Manipur High Court
Date: Shri Moirangthem Sushil Singh vs The State Of Manipur Through The ... on 18 August, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
Page |1
JOHN
IN THE HIGH COURT OF MANIPUR
TELEN KOM AT IMPHAL
WP(C) No. 226 of 2022
Date: Shri Moirangthem Sushil Singh, aged about 37
2022.08.18 years old, S/O M. Ingocha Singh of Khangabok
12:56:19 +05'30' Part-II Makha Leikai, P.O. and P.S. Thoubal,
Thoubal District, Manipur.
-- -- -- Petitioner
- VERSUS-
1. The State of Manipur through the Principal
Secretary/Commissioner (Home), Government of
Manipur, Old Secretariat P.O. & P.S. Imphal,
Imphal West District, Manipur-795001.
2. The Director General of Police, Manipur,
Babupara, P.O. & P.S. Imphal, Imphal West
District, Manipur-795001.
3. The Superintendent of Police, Thoubal, P.O. &
P.S. Thoubal, Thoubal District, Manipur-795138.
-- -- -- Respondents
HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioners :: Mr. N. Bipin, Advocate For the Respondents :: Mr. H. Samarjit, GA.
WP(C) No. 226 of 2022Page |2 Date of Hearing and reserving Judgment & Order :: 07.07.2022 Date of Judgment & Order :: 19.08.2022 JUDGMENT AND ORDER (CAV) This writ petition has been filed to quash the impugned suspension order dated 2.9.2021 issued by the third respondent and to direct the respondents to release the entitled subsistence allowance of the petitioner within a stipulated period.
2. Briefly stated, the case of the petitioner is as follows: The petitioner was appointed as driver in the Manipur Police Department and joined as driver in the office of the Superintendent of Police, Thoubal District. On 27.8.2021, the petitioner was proceeding from Khangabok to Moreh by carrying Rs.50,000/- for purchasing some carpets and household items from Moreh. Thereafter, the petitioner was proceeding from Moreh to Khangabok after completing his purchase by hiring one Eco Van Taxi. While he was approaching Wangjing Bridge on his way from Moresh to Khangabok, he has been informed by a senior police officer to WP(C) No. 226 of 2022 Page |3 meet at Wangjing Bazaar. Accordingly, the petitioner met the senior police officer and thereafter, the petitioner was taken to a place near Khongjom by the team of the senior police officer.
Subsequently, the petitioner and two others were arrested in connection with an alleged incident that occurred at Moreh on a report submitted by one senior officer of the police department in connection with transportation of illegal drugs contraband items from Moreh towards Imphal and he was handed over to Moreh Police Station on 28.8.2021 and case in FIR No.42(8)2021 under Section 21(c)/29/60(3) of ND&PS Act was registered by the Moreh Police Station against the petitioner and others.
3. Further case of the petitioner is that after knowing the arrest, the third respondent placed the petitioner under suspension vide the impugned order dated 2.9.2021. On medical ground, the petitioner was granted interim bail and released o 24.2.2022. He was wrongly implicated in the FIR and as on date, no charge sheet has been filed against the petitioner in the FIR case.
4. According to the petitioner, placing a Government employee under suspension for a long period shall not serve WP(C) No. 226 of 2022 Page |4 any purpose, because the suspended employee has to be paid subsistence allowance under the provisions of the relevant Rules and on the other hand, the suspended employee shall not discharge any useful or productive duty for the concerned period.
5. Under Rule 10(7) of the CCS (CCA) Rules, an order of suspension made or deemed to have been made under the rules shall be reviewed by the competent authority to modify or revoke the suspension, before expiry of 90 days from the date of order of suspension and if the said order of suspension is not reviewed/extended for further period as provided under Rule 10(6), the order of suspension shall cease to exist after expiry of 90 days in view of the provision to Rule 10(7) of CCS (CCA) Rules, 1965. The petitioner is under suspension for more than 180 days and no review committee was constituted before expiry of 3 months from initial date of suspension. Thus, the impugned suspension order is liable to be revoked.
6. The respondents 2 and 3 filed affidavit-in- opposition stating that after collecting materials against the petitioner and considering the probability of the petitioner being involved in FIR No.42(8)2021, the petitioner was implicated and WP(C) No. 226 of 2022 Page |5 arrested. In fact, the petitioner is the main accused in the said FIR. It is stated that the petitioner was on interim bail since 6.10.2021 on medical grounds as he was found suffering from severe Bronchitis with acute Asthmatic attached which required proper specialized medical treatment and that the interim bail was extended from time to time by the Court upon finding the condition of the petitioner.
