5. The applicant has filed rejoinder reiterating his contentions as stated in the OA. Additionally, it is contended as under:-
5.1 During the pendency of this OA, without assigning any reason, the respondents had erroneously extended the suspension period for another 90 days w.e.f. 27.3.2025 vide order dated 19.03.2025 which is clearly in violation of mandate contained in sub rule (7) of Rule 10 of the Rules of 1965 since the maximum time limit prescribed period of two years under the said rule has been over.
5.2 Learned senior counsel further submitted that despite repeated representations highlighting severe financial hardships faced by the applicant and his family, the respondents have mechanically extended the suspension and that too without increasing the applicant's subsistence allowance and thereby violated the mandated under FR-53.
Thus, for non-grant of legitimate substantial allowances to the applicant, the said action on the part of the respondents is illegal, arbitrary, and violative of principles of natural justice and constitutional guarantees.
6. Heard the counsel for parties and perused the materials on record.
7. In the present case, as noted hereinabove, undisputedly, while applicant was working as Superintendent of CGST, Surat, a criminal offence has been registered against him with Varachha Police Station, 12 OA No.448 of 2024 Surat under Sections 389, 384, 447, 170 & 114 of I.P.C and Sections 7, 7(a) & 12 of the Prevention of Corruption Act.
Therefore, the competent authority by considering the ongoing investigation in respect to the said criminal offence registered against the applicant herein had placed him under suspension w.e.f. 06.04.2023 vide order dated 11.04.2023 in exercise of the powers conferred by the rule 10(1) of the Rules, 1965 (Annexure A/2 refer).
Thus, it can be seen that the suspension of the applicant herein is undisputedly governed by the provision of Rule 10 of CCS (CCA) Rules 1965, as amended from time to time.
7.1 It is noticed that on completion of investigation in respect to Criminal case registered against the applicant, the investigation agency had submitted a chargsheet before the learned Sessions & Special Court (ACB), Surat. Accordingly, the FIR/Criminal case registered against the applicant subsequently culminated into Special ACB Case No. 13/2023. It is also noticed that in the meantime, applicant was released on bail and as such the trial in respect to the said criminal proceeding i.e., Special ACB Case No. 13/2023 is pending against him till date.
7.2 It can be seen that during the pendency of the trial in said criminal proceedings against the applicant, the competent authority in exercise of powers conferred by Rule 10 (6) of the Rules of 1965 by accepting the recommendations of the Review Committee had extended the suspension of the applicant for a period of 180 days w.e.f. 05.07.2023 vide order dated 04.07.2023 and further directed that the applicant will be entitled to receive substantial allowances as per FR-53.
It emerges from the record that after the first order of suspension of the applicant making it effective from 06.04.2023 (for 90 days), based on the recommendations of the Review Committee, the competent authority in terms of the provisions 13 OA No.448 of 2024 of Rule 10 (6) of the Rules of 1965 subsequently had extended further period(s) of suspension of the applicant vide following orders:
(i) The period of suspension was further extended for 180 days w.e.f. 04.07.2023 vide order dated 04.07.2023;
(ii) The period of suspension was further extended for 180 days w.e.f. 02.01.2024 vide order dated 22.12.2023;
(iii) The period of suspension was further extended for 180 days w.e.f. 30.06.2024 vide order dated 21.06.2024;
(iv) The period of suspension was further extended for 90 days w.e.f. 27.12.2024 vide order dated 20.12.2024; (Annexure A/1 Colly.) &
(v) The period of suspension was further extended for 90 days w.e.f. 27.03.2025 vide order dated 19.03.2025 (Annexure A/22 with the rejoinder).
8. Mr. I. H. Syed learned Senior Counsel appearing with advocate Mr. Prithu Parimal, would mainly argue that without assigning any reason for further period of extension that too without serving any chargesheet/charge Memorandum under the Rules of 1965 upon the applicant, the respondents had erroneously issued impugned orders for further extension of suspension of the applicant. According to the learned senior counsel, the said impugned orders are as such contrary to the law laid down by the Hon'ble Apex Court in the case of Ajay Choudhary (supra), the instructions contained in various office memoranda issued by the DoP&T, orders passed by various Benches of this Tribunal. It is submitted that even otherwise, the last extension of suspension vide order dated 19.03.2025 for another 90 days is also issued in violation of provision of Rule 10 (6) & (7) of the Rules of 1965. Therefore, the impugned orders are bad in law and hence not tenable in the eyes of law.
Additionally, learned senior counsel would also argue that the respondents failed to adhere to the provision of FR-53 for grant of substantial allowance to the applicant during his suspension period.
