Gujarat High Court
Dhavalkumar J Solanki S/O Jerambhai L ... vs Chief Postmaster General on 28 February, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18871 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHAVALKUMAR J SOLANKI S/O JERAMBHAI L SOLANKI
Versus
CHIEF POSTMASTER GENERAL & 3 other(s)
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Appearance:
MR JOY MATHEW FOR RONITH JOY(9560) for the Petitioner(s) No. 1
MR. PARTH H BHATT(6381) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 28/02/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) Page 1 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023
1. By way of this petition under Article 226 & 227 of the Constitution of India, the petitioner - original applicant before the Central Administrative Tribunal (hereinafter referred to as "the Tribunal") has challenged the order dated 09/11/2021 rendered by the Tribunal in OA No.4 of 2020, whereby the Tribunal has rejected the application filed by the petitioner.
2. Heard learned advocate Mr.Joy Mathew for learned advocate Mr.Ronith Joy for the petitioner and learned Standing Counsel of Central Government Mr.Parth Bhatt for respondent No.1.
3. Learned advocate for the petitioner submitted that the petitioner joined the respondent Department as Postal Assistant on 07/02/2011. On 22/03/2019, he was placed under suspension. Thereafter, the departmental inquiry has been initiated against the petitioner which is still pending. It is submitted that on 22/03/2019 the petitioner was for the first time placed under suspension and thereafter, vide communication dated 26/06/2019 the respondent Department extended the period of suspension from 17/06/2019 to 16/12/2019. Once again, the same was extended from Page 2 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 17/12/2019 to 13/06/2020. The petitioner filed OA No.4 of 2020 before the Tribunal wherein, the petitioner had prayed that the Memo dated 22/03/2019 whereby, the petitioner was placed under suspension and further extension of the period of suspension be quashed and set aside and thereby, the respondent Department be directed to reinstate the petitioner in service with all consequential benefits. The petitioner also prayed that the respondents be directed to pay difference of 25% subsistence allowance from 22/03/2019 till 21/09/2019. 3.1 Learned advocate submitted that by way of impugned order dated 09/11/2021, the Tribunal has dismissed the application filed by the petitioner and therefore, the petitioner has filed the present petition.
3.2 Learned advocate for the petitioner has, at the outset, referred the order of suspension issued by the respondent Department on 22/03/2019, copy of which is placed on record at page 48 of the compilation. It is submitted that the petitioner was placed under suspension as per Rule 10(1) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as "the Rules, 1965"). At Page 3 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 this stage, learned advocate for the petitioner submitted that as per Rule 10(6) of the Rules, 1965 an order of suspension shall be reviewed by the authority which is competent to modify or revoke the suspension, before the expiry of 90 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. 3.3 At this stage, learned advocate for the petitioner has relied upon the document which is produced on record at page 49 of the compilation. Learned advocate submitted that vide communication dated 26/06/2019, the competent authority has informed the petitioner that as per the provision of Rule 13 of Chapter - 2 of the Rules, 1965 the case of the petitioner has been reviewed by the Review Committee for the payment of subsistence allowance review of suspension. It is submitted that the review was made after a period of 90 days and therefore, the said review was not as per the provisions contained in Rule 10(6) of the Rules, 1965. Learned advocate therefore, urged that the Tribunal ought to have granted the reliefs as prayed for by the petitioner on the said ground. Page 4 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023
C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 3.4 At this stage, learned advocate Mr.Mathew has placed reliance upon the decision rendered by the Kerala High Court in similar type of matter, copy of which is placed on record at page 164 of the compilation. Learned advocate has referred and relied upon paragraph nos.8, 10 and 11 of the said decision of the Kerala High Court.
3.5 After referring to the same, it is submitted that as per the said decision, the Review Committee of the respondent Department was required to review the case of the petitioner for extension of the suspension period for a period of 90 days, as well as, the competent authority was required to extend the period of suspension within the said period, however, in the present case, the competent authority of the respondent Department has failed to extend the period of suspension within stipulated time and therefore, only on this ground, the present petition is required to be allowed.
4. On the other hand, learned Standing Counsel Mr.Parth Bhatt for respondent No.1 has vehemently opposed this petition. Mr.Bhatt has referred to the averments made in the affidavit-in-reply filed on behalf of respondent Nos.1, 2 and 3 Page 5 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 and thereafter, referred to the documents produced on record at page 149 of the compilation. Learned counsel Mr.Bhatt has submitted that on 17/06/2019, the meeting of the Review Committee was held in which it was decided to extend the period of suspension of the petitioner. It is submitted that as per the decision taken in the meeting, after reviewing the whole situation, the Committee has decided to continue the suspension of the petitioner for a further period of 180 days. It is submitted that the said review was made prior to expiry of the period of 90 days from 22/03/2019 and therefore, the decision was already taken by the Review Committee as per Rule 10(6) of the Rules, 1965 and thereby, no error is committed by the respondent Department. At this stage, it is pointed out by the learned counsel Mr.Bhatt that the said aspect was already communicated to the petitioner by the competent authority vide communication dated 26/06/2019. Merely because the said communication was made after a period of 90 days, does not mean that the decision was not taken by the Review Committee within the stipulated period. Learned counsel Mr.Bhatt therefore, urged that the Tribunal has not committed error while dismissing the application submitted by the petitioner.
Page 6 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 4.1 Learned counsel Mr.Bhatt would thereafter submit that the petitioner has for the first time taken the contention in the rejoinder filed by him before this Court that the Disciplinary Authority / competent authority has not taken the decision to extend the period of suspension within stipulated time. Thus, when the said contention has been taken for the first time in the rejoinder, the Tribunal has not committed any error by not examining the said aspect while dismissing the application filed by the petitioner.
4.2 At this stage, learned counsel Mr.Bhatt also contended that the Disciplinary Authority is part of the Review Committee and therefore, when the Review Committee has taken the decