Central Administrative Tribunal - Allahabad
Daya Ram Singh Rawal vs Union Of India Decided On 22 April on 1 June, 2012
(RESERVED ON 12.04.2012) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD HONBLE MR.SANJEEV KAUSHIK , MEMBER (J). HONBLE MS. JAYATI CHANDRA, MEMBER (A). Original Application Number. 1371 OF 2006. ALLAHABAD this the 01st day of June, 2012. Daya Ram Singh Rawal, son of Shri Naval Singh Rawal, resident of R.K. Puram (near Golden Public School), Palaroad, Aligarh. Applicant. VE R S U S 1. Union of India through its Secretary, Department of Post, Ministry of Communication, Dak Bhawan, Sansad Marg, New Delhi. 2. Senior Superintendent of Post Offices, Aligarh Division, Aligarh. 3. Senior Post Master, Aligarh. ..Respondents Advocate for the applicant: Sri Avnish Tripathi Advocate for the Respondents : Sri Ram Pal Singh O R D E R
BY HONBLE MR. SANJEEV KAUSHIK, J.M. By means of the present original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has impugned the order dated 24.09.2004 passed by the respondent No. 2 placing the applicant under suspension (Annexure A-1). He further seeks quashing of order dated 23.01.2006 and 14.11.2006 passed by the respondent No. 3 whereby subsistence allowance of the applicant has been reduced without giving any reason (Annexure A-2). Still further prayed to direct the respondents to revoke the suspension of the applicant and reinstate him and pay admissible subsistence allowance w.e.f. January 2006 till December 2006.
2. The sole controversy involved in the present O.A is that the applicant was placed under deemed suspension vide order dated 24.09.2004 w.e.f. 03.09.2004 on the ground that the applicant was involved in the case of embezzlement of government money. An FIR was lodged on 03.07.2004 and a criminal case No. 272/2004 under section 409, 419, 420, 467, 468, 471 IPC was registered against the applicant. Since the applicant was retained in jail for more than 48 hours, he was placed under suspension. The applicant was released on bail on 22.09.2006 i.e. after more than two years. Thereafter the applicant moved an application on 28.10.2006 for revocation of suspension order, but the respondents neither passed any order on the representation nor reviewed the suspension. It is alleged that although the applicant was placed under suspension in contemplation of disciplinary proceeding but the charge sheet was served to him after releasing on bail in the year 2006. The respondents did not supply the relied upon documents to the applicant despite the request of the applicant vide application dated 28.10.2000. The applicant while in jail made representation to the respondent No. 2 on 08.03.2005 for admissible allowances during suspension. The applicant further made application dated 13.04.2006 and 24.04.2006 to the respondent No. 3 for payment of subsistence allowances to his wife, which was acceded to. Suddenly the respondents reduced the subsistence allowance in the month of December 2005 without showing any reason. After release on bail the applicant made representations dated 02.11.2006, 03.11.2006 and 20.11.2006 to the respondents but the respondents continued to pay reduced subsistence allowance. The applicant also preferred representation to the respondents for stay of departmental proceeding till the conclusion of criminal proceeding. As the respondents did not consider this request of the applicant, he filed O.A No. 1298/2006, and this Tribunal stayed the departmental proceedings vide order dated 27.11.2006. It is alleged that the suspension order of the applicant was never reviewed by the competent authority as provided under CCS (CCA) Rules 1965 but they intentionally neither revoked the suspension nor enhanced the subsistence allowance, which is illegal and arbitrary, therefore, the order of suspension is liable to be set aside and the applicant is entitled to get full salary for period when he was placed under suspension.