14 OA No.448 of 20248.1 As against, to justify the action on the part of the respondents Mr. H. D. Shukla, learned counsel for the respondents would argue that since the criminal proceeding instituted against the applicant and the trial thereon is pending, the competent authority had rightly issued order for further extension of suspension in the case of the applicant in terms of provision on sub rule (6) & (7) of Rule 10 of the Rules of 1965. Thus, the impugned orders are just and proper as the same are issued in consonance with the provisions of Rule 10 of the Rules of 1965.
Further, he submits that while extending the period of suspension, the competent authority had also ordered that the applicant is entitled to receive his subsistence allowance in terms of FR-53. Therefore, the applicant is not entitled for any relief as sought for.
8.2 At this stage, it is required to mention that Part-IV of the CCS (CCA) Rules, 1965, more particularly, Rule 10 of the Rules of 1965 provides the provisions relating to on what ground a Government servant be placed under suspension and how long it shall continue or the period of the suspension can be extended or the suspension can be revoked.
Further, it can be seen that the provision of clause (b) of sub rule 1 of Rule 10 of the Rules of 1965 stipulates that the Appointing Authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place the Government servant under suspension where a case against him/her in respect of any criminal offence is under investigation, inquiry or trial.
8.3 Further, sub rule (5)(a) of Rule 10 of the Rulesof 1965 stipulates the condition that subject to provision contained in sub rule (7), any order of suspension made or deemed to have 15 OA No.448 of 2024 been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.
It is also provided in sub rule (5) (b) of Rule 10 that where the Government servant is suspended, whether in connection with any disciplinary proceedings or otherwise, and any other disciplinary proceedings is commenced against him during the continuance of the suspension, the authority competent by recording the reasons can place him under suspension and direct the Government servant shall continue to be under suspension under termination of all or such proceedings.
Further, sub rule (5) (c) of Rule 10 stipulates that an order of suspension made under this rule may at any time be modified or revoked by the authority which made the order or by any authority to which that authority is subordinate.
8.4 The sub rule 6 of Rule 10 stipulates that an order of suspension shall be reviewed by the authority which is competent to modify or revoke the suspension (before expiry of ninety days from the effective date of suspension) on the recommendation of the review committee and passed the orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of the suspension. (Extension of suspension shall not be fall a period exceeding 180 days at a time).
8.5 The sub rule (7) of Rule 10 of the Rules of 1965 (as amended vide Gazettee Notification dated 19.10.2022) reads as under:
"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.16 OA No.448 of 2024
"Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under detention and in such case the ninety days' period shall be computed from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later:
Provided further that in a case where no charge sheet is issued under these rules, the total period under suspension or deemed suspension, as the case may be, including any extended period in terms of sub-rule (6) shall not exceed,-
(a) two hundred seventy days from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (a) of sub-rule (1); or
(b) two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause (b) of sub-rule (1) as the case may be; or
(c) two years from the date the Government servant detained in custody is released or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later, in the case of deemed suspension under sub-
rule (2)."
(emphasis supplied) 17 OA No.448 of 2024
9. From the above statutory amended provision(s) stipulated inclause (b) of sub rule (7) of Rule 10 of CCS(CCA) Rules, 1965, it can be seen that in a case where no charge sheet is issued, the total period under suspension, as the case may be, including any extended period in terms of sub rule 10 (6), shall not exceedbeyond two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause (b) of sub-rule (1) as the case may be.
9.1 As noted hereinabove, the applicant herein has been placed under the suspension in terms of sub rule (1) of Rule 10 of the Rules of 1965 w.e.f. 06.04.2023 (vide order dated 11.04.2023), and from the said effective date of suspension of the applicant by initial order till the last extension order dated 9.3.2025, undisputedly, the trial in respect to said criminal proceeding instituted against the applicant remained pending before learned Sessions & Special (ACB) Court, Surat.
At the same time, it is also not in dispute that till date no charge-sheet/charge Memorandum has been issued upon the applicant herein under the Rules of 1965. In other words, from the first date of suspension till the last date of extension of suspension order, the respondents have not issued any charge memorandum/charge sheet under the Rules of 1965 to the applicant.
10. On perusal of the judgment in the case of Ajay Kumar Choudhary, reported in (2015) 7 SCC 291, wherein by taking into consideration that after petitioner therein was placed under suspension, the respondents therein had not issued any Memorandum of Charge or had ever started departmental inquiry/proceedings against the petitioner therein and in the absence of any statutory provisions limiting the continuation of suspension of a Govt. servant, the Hon'ble Apex Court deprecated the prolonged unreasonable long period of suspension and accordingly in para 14 held that:
18 OA No.448 of 2024"We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period, the Memorandum of Charges/Charge sheet is not serviced on the delinquent officer/employee, if the Memorandum of Charges/Charge sheet is served a reasoned order must be passed for the extension of the suspension."
Further it is noticed that in compliance of the aforesaid judgments and directions issued therein, the DoP&T had issued instructions and guidelines vide OM dated 23.08.2016 which read as under:-
"2. In compliance of the above judgment, it has been decided that where a Government servant is placed under suspension, the order of suspension should not extend beyond three months, if within this period the charge sheet is not served to the charged officer. As such, it should be ensured that the charge sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensure that charge sheets are issued in time."
10.1 By following the dicta laid down by the Hon'ble Apex Court in the case of the Ajay Kumar Choudhary (supra) and instructions issued by the DoP&T vide OM dated 23.08.2016, the Ahmedabad Bench of this Tribunal in the case of Sandeep Jot Singh vs. Union of India and another (OA NO.503/2020) vide order dated 21.01.2022 quashed and set aside the impugned extension of suspension orders for the period from 21.12.2017 to 8.12.2020 of the applicant therein mainly on the ground that the respondents therein failed to issue any charge Memorandum within a period of 90 days of initial suspension of the applicant therein and accordingly, directed the respondents therein to reinstate the applicant therein.
19 OA No.448 of 2024Further, in the case of Dr. Chandravanshi Yaduvanshi Manikanhaiya vs. Union of India and another (OA No.21/507/2021) the coordinate Bench of this Tribunal at Hyderabad Bench by referring the judgment passed by the Hon'ble Apex Court in Ajay Kumar Choudhary (supra) and the order passed by CAT Ahmedabad Bench in OA No.503/2020 (supra) as well as other judgments/orders and the DoP&T's OM dated 23.08.2016 had decided that the respondents therein failed to initiate any disciplinary proceedings within initial 90 days of suspension of the applicant therein and, therefore, quashed and set aside the orders of further extension of suspension of applicant therein from the effected date of suspension i.e., 25.10.2018 and subsequent extended till 07.07.2021.
10.2 As noted herein above, learned senior counsel for the applicant by relying on the aforesaid judgment of the Hon'ble Apex Court in Ajay Kumar Choudhary (supra), orders passed by this Tribunal (supra) and the instructions contained in DoP&T's OM dated 23.08.2016 attempted to submit that in the present case, the respondents have also failed to issue Memorandum of charge within three months from initial order of his suspension and without assigning any reasons extended the suspension period of the applicant vide impugned orders, which is in violation of relied upon judgments and DoP&T's OM and therefore, the impugned orders are required to be quashed and set aside.
10.3 In this regard, we observe that under the provisions of Article 309 of the Constitution of India, the sub rule (7) of Rule 10 of the Rules of 1965 was amended vide Gazettee Notification and the same came into force w.e.f. 19.10.2022.
Further, it can be seen that the said amended provisions in sub rule (7) of Rule 10 of the Rules of 1965 specifically deals the situation how long the suspension of the Govt. servant 20 OA No.448 of 2024 should continue in case where no charge sheet is issued under CCS (CCA) Rules, the total period under suspension or deemed suspension, as the case may be, included any extended period in terms of sub rule (6) of Rule 10 of the Rules ibid.
In other words, the said amended provisions of sub rule (7) of Rule 10 of the Rules of 1965 stipulates the maximum time limit for which the Govt. servant be kept under suspension, suffice to state that the said amended provisions stipulates that under no circumstances, the total period under suspension or deemed suspension as the case may be, including any extended period, should not be exceeded beyond two years from the date of initial date of suspension, if the Govt. servant is placed under suspension in terms of clause (aa) or clause (b) of sub rule (1) of Rule 10 of the Rules of 1965 or the Govt. servant detained in custody and has been released or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is letter in the case of deemed suspension under sub rule (2) of Rule 10 of the Rules of 1965 and total period under suspension should not be extended beyond 270 days in the case where a disciplinary proceeding against the Govt. servant has been contemplated or is pending in terms of clause (a) of sub rule (1) of Rule 10 of the Rules of 1965.
10.4 At this stage, it is apt to mention that the Hon'ble Apex Court had decided Ajay Kumar Choudhary's case (supra) on 16.02.2015 and in compliance of which the DoP&T's had issued instructions vide OM dated 23.08.2016, which was undisputedly pronounced/declared much prior to the amendment in sub rule (7) of Rule 10 of the Rules of 1965. Thus, it can be seen that after the said amendment in sub rule (7) of Rule 10 of the Rules ibid came into force, the inbuilt maximum time limit as stipulated for keeping a Govt. servant under suspension shall hold the field as on today.
21 OA No.448 of 2024Suffice to state that the said statutory rules empower the competent authority to extend the period of suspension upto the period of two years from the date of order of suspension, if the Govt. servant is placed under suspension in terms of clause (aa) or (b) of sub rule (1) of Rule 10 of the Rules ibid as provided in clause (b) of sub rule (7) of Rule 10 of the Rules ibid.
Therefore, we are in agreement with the submissions of Mr. H.D. Shukla, learned counsel for the respondents that the judgment relied upon by the applicant are not applicable in the present case, as the sub rule (7) of Rule 10 of the Rules of 1965 has been amended subsequent to the said judgments/OM and as such the said statutory rules gives the competent authority to suspend the officer for maximum of two years for the reasons of pendency of investigation/inquiry/trial being going on.
10.5 In view of foregoing reasons, the submission of learned senior counsel for the applicant that since the respondents failed to issue any Charge Memorandum within the initial period of 90 days from the date of suspension of the applicant and no reason has been assigned for extension of suspension, therefore, the impugned orders are bad in law being contrary to the instructions contained in DoP&T's OM dated 23.08.2016 and the relied upon judgments, is in our considered opinion not tenable, more particularly, in light of amended provisions of sub rule (7) of Rule 10 of the Rules of 1965.
11. Having discussed as above and in the facts and circumstances of the present case, we further observe that in terms of mandate contained in said amended clause (b) of sub rule (7) of Rule 10 of the Rules of 1965, the period of suspension of the applicant from the effective date of his suspension i.e. 06.04.2023 should not have been exceeded beyond two years i.e. 05.04.2025. Therefore, the subsequent order dated 09.03.2025 whereby the respondents extended further period of suspension of 90 days w.e.f. 27.3.2025, which will lapse on 25.06.2025, i.e. beyond the statutory period of two years from the date of initial suspension of the applicant. In our considered view, the said 22 OA No.448 of 2024 order dated 09.03.2025 should have been limited as per the outer limit for total suspension period provided in clause (b) of sub rule (7) of Rule 10 of the Rules ibid and upto that extend the order dated 09.03.2025 is required to be modified by the competent authority in the light of the discussion made hereinabove.
12. So far as contention of the learned senior counsel for the applicant with regard to non-grant of subsistence allowance to the applicant in terms of FR-53 is concerned, we found that the respondents have categorically admitted that the applicant is entitled for grant of subsistence allowance as per the provisions of FR-53. However, no material has been placed by the respondents to ascertain whether the legitimate payable subsistence allowance paid to the applicant herein in terms of the provisions of FR-53. Neither have the respondents produced any reply nor a decision on the representation of the applicant with regard to enhanced subsistence allowance in terms of FR-53. Thus, it is not clear whether the applicant herein has been paid subsistence allowance strictly in accordance with FR-53 or not. Under such circumstances, we are of the considered opinion that while granting the subsistence allowance, if the respondents have not followed the said provisions of FR-53, they are required to follow the same in true letter and spirit. If any arrears are admissible, the same is also required to be paid to the applicant forthwith.
13. In the result, we do not find any legal infirmity in the impugned orders of extension of suspension of the applicant (Annexure A-1 colly.).
So far as the order dated 09.03.2025 passed during the pendency of the OA extending the suspension of the applicant for another 90 days w.e.f. 27.3.2025 is concerned, the same is liable to be modified as the same extends the period of suspension of the applicant beyond the statutory limit stipulated in clause (b) of sub rule (7) of Rule 10 of the Rules ibid.
14. Hence, the OA is disposed of in the following terms:-
(i) The suspension of the applicant should not be exceeded beyond the period of two years from the effective date of his suspension 23 OA No.448 of 2024 i.e. 06.04.2023 in terms of clause (b) of sub rule (7) of Rule 10 of the Rules ibid;
(ii) The respondents are directed to modify the order dated 09.03.2025 passed by the respondents during the pendency of the OA extending the suspension of the applicant for another 90 days w.e.f. 27.03.2025, keeping in view the aforesaid provisions of clause (b) of sub rule (7) of Rule 10 of the Rules ibid;
(iii) The applicant should be reinstated upon revocation of suspension in terms of clause (b) of sub rule (7) of Rule 10 of the Rules ibid read with sub rule (5) (c) of Rule 10 of the Rules ibid
(iv) The applicant be paid subsistence allowance forthwith strictly in terms of the provisions of FR-53 including arrears thereof, if any, if not paid.
(v) The above exercises shall be complied with within four weeks from the date of receipt of a copy of this Order.
15. There shall be no orders as to costs.
16. Pending MA(s), if any, shall also stand disposed of.
(Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (A) Member (J)
/Nk/Anu/