Central Administrative Tribunal - Delhi
Sh. D.J. Gupta vs Lt. Governor on 5 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2014/2012 Monday, this the 5th day of October 2012 Honble Shri George Paracken, Member (J) Honble Smt. Manjulika Gautam, Member (A) Sh. D.J. Gupta S/o Sh. S.C. Gupta, R/o House No.-72, Vigyan Lok, Delhi 110092. ..Applicant (By Advocate: Shri N.K. Rahotgi) Versus 1. Lt. Governor, Govt. of NCT of Delhi, New Delhi. 2. The Secretary (Services), Delhi Sachivalaya, I.P. Estate, GNCT, New Delhi. 3. The Commissioner, Trade & Taxes Department, Vyapar Bhawan, Govt. of NCT of Delhi, New Delhi. ..Respondents (By Advocate: Shri Vijay Pandita) O R D E R (ORAL)
Shri G George Paracken:
The applicant, a DANICS Officer (Ad hoc) Group B Gazetted while working in the office of the third Respondent, namely, the Commissioner (Trade & Taxes Department), Vyapar Bhawan, Govt. of NCT of Delhi, New Delhi, was placed under suspension vide order dated 09.03.2005. His grievance is that the order of suspension would not survive after the period of 90 days unless it was extended after review under Sub Rules 6 and 7 of Rule 10 of the CCS (CCA) Rules, 1965. The said rules read as under:-
(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority 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 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) An order of suspension made or deemed to have been made under sub-rules (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
2. The brief facts of the case are that the applicant was placed under suspension vide Annexure A-1 order dated 09.03.2005 for his alleged acceptance of bribe from an assessee. In terms of the aforesaid rules, the said order of suspension was valid only for a period of 90 days, i.e., 06.06.2005 unless it was reviewed and extended within the said period. However, vide Annexure A-2 order dated 24.08.2005, the respondents have stated that on the recommendation of the Review Committee, it was decided to extend the period of suspension of the Applicant by another 180 days w.e.f. 7.6.2005. Thereafter, he was reinstated in service w.e.f. 01.04.2011 and he was charge sheeted on 29.06.2011 on the next date, i.e., on 30.06.2011, he retired from service. However, the departmental inquiry continued is in progress under Rule 9 of the CCS (Pension) Rules, 1972.
3. The applicant has also stated that though the ad hoc DANICS were allowed the pay scale of Rs.8000-13500 vide the respondents Annexure A-3 order dated 10.10.2007, yet the same was not granted to him as he was continuing under suspension w.e.f. 09.03.2005. He has also stated that for the same reason, the respondents have not given him the benefits of the revision of pay as per the 6th Central Pay Commission (CPC for short) recommendations and the annual increments from the date he was suspended i.e. from 09.03.2005. He was also denied the retirement benefits like Gratuity, leave encashment, commutation of pension etc. Therefore, he has filed this Original Application seeking the following reliefs:-
i) Allow the present Original Application.
To direct the Respondent No.3, to pay full Pay and Allowances to the applicant w.e.f. 8.6.2005.
To allow the pay scale of Rs.8000-13500 to the applicant on the basis of orders dated 10.10.2007 of Dy. Secretary (Services) and to pay the arrears of Pay and Allowances & other consequential benefits.
To pay leave Encashment and Gratuity admissible to the applicant.
To revise the pension as per enhanced pay scale.
To pay interest @ 18% on of delayed payments.
To allow benefit of 6th Pay Commission.
viii) Any other relief which Tribunal may deem fit.
4. In support of his contention that unless the suspension was reviewed within 90 days, it gets automatically revoked, he has relied upon the judgment of the Apex Court in Union of India v. Dipak Mali, (2010) 2 SCC 222 and orders of the Bombay Bench of this Tribunal in A.K. Jain v. Union of India (OA No.482/2007) decided on 19.02.2010, Devendra Chaturvedi v. Union of India decided on 08.09.2010 and that of the Principal Bench of this Tribunal in Ravindra Mohan Dayal v. Union of India & another (OA-2971/2009) decided on 17.03.2010.
5. The relevant part of the judgment in Union of India v. Dipak Mali is as under:-
10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dated relating to suspension of the Respondent and when the Petitioners case came up for review on 20th October, 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 extended after review for a further period of 90 days.
11. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondents case, is not very 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.
12. For the said reasons, we are not inclined to interfere with the impugned order of the High Court and the Special Leave Petition is, accordingly, dismissed.
13. There will, however, be no order as to costs.
6. The relevant part of the Order in OA-2971/2009 (supra) is as follows:-
There would be no need to refer to sub-rule (9) as well. Perusal of sub-rule (8) would reveal that the order of suspension made under rule 3 which has not been extended, shall be valid for a period not exceeding 90 days, and that an order of suspension which has been extended shall be valid for a period not exceeding 180 days at a time. Further, an order of suspension made or deemed to have been made or continued, shall be reviewed by the competent authority on the recommendations of the concerned review committee, and that the period of suspension under sub-rule (1) can be extended for a further period not exceeding 180 days at a time, and where no such order has been passed, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed. The first order of suspension would be valid for a period not exceeding 90 days, and the same to operate further would necessarily require a review within 90 days. The review may be for 180 days at a time and unless, it is reviewed, the same would not be valid. Every next review of suspension, if the authorities may consider continuing suspension of an employee, would have to be within 180 days, failing which the same would lapse. The order of suspension has been admittedly passed under rule 3 of the Rules of 1969. The respondents are conscious as well that the suspension had to be reviewed within the stipulated time as mentioned in various clauses of sub-rule (8) of rule 3. What, however, they have done is that the initial order of suspension dated 6.6.2007 has been reviewed on 18.12.2008 and 17.3.2009, extending the period of suspension from the dates it was required to be extended. Last order dated 17.3.2009 reviewing suspension is also later than the date it was required to be reviewed. What the respondents have done appears to be clearly inadmissible and against provisions of sub-rule (8). Joint order extending the period of suspension, like the one dated 18.12.2008 and order dated 17.3.2009 do not appear to be permissible at all. Immediately before expiry of 90 days a specific order extending the same by 180 days had to be passed. It would not, in our considered view, be at all permissible for the respondents to pass a joint order covering all the earlier periods, as has been done in the present case. In number of judicial precedents recorded by this Tribunal it has been held that order reviewing and extending suspension beyond the stipulated periods as mentioned in sub-rule (8) of rule 3 of the Rules of 1969, would be illegal. Reference in this connection be made to a Division Bench judgment of the Principal Bench of this Tribunal in OA No.718/2006 and OA No.2075/2006 decided on 25.4.2007 in the matter of Ravi Shankar Srivastava v Union of India. The applicant in the said case who was an IAS officer of the Rajasthan cadre, was functioning in the super time scale on the post of Joint Secretary and was posted as Member of the Revenue Board, Ajmer. He was implicated in an FIR under the Prevention of Corruption Act, 1988, and was placed under suspension on account of investigation of a criminal case on 12.6.2004. His OA No.2622/2005 filed on that behalf was disposed of on 24.1.2006 on the basis of DOP&T OM dated 7.1.2004 with the following directions:
In the facts and circumstances of the case, the present O.A. stands disposed of by directing the respondents to reinstate the applicant in service forthwith as per Para-3 of the DoP&T O.M. dated 7.1.2004. Of course, they are competent to hold a review meeting justifying any further material for continuation of suspension. 180 days, as per the directions of the Tribunal, had to be counted from 1.3.2006, which period had expired on 27.8.2006, whereas extension of suspension on review was done beyond the period of 180 days, i.e., on 181st day. The order was held illegal. Further, sub-rule (8) of rule 3 of the Rules of 1969 was held to be general, which would apply to suspension both on account of disciplinary proceedings and on account of involvement in criminal case. The pertinent observations made by the Honble Bench in that regard read, thus:
However, as All India Services Rules are statutory in nature and would have to be applied with all vigor, though there is a stipulation in the matter of a Member of all India Service on account of criminal charge to be continued under suspension till culmination of the criminal charge, yet Rule 8 (a), which is a general rule, is an exception to both suspension on account of disciplinary proceedings and on account of involvement in criminal case lays down a methodology whereby despite pendency of the same a timely review of the suspension has to be done, clearly provides that suspension is valid for a period of 90 days initially, then on timely review of the suspension for a period of 180 days would make it in accordance with law. However, the period of suspension has necessarily to be extended before the expiry of 180 days by an order to be issued on holding a meeting of the review committee before the extended time on review of the suspension. Mumbai Bench of this Tribunal has taken the same view in OA No.482/2007 decided on 19.2.2010 in the matter of A. K. Jain v Union of India. Relevant observations made by the Bench read, thus:
Rule 3(8) of AISDA Rules makes elaborate provisions for review and extension of suspension. The opening words of Clause (a) thereof make it clear that the provisions of sub-rule (8) apply to all cases of suspension under Rule 3. That is, not only the suspensions ordered under Rule 3(1), the suspensions ordered under Rule 3(3) would also be subject to review of extension as per rule 3(8). Such a view appears incongruous with the provisions of Rule 3(3). But, here again, it is not really so. It was further held that:
9. The connected question to be considered is whether the review and consequential order of extension has to be passed before the expiry of the original or extended period of suspension or can be passed any time after that. This is not really a question because of clear provisions of sub-Rule (8) itself. If at all, it can only be regarded a doubt in some quarters. The proviso to sub-Rule (8) makes it clear that unless an order of extension of suspension has been passed under that sub-Rule, the relevant order shall stand revoked with effect from the date of expiry of the order being reviewed. It is clear from the wordings of the proviso that a belated review being undertaken, such review shall not save the order of suspension which otherwise shall stand revoked with effect from the date of expiry of the original order or the extended period of suspension.