3. Pursuant to the notice the respondents filed detailed Counter Affidavit in which it is averred that the applicant was working as S.P.M, Ramghat Road from 29.07.2000 to 13.04.2004. After completion of his tenure, he was transferred to Dodhpur Sub Post Office as S.P.M. He joined on 14.04.2004 and worked there for only two days. Thereafter he proceeds on leave from 17.04.2004 to 19.04.2004. After expiry of leave period, he did not join his duties. He was arrested on 16.06.2004 in a criminal case and remain in police custody for more than 48 hours, therefore, he was placed under suspension by order dated 19.06.2004 in terms of rule 2 of Rule 10 of CCS (CCA) Rules 1965. Revised order of suspension dated 19.06.2004 was passed on 29.06.2004. After his arrest certain complaints were received against the applicant. The matter was inquired into and it was prima facie found that the applicant has misappropriated the government money amounting to Rs. 32,75,000. On the basis of preliminary inquiry FIR was lodged against the applicant under section 409/419/420/467/468/471 IPC on 03.07.2004. He was also preceded under CCS (CCA) Rules 1965 by issuing charge sheet. Inquiry Officer was appointed on 22.09.2004. But as the applicant was in jail the inquiry could not be completed. However, the charge sheet was served upon the applicant on 10.09.2004 in jail. The applicant denied the charge leveled against him by his reply dated 22.09.2004. After release on bail the Inquiry Officer informed the applicant about the date of inquiry but he did not join the proceeding. Rather he approached this Tribunal by filing O.A No. 1298/06 seeking quashing of the charge sheet. It is submitted that from time to time his suspension order was reviewed according to the provisions of 1965 Rules. Vide order dated 23.01.2006 his subsistence allowances was reduced by 30% as he was not cooperating in the inquiry proceeding (Annexure CA-1).
4. We have heard Shri A. Tripathi, counsel for the applicant and Shri Ram Pal Singh, counsel for the respondents.
5. Learned counsel for the applicant vehemently argued that the impugned order of suspension is illegal, arbitrary and unconstitutional as the applicant was placed under suspension in contemplation of disciplinary proceeding whereas the respondents have not initiated any departmental proceeding, therefore, the order of suspension be set aside. He further urged that the order dated 23.01.2006 reducing the subsistence allowance of the applicant by 30% is also illegal as the applicant in no way was guilty of prolonging the disciplinary proceeding.
6. On the other hand Shri R.P. Singh, counsel for respondents argued that the applicant initially was placed under suspension as he was arrested and was in police custody for more than 48 hours, therefore, in terms of rule 10(2) of 1965 Rules the order was passed placing the applicant under suspension on 19.06.2004. The said order was subsequently reviewed from time to time. Thereafter on certain complaints received against the applicant, a preliminary inquiry was conducted in which he was found guilty of misappropriation of government money amounting to Rs. 32,75,000/-. Accordingly an FIR was lodged against the applicant on 03.07.2004 and simultaneously a charge sheet was also issued. As the applicant did not cooperate in the departmental proceeding the competent authority passed the order on 23.01.2006 reducing his subsistence allowance by 30%.
7. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the respective parties.
8. The applicant was initially placed under suspension on 19.06.2004 in terms of Rule 10(2) of 1965 Rules as the applicant was arrested on 16.06.2004 and he remain in police custody for more than 48 hours. Subsequent to that certain complaints were received against the applicant and the matter was inquired into. In the preliminary inquiry the applicant was found guilty of fraud and misappropriation of government money amounting to Rs. 32,75000/- On the basis of preliminary inquiry a criminal case No. 272/04 was registered on 03.07.2004 under section 409, 419, 420, 467, 468, 471 IPC in Police Station Civil Lines. He was also preceded departmentally and was served with a charge sheet on 03.09.2004. Inquiry Officer was appointed but the applicant did not cooperate in the inquiry proceeding despite the fact that he was released on bail.
9. The sole question arises for our determination as to whether the first suspension order is to be reviewed after 90 days or not in terms of Rule 10(6) and (7) of CCS (CCA) Rules 1965. The applicant was placed under suspension by order dated 19.06.2004 w.e.f. 16.06.2004 in terms of Rule 10(2) of 1965 Rules as the applicant was detained in policy custody for more than 48 hours. Subsequent to the order dated 19.06.2004, the applicant was again placed under suspension by order dated 24.09.2004 on contemplation of inquiry. The charge sheet was served upon the applicant when he was in jail. Simultaneously on the basis of preliminary inquiry a criminal case No. 272/2004 was registered on 03.07.2004 under section 409, 419, 420, 467, 468, 471 IPC in Police Station, Civil Lines. The applicant remained in judicial custody till 22.09.2006 when he was released on bail. After his released, the applicant filed application for revocation of his suspension order and to grant admissible subsistence allowances, which have wrongly been ordered to be paid @ 30% on the ground of prolonged suspension and non-cooperation in the departmental proceeding.