7. It is stated that as per the Circular dated 12.9.1995 of the Director General of Police, it was informed that appointment, dismissal etc. of subordinate police officers (from constable upto inspector) is governed by Section 7 of the Police Act, 1861 and for its operation Assam Police Manual has been framed and hence the provisions of CCS (CCA) Rules will not be applicable for disciplinary proceedings of subordinate police personnel in the rank of Constable to Inspector. Rule 10(7) of CCS (CCA) Rules, 1965 is inapplicable in the case of the petitioner. Hence, the respondent authorities prayed for dismissal of the writ petition.
8. Assailing the impugned suspension order, Mr. N. Bipin, the learned counsel for the petitioner submitted that the petitioner has been falsely implicated in FIR42(8)2021 WP(C) No. 226 of 2022 Page |6 registered under Section 21(c)/29/60(3) of the ND & PS Act on the file of the Moreh Police Station and that based on the false FIR, he has been suspended vide impugned order dated 2.9.2021.
9. The learned counsel further submitted that the petitioner is under suspension for more than 180 days and no review committee was constituted before expiry of 90 days from the initial date of suspension i.e. 2.9.2021. In terms of the provision of Rule 10(6) and (7) of the CCS (CCA) Rules, suspension order deserves to be revoked after completion of 90 days from the date of suspension.
10. The learned counsel urged that there is no review committee meeting for extension of suspension period of the petitioner after completion of 90 days was held. Therefore, the suspension order is an act of arbitrary exercise of power violating the relevant provisions of CCS (CCA) Rules.
11. The learned counsel added that the petitioner was granted interim bail on medical ground and, in fact, the petitioner was not paid the entitled subsistence allowance till WP(C) No. 226 of 2022 Page |7 date. Thus, a prayer is made to set aside the impugned suspension order dated 2.9.2021.
12. This Court considered the rival submissions and also perused the materials available on record.
13. The grievance of the petitioner is that detaining and suspending of the petitioner from service only for naming him in the FIR is unfair and the petitioner ought to have been re-instated once the 90 days of suspension period is over, as no review committee meeting was held for extension of suspension period.
14. The impugned order dated 2.9.2021 was issued by the third respondent in exercise of power conferred under Section 7 of the Police Act, 1861 read with Rule 66 of Assam Police Manual Part-III.
15. The learned counsel for the petitioner submitted that while issuing the suspension order, the third respondent had applied the true spirit and intent of Rule 10(2) of the CCS (CCA) Rules and, therefore, it ought to apply the aforesaid spirit by which the suspension order is required to be reviewed before expiry of 90 days and the suspension order shall not be valid WP(C) No. 226 of 2022 Page |8 after the period of 90 days, unless extended after a review for a further period of 90 days and, in any case, it cannot be extended beyond 180 days at a time.
16. Relying upon the provisions of Rule 10(6) and (7), the learned counsel further submitted that the suspension order dated 2.9.2021 is not sustainable in the eye of law for the simple reason that it was not reviewed before the expiry of 90 days from the date of order of suspension.
17. By relying upon the decision of the Hon'ble Supreme Court in the case of Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147, Mr. H. Samarjit, the learned Government Advocate submitted that long period of suspension does not make the order of suspension invalid and even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in the case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension that the respondent authorities are ready to review the suspension order and issue appropriate order thereof.
WP(C) No. 226 of 2022Page |9
18. In Union of India v. Ashok Kumar Aggarwal, supra, the Hon'ble Supreme Court held thus:
"19. During suspension, the relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Thus, a suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the criminal court, but it cannot be treated as a punishment even by any stretch of imagination in the strict legal sense. (Vide O.P. Gupta v. Union of India [(1987) 4 SCC 328 : 1987 SCC (L&S) 400 : (1987) 5 ATC 14 : AIR 1987 SC 2257] and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679 : 1999 SCC (L&S) 810 : AIR 1999 SC 1416] )
20. In State of Orissa v. Bimal Kumar Mohanty [(1994) 4 SCC 126 : 1994 SCC (L&S) 875 : (1994) 27 ATC 530] this Court observed as under: (SCC p. 133, para 13) WP(C) No. 226 of 2022 P a g e | 10 "13. ... the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider ... and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. ... In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent WP(C) No. 226 of 2022 P a g e | 11 having had an opportunity in office to impede the progress of the investigation or inquiry, etc. ... It would be another thing if the action is actuated by mala fides, arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge."