4. The language of the statute being absolutely clear, supporting the cause of the applicant that review of suspension carried out in the present case jointly for all the earlier periods, would be illegal, there would be no need to refer to any judicial precedents. We are, however, in complete and respectful agreement with the view expressed in judicial precedents mentioned above. The plea raised by the applicant, however, that the initial order of suspension dated 6.6.2007 would also be illegal, as the same was passed under clause (a) of sub-rule (1) of rule 3 of the Rules of 1969, whereas it was required to be passed under sub-rule (2) of rule 3, and that the corrigendum dated 14.11.2007 substituting clause (a) of sub-rule (1) with sub-rule (2) would not validate an illegal order, in our view, has no merit. The circumstances existed where the applicant could be, and rather ought to have been, placed under suspension. The power to suspend him being there, mere mention of wrong provision, which was corrected later, would not invalidate the order. It is too well settled a proposition of law that when the power exists, making no mention of the source thereof or mentioning a wrong provision, would not invalidate the order. The suspension of the applicant, however, beyond 5.9.2007, i.e., 90 days from the initial order of suspension dated 6.6.2007, would be illegal.
5. The learned counsel representing the respondents would cite some judicial precedents under different set of rules, where rule 3(8) of the Rules of 1969 or a rule akin to that was not there at all. That being so, such decisions would be wholly inapplicable and there would be no need to make reference of the same. In all fairness to the learned counsel, however, we may mention that he has placed reliance upon a judgment of the Honble Supreme Court in Union of India v Rajiv Kumar [(2003) 6 SCC 516] dealing with rule 10 of the CCS (CCA) Rules, 1965, which, by the relevant date, would have no provision like sub-rule (8) of rule 3 of the Rules of 1969.
6. Before we may part with this order, we may mention that we are conscious that the applicant is involved in a case of corruption which is very serious, and ordinarily, no court or tribunal would interfere in such matters, but once the legislature has made provision for reviewing the order of suspension in all circumstances, be it a case of departmental enquiry or involvement of an employee in a criminal case, including that of corruption, the court has no choice but for to declare the orders that may be against rules, to be invalid. It is for the legislature to think over and make distinction between ordinary cases of indiscipline and those involving moral turpitude, such as corruption. As of now, however, the rules make no such distinction. The court, as mentioned above, would have no choice in the matter.
7. We may also mention that the respondents in their counter reply have raised the issue of jurisdiction. It is their case that the Original Application ought to have been filed in Mumbai Bench of the Tribunal, but the applicant, we may mention, had made an application seeking retention at the Principal Bench, which was allowed vide order dated 9.10.2009 in the presence of the learned counsel representing the respondents, and that is why, perhaps, no arguments with regard to jurisdiction have been raised during the course of arguments.
8. For the reasons recorded above, this Application is partly allowed. Orders dated 18.12.2008 and 17.3.2009 reviewing the suspension of the applicant from retrospective dates, even though not so specifically mentioned, but may be construed so impliedly, are set aside. The applicant shall be deemed to be in service with effect from 6.9.2007 and made over his pay and other emoluments. In the peculiar facts and circumstances of the case, there would be, however, no order as to costs.