10. It is the case of the respondents that the suspension of the applicant was periodically reviewed by the Review Committee in terms of 1965 Rules. The contention of the learned counsel for the applicant that the order of suspension dated 19.06.2004 was not reviewed within 90 days, therefore, the same is liable to be set aside being nonest in the eyes of law. Rule 10 of 1965 Rules reads as under: -
10. Suspension (1) 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 a Government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
EXPLANATION - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders :
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
(5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.
(b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
(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 :
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 suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count 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.
11. Firstly, the applicant was place under deemed suspension under rule 10(2) of the 1965 rules on 19.6.2004 w.e.f 16.6.2004. Thereafter fresh order was passed on 24.09.2004 ordering that he will continue to remain under suspension even he had been bailed out till revocation of second suspension order. The order read as under: -
Whereas a disciplinary proceeding under Rule 14 of CCS (CCA) Rules 1965 is pending since 03.09.2004 against Shri D.S. Rawal SPM Dodhpur who is in Aligarh Jail and under deemed suspension since 16.06.2004.
In the light of GI, DP AR OM No. 109/3/80-AVD I dated 21.07.1980. It is further order that the official should remain under suspension in connection with the case of embezzlement of Rs. 26,60,000/- also.
It is further ordered that during the period that this order shall remain in force the H/Q of Shri D.S. Rawal SPM, Dodhpur should be Aligarh and the said Shri D.S. Rawal SPM, Dodhpur not leave the H/Q without obtaining previous permission of the undersigned.
It is further order that when the said Sh. Rawal is bailed out, his deemed suspension will be subject to this second suspension i.e. the official will remain under suspension even if he is bailed out till revocation of this second suspension. Therefore the first order of suspension dated 19.6.2004, which was rendered archaic by fresh order dated 24.9.2004. This order was reviewed on 28.10.2004, so the first review was carried out within 90 days as per the directive of rule 10(6) of the 1965 rules and thereafter on 18.04.2005. The following facts were noticed: -
Reviewed suspension case of Sh. D.S. Rawal (under suspension) SPM, Dodhpur Aligarh.
Shri D.S Rawal was deemed to have been placed under suspension vide this office memo No. B/DS Rawal dated 19.06.04 w.e.f. 16.06.2004.
He was again placed under suspension vide this office Memo No. F IV/1/04-05 dated 24.09.2004.
The official is directly involved in Ramghat Road and Dodhpur PO fraud case as he is the main offender. He was charge sheeted under Rule 14 of CCS (CCA) Rules 1965 vide this office Memo No. F IV/1/04-05 dated 03.09.2004. IO/PO were appointed vide this office Memo No. even dated 27.09.2004, but the enquiry is held up as the official is still in Jail since 16.06.2004. He will continue to remain under Suspension.
His Suspension case was last reviewed on 28.10.2004 by the reviewing committee. Thereafter it was periodically reviewed by the Review Committee.
12. From the above facts it is clear that the respondents have carried out the review as per rule 10(7) of 1965 Rules. Lastly it was reviewed on 13.04.2012, which reads as under: -
With reference to above cited letter it is intimated that the said Sh. D.S. Rawal was placed under deemed suspension vide this office memo no. B/D.S. Rawal dated 16.06.2004 as he was detained in Police Custody exceeding 48 hrs. During his detention period the fraud committed by the said Sh D.S. Rawal was detected so he was charge sheeted under Rule 14 of CCS (CCA) Rules 1965. In the said embezzlement case the official was placed under second suspension vide this office memo no. F IV/1/04-05 dated 03.09.2004.
The suspension case of the official has been reviewed by Review Committee regularly as per required by Rules. The dates of review are as under: -
28.10.04, 18.04.05, 25.10.05, 19.06.06, 08.12.06, 17.06.07, 16.01.08, 14.07.08, 08.12.08, 22.05.09, 16.11.09, 26.05.10, 19.11.10, 06.05.11, 24.10.11. As per proviso to rule 10(7) in case of deemed suspension under sub-rule (2), if the government servant continues to be under suspension at the time of completion of 90 days of suspension and the ninety dayss period in such case will count from the date the concerned employee is released from detention or the date of his intimation to his appointing authority. In case in hand he was release on bail on 22.9.2006, his suspension was reviewed on 8.12.2006 that is with in 90 days from his release. Therefore from perusal of the above it is clear that there is no violation as contended by the learned counsel for the applicant. Therefore, the argument raised that the suspension of the applicant has not been reviewed periodically, is rejected being devoid of merit.