(emphasis added) (See also R.P. Kapur v. Union of India [AIR 1964 SC 787] and Balvantrai Ratilal Patel v. State of Maharashtra [AIR 1968 SC 800]
21. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in WP(C) No. 226 of 2022 P a g e | 12 reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry.
22. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank, etc. WP(C) No. 226 of 2022 P a g e | 13
23. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel [(2006) 8 SCC 200] this Court explained: (SCC p. 209, para 18) "18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is WP(C) No. 226 of 2022 P a g e | 14 incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision."
24. Long period of suspension does not make the order of suspension invalid. However, in State of H.P. v. B.C. Thakur [1994 SCC (L&S) 835 : (1994) 27 ATC 567] , this Court held that where for any reason it is not possible to proceed with the domestic enquiry the delinquent may not be kept under suspension.
25. There cannot be any doubt that the 1965 Rules are a self-contained code and the order of suspension can be examined in the light of the statutory provisions to determine as to whether the suspension order was justified. Undoubtedly, the delinquent cannot be considered to be any better off after the charge-sheet has been filed against him in the court on conclusion of the investigation than his position during the investigation of the case itself. (Vide Union of India v. Udai Narain [(1998) 5 SCC 535 : 1998 SCC (L&S) 1418] .) WP(C) No. 226 of 2022 P a g e | 15
26. The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Shardul Singh [(1970) 1 SCC 108] , P.V. Srinivasa Sastry v. Comptroller & Auditor General [(1993) 1 SCC 419 : 1993 SCC (L&S) 206 : (1993) 23 ATC 645] , ESI v. T. Abdul Razak [(1996) 4 SCC 708 : 1996 SCC (L&S) 1061] , Kusheshwar Dubey v. Bharat Coking Coal Ltd. [(1988) 4 SCC 319 : 1988 SCC (L&S) 950] , Delhi Cloth & General Mills Ltd. v. Kushal Bhan [AIR 1960 SC 806], U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan [1993 Supp (3) SCC 483 : 1994 SCC (L&S) 67 : (1993) 25 ATC 764] , State of Rajasthan v. B.K. Meena [(1996) 6 SCC 417 : 1996 SCC (L&S) 1455] , Prohibition and Excise Deptt. v. L. Srinivasan [(1996) 3 SCC 157 : 1996 SCC (L&S) 686 : (1996) 33 ATC 745] and Allahabad Bank v. Deepak Kumar Bhola [(1997) 4 SCC 1 : 1997 SCC (L&S) 897] , wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of WP(C) No. 226 of 2022 P a g e | 16 suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial cannot be a ground for quashing the suspension order, if WP(C) No. 226 of 2022 P a g e | 17 the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.
27. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as to which version is true when there are claims and counterclaims on factual issues. The court cannot act as if it is an appellate forum de hors the powers of judicial review.
28. Rule 10 of the 1965 Rules provides for suspension and clause 6 thereof provides for review thereof by the competent authority before expiry of 90 days from the effective date WP(C) No. 226 of 2022 P a g e | 18 of suspension. However, the extension of suspension shall not be for a period exceeding 180 days at a time. CVC can also review the progress of investigation conducted by CBI in a case under the 1988 Act.
29. The Vigilance Manual issued by CVC on 12-1-2005 specifically deals with suspension of a public servant. Clause 5.13 thereof provides that the Commission can lay down the guidelines for suspension of a government servant. However, if CBI has recommended suspension of a public servant and the competent authority does not propose to accept the said recommendation, the matter may be referred to CVC for its advice. CBI may be consulted if the administrative authority proposes to revoke the suspension order. Clause 6.1 read with Clause 6.3.2 thereof provide that suspension is an executive order only to prevent the delinquent employee to perform his duties during the period of suspension. However, as the suspension order constitutes a great hardship to the person concerned as it leads to reduction in emoluments, adversely affects his prospects of promotion and also carried a stigma, an order of suspension should not be made in a perfunctory or in a routine and casual manner WP(C) No. 226 of 2022 P a g e | 19 but with due care and caution after taking all factors into account."
19. The learned Government Advocate urged that by following the decision in the case of Union of India v. Ashok Kumar Aggarwal, supra, this Court in W.P.(C) No.638 of 2015, decided on 25.01.2016 [Palmei Langbanjao v. State of Manipur and others], while disposing of the writ petition held that "in the present case, the stand of the State Government is not clear as to the stage of investigation but considering the limited facts and the law laid down by the Hon'ble Supreme Court in the case of Union of India v. Ashok Kumar Aggarwal (supra), this court is of the view that the ends of justice will be made by disposing of the present writ petition with the direction that the State respondents shall review the suspension order and issue an appropriate order thereof".