7. As regards his contention that annual increments are admissible during the period of suspension and they have to be taken into consideration for calculating the monthly payment of subsistence allowance are concerned, he has relied upon the judgment of the Honble Supreme Court in Balwant Rai Rati Lal Patel v. State of Maharastra, AIR 1968 SC 800 and the decision of the Honble High Court of Allahabad in Maritunjai Singh v. State of UP and Others, AIR 1971 Allahabad 214 (V. 58 C 47) wherein it was held that the contract of service subsists during the period of suspension, the employee remains in service and he is entitled to all benefits of service, even though he is not expected to work. The increments shall ordinarily be drawn as a matter of course unless it is withheld. Learned counsel has also relied upon the order of this Tribunal in U. Gangaraju v. D.R.M. SCR, Vijaywada & Ors., 1992 (3) AISLJ CAT 235, the order of Hyderabad Bench of this Tribunal rendered in Saranjit Singh v. Director, Employment (O.A. No. 1056/2011), Rajeswari Chauhan v. Director, Social Welfare (O.A. No. 1073/2011) (Annexure A-9) and Sh. P.C. Mishra v. Union of India & Ors. (OA No. 1056/2008) (Annexure A-10). The order passed in the case of P.C. Mishra v. Union of India & Ors., by the Honble Tribunal was upheld by the Honble High Court of Delhi in W.P. (C) No. 9042/2009 decided on 15.02.2010 (Annexure A-11).
8. The respondents have filed their reply stating that the applicant was dismissed from service under Article 311 (2) (b) of the Constitution of India read with Rule 19 (ii) of the Rules 1965. He was later on reinstated on 01.04.2011. Thereafter, he was charge sheeted on 29.06.2011. He finally retired on 30.06.2011. Hence, he is entitled only for provisional pension and not for payment of leave encashment, DCRG, commuted pension etc., in view of Rule 9 (4) and Rule 69 (1) (a) and (c) of the CCS (Pension) Rules, 1972. The said provisions read as under:-
9 (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. 69 (1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) xx xx xx xx
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:
9. They have also stated that the Ministry of Home Affairs, vide their order dated 09.04.2010, advised the Delhi Govt. to immediately withdraw the order regarding grant of non functional scale of Rs.8000-13500 (pre revised) to Grade I (DASS)/Sr. PA/Steno Gr.-I Officers and to make recovery, if any. The Govt. of NCT of Delhi has thereafter constituted a Committee to look into all aspects of grant of Non-functional scale of Rs.8000-13500 (pre-revised) to the Gr.-I (DASS)/Sr. PA/Steno Gr.-I to its Officers and adoption of replacement scales for those officials on implementation of 6th CPC. The report of the Committee is still awaited.
10. We have heard the learned counsel for the applicant, Shri N.K. Rahotgi and the learned counsel for the respondents, Shri Vijay Pandita. There is no denial of the fact that the applicant was placed under suspension on 09.03.2005 and it was not reviewed within the prescribed period of 90 days. Therefore, in terms of Sub Rules 6 and 7 of Rule 10 of the Rules 1965, his suspension has got automatically revoked w.e.f. 07.06.2005 and the Applicant has been deemed to have been reinstated in service with effect from the said date. As a result, he is entitled for all the consequential benefits of service till he retired on superannuation on 30.06.2011.
11. We, therefore, allow this OA and direct the respondents to give full pay and allowances to the applicant w.e.f. 07.06.2005 to the date of his retirement on 30.06.2011. As regards the scale of pay of Rs.8000-13500 is concerned, the applicant shall be given the same in terms of the respondents order dated 10.10.2007 with up-to-date arrears subject to the decision of the respondents regarding withdrawal of the same, as ordered by the Ministry of Home Affairs, vide their order dated 09.04.2010. As the respondents have not actually withdrawn the aforesaid benefits granted to his similarly placed persons and as admitted by them in their reply that they have only constituted a Committee to into all the aspects of the matter, the applicant shall be paid the aforesaid scale with up-to-date arrears after obtaining an undertaking from him that he will refund the excess amount drawn by him if the final decision of the respondents is to withdraw the said scale and the amount which was paid to other similarly placed persons is also directed to be recovered. In his failure to comply with his aforesaid undertaking, the respondents can recover the excess payment paid to him from the D.C.R.G. which has not been released to the Applicant so far. The respondents shall also release the withheld amount on account of leave encashment to the applicant immediately after re-fixing his pay and pensionery benefits as aforestated. As regards the delay in payments, the applicant will be entitled for the interest at the prevailing rate applicable to GPF from the due date(s) to the actual date of payment(s). The aforesaid directions shall be complied with at the earliest but in any case within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Manjulika Gautam ) ( G George Paracken )
Member (A) Member (J)
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