13. Our view find support from the judgment of the full bench of Principal bench in case of Sri S.K. Srivastava vs Union Of India decided on 22 April, 2009. The Honble full bench posed following question:-
The question, inter alia, arose while considering OA No.527/2008, whether under sub-rules 6 and 7 of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the review of the order of suspension subsequent to the first review has to be done within 90 days from the date of first review or it should be done within the extended period, which could be up to 180 days. The question arose because a Coordinate Bench of this Tribunal in OA No.1776/2006, Swetabh Suman Vs. Union of India and others had held that the suspension has to be reviewed after 90 days even after the review of suspension for the first, second and third etc. times after the original order of suspension. The Division Bench hearing the OA No.527/2008 differed from the above mentioned interpretation of Rule 10. In view of this difference in opinion, the matter was referred to a Larger Bench for a proper interpretation of the provisions of sub-rules 6 & 7 of Rule 10 of CCS (CCA) Rules, 1965. Which was answered as under:-
10. We find no substance in this argument. The OM adverted to above would have no application whatsoever in deciding the issue before us. The substantive amendment is that in cases of deemed suspension under sub-rule (2) of Rule 5 (i.e. when a person is detained in custody for the period exceeding 48 hours) and when such detention continues, the ninety days period would count from the date of release from detention. The order of suspension passed under Rule 5 (2) need not be reviewed till the person is under detention. The other amendment relates to the addition of the word effective before the date in rule 10 (6) in the clause ninety days from the date of order of suspension. It would now read ninety days from the effective date of order of suspension. The reason for this is that in the deemed suspension the date of order of suspension may be much later than the deemed date of suspension. Therefore, this has no application to the case in hand. The third amendment only deletes the clause notwithstanding anything contained in sub-rule 5 (a) because sub rule 5(a) has been amended to read as above. The clause Subject to the provision contained in sub-rule (7) has been pre-fixed to the existing rule 5 (a) which made notwithstanding anything contained in sub-rule 5 (a) in Rule 7 redundant. The amendment introduced by this OM has nothing to do with the case in hand.
11. Strictly speaking there is nothing to interpret in Rule 10 because it is free from any ambiguity and is very clear. A total reading of Rule 10 would clearly reveal that suspension made under Rule 10(1) has to be reviewed by the competent authority before expiry of 90 days from the date of order of suspension. The competent authority, on the recommendations of the Review Committee may extend the period of suspension up to 180 days at a time. The second, third, fourth etc. reviews shall be made before the extended period of suspension expires. If the extended period of suspension is for 180 days, the review could be made up to the 179th day and so on and so forth. The purport of the rule is that the competent authority has to review the order of suspension under Rule 10 (1) within 90 days of the original order of suspension, after which the suspension will become invalid beyond the period of 90 days. Second, the competent authority could review the order of suspension before the period of 90 days from the date of original suspension also. On the first review after the original order of suspension, the suspension could be extended on the recommendation of the Review Committee for a period up to 180 days at a time. The period of suspension has to be reviewed again on the recommendation of the Review Committee before the expiry of the extended period of suspension which need not be 90 days. If the suspension is extended for say 60 days, the review would have to be done before the expiry of 60 days. If, as another example, the suspension is extended for 180 days, the review has to be before the expiry of 180 days. In case of deemed suspension, however, it would not be necessary to review the order of suspension till the employee under suspension is under detention. In such cases 90 days period for review would be counted from the date the Government servant detained in custody is released from detention.
14. The second contention raised by the applicant that for no fault of his the respondents have penalized him by reducing subsistence allowance to 30% on the ground that the applicant did not cooperate in the inquiry proceeding. It is to be noted here that the applicant remained in jail till 02.09.2006, therefore, he cannot be said to be guilty of non-cooperating in the inquiry proceeding. Therefore, we hold that the reduction of subsistence allowance @ 30% from the date of arrest till 23.01.2006 is not sustainable. Accordingly same is held to be illegal. The applicant is entitled for admissible subsistence allowance till 23.01.2006 as his non-participation in the inquiry he cannot be attributed to any fault on his part and, therefore, he cannot be held responsible for prolonged inquiry proceeding.
14. For the reasons above, the O.A is allowed in part. No costs.
MEMBER- A. MEMBER- J. /Anand/ ?? ?? ?? ?? 15 O.A No. 1371/2006