20. The learned Government Advocate further submitted that since the order impugned was issued under Section 7 of the Police Act, 1891, the CCS (CCA) Rules are not applicable for disciplinary proceedings of subordinate police personnel from the rank of Constable to Inspector. As such, the WP(C) No. 226 of 2022 P a g e | 20 question of review of the order of suspension before expiry of 90 days from the date of suspension or cessation of the order after expiry of 90 days does not arise.
21. Section 7 of the Police Act, 1861 provides:
"7. Appointment, dismissal, etc., of inferior officers.- Subject to the provisions of article 311 of the Constitution, and to such rules as the State Government may from time to time make under this Act, the Inspector- General, Deputy Inspectors- General, Assistant Inspector-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same; or may award any one or more of the following punishments to any police-officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely:-
(a) fine to any amount not exceeding one month's pay;
(b) confinement to quarters for a term not exceeding fifteen days, with or without WP(C) No. 226 of 2022 P a g e | 21 punishment- drill, extra guard, fatigue or other duty;
(c) deprivation of good- conduct pay;
(d) removal from any office of distinction or special emolument.
22. As could be seen from the provisions of Assam Police Manual, the continuation of suspension has to be based on factors and considerations as contemplated under Para 2.1.4 to Para 2.1.8, which read thus:
"2.1.4. Although suspension is not a punishment by itself, it cannot be denied at the same time that in such cases the officers placed under suspension suffer a lot. Apart from this suspension of a Government Servant is a liability on the part of the Government. The idea behind placing an officer under suspension is not to inflict punishment, which can be done only when the charges are proved, but to safeguard against further loss to Government, manipulation of records, intimidation of witnesses or embarrassment to Government in the public eye, as in the case, where moral turpitude is involved. In all cases of suspension the elementary justice demands that the period of suspension should be reduced to the barest WP(C) No. 226 of 2022 P a g e | 22 minimum. It is, therefore, necessary to conclude proceedings drawn up as quickly as possible and in any case if it is not possible to do so due to reasons beyond control, the persons proceeded against may be allowed to resume their duties, where possible in places away from their former place of duty, vacating the suspension order so as to save Government expenditure in the event of his acquittal. 2.1.5. By way of clarification, of the general principle enunciated above, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government Servant under suspension. These are only intended for guidance and should not be taken as mandatory.
(i) cases where continuance in office of a Government Servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering of documents and intimidation of witnesses);
(ii) where the continuance in office of a Government Servant is likely to seriously subvert discipline in the office in which the Government Servant is working;
(iii) where the continuance in office of a Government Servant will be against the wider WP(C) No. 226 of 2022 P a g e | 23 public interest (other than the cases covered by
(i) and (i) above) such as there is a public scandal against him and it is necessary to place the Government Servant under suspension to demonstrate the policy of government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) where allegations have been made against a Government Servant and the preliminary enquiry has revealed that a prima facie case is made out which would justify his prosecution or his being proceeded against in departmental proceedings and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.
2.1.6. In the first three circumstances enumerated above, the Disciplinary Authority may exercise his discretion to place a Government Servant under suspension even when the case is under investigation and before a prima facie case has been established. 2.1.7. Certain types of misdemeanour where suspension may be desirable in the circumstances mentioned above are indicated below-
(i) any offence or conduct involving more turpitude;
WP(C) No. 226 of 2022
P a g e | 24
(ii) corruption, embezzlement or
misappropriation of Government money,
possession of disproportionate assets, misuse of official power for personal gain;
(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;
(iv) desertion of duty, and
(v) refusal or deliberate failure to carry out written orders of superior officers. In respect of types of misdemeanor specified in sub-clause (iii), (iv) and (v) discretion has to be exercised with care.
2.1.8. The following principles and procedure with regard to suspension need strict compliance-
(i) suspension should be resorted to only in cases where a major punishment is likely to be imposed if the charges are proved;
(ii) charges and the statement of allegations should be served within three months from the date of suspension failing which the Government Servant concerned should be reinstated; and
(iii) in cases where it is not reasonably practicable to prepare the charges for service within three months from the date suspension and the continued suspension of the Government servant is considered WP(C) No. 226 of 2022 P a g e | 25 necessary in the public interest, the authority concerned should move the Personnel Department through Administrative Department well before the expiry of the period of three months with a letter detailing the nature of the allegations and the reasons for which charges could not be prepared so that the Personnel Department could advise whether any further extension of the period of suspension should be permitted or not".
23. The immediate circumstance of his being arrested and detained for more than 48 hours would not have much relevance to decide on the continuation of the suspension, as the involvement of the employee would depend upon the material gathered against him showing prima facie involvement in the crime and other factors mentioned in Para 2.1.4 to Para 2.1.8 of the Assam Police Manual and not his arrest.
24. Thus, it is clear that where charge-sheet in connection with criminal case has not been submitted before the competent court within three months, the disciplinary authorities would be required to review the continuance of suspension by seeking advice of the Department of Personnel.
WP(C) No. 226 of 2022P a g e | 26 As a consequence, if such review is not held within three months where charge-sheet is not filed before the competent court, the suspended employee would be entitled to be reinstated in service.
25. Though the impugned suspension order was issued in exercise of power conferred under Section 7 of the Act of 1861, the procedure to be followed before and after the suspension order is not prescribed in Section 7 of the Act of 1861.
26. It is apposite to mention that merely because an employee is arrested and detained for more than 48 hours does not ipso facto lead to the inference that the employee is guilty of the offences. There may or may not be prima facie case against him but may be arrested and detained more than 48 hours on more suspicion and his involvement. It may be also noted under criminal jurisprudence till charge sheet is filed, it cannot be also presumed that there is a prima facie case against an accused. However, irrespective of the nature of charges, continuation of suspension of a person who had been arrested and detained would be guided by similar WP(C) No. 226 of 2022 P a g e | 27 considerations as enumerated in Para 2.1.4 to 2.1.8 of the Manual, supra.
27. It is not the case of the respondents that charge-
sheet has been filed in the criminal case. Thus, it is clear that till date neither any charge-sheet has been filed in the criminal case nor any departmental proceeding has been initiated against the petitioner by issuing any charge memo and the petitioner continued to remain under suspension till date.
28. In Ajay Kumar Choudhury v. Union of India and others, (2015) 7 SCC 291, the Hon'ble Supreme Court held:
"21. 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 served 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. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing WP(C) No. 226 of 2022 P a g e | 28 the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
29. At this juncture, the learned counsel for the petitioner urged that while issuing the impugned suspension order, the third respondent applied the spirit and intent behind Rule 10(2) of CCS (CCA) Rules. Therefore, the authority ought to apply the spirit of other provisions of Rule 10(6) and (7) by WP(C) No. 226 of 2022 P a g e | 29 which the suspension order is required to be reviewed before the expiry of 90 days. Hence, the impugned suspension order is not sustainable in view of the provisions of Rule 10(6) and (7) for the simple reason that it was not reviewed before the expiry of 90 days from the date of the order of suspension.
30. In Union of India and others v. Deepak Mali, (2010) 2 SCC 222, the Hon'ble Supreme Court held:
"10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the respondent and when the petitioner's case came up for review on 20-10-2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of sub-rules (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was WP(C) No. 226 of 2022 P a g e | 30 extended after review for a further period of ninety days.
11. The case sought to be made out on behalf of the petition Union of India as to the cause of delay in reviewing the respondent's case, is not convincing. Section 19 (4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension."
31. It is settled law that there cannot be any doubt that the CCS (CCA) Rules, 1965 are a self-contained code and the order of suspension can be examined in the light of the statutory WP(C) No. 226 of 2022 P a g e | 31 provisions to determine as to whether the suspension order was justified. Undoubtedly, the delinquent cannot be considered to be any better off after the charge sheet has been filed against him in the court on conclusion of the investigation than his position during the investigation of the case itself.
32. As per the dictum laid down by the Hon'ble Supreme Court in the case of Union of India v. Ashok Kumar Aggarwal, supra, long period of suspension does not make the order of suspension invalid and even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the Court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned.
33. From the legal prescription propounded by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhury v. Union of India and others, supra, it is seen that the currency WP(C) No. 226 of 2022 P a g e | 32 of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employees.
34. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry.
35. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, WP(C) No. 226 of 2022 P a g e | 33 arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.
36. In the instant case, it is beyond any demur that the memorandum of charges/charge sheet has not been filed till date, though the petitioner was suspended on 02.09.2021.
Therefore, there cannot be other option but to make interference with the impugned order of suspension dated 02.09.2021, which is accordingly done. As a result, the respondent authorities shall forthwith reinstate the petitioner to his post. It is, however, made clear that the employer will be at liberty to post the petitioner as per the administrative exigency.
The petitioner shall be entitled to the subsistence allowance for the period of suspension, which shall be paid within four weeks from the date of receipt of a copy of this order.
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37. With the aforesaid observation and direction, this writ petition is allowed. There will be no order as to costs.
JUDGE FR/NFR Sushil WP(C) No. 226 of 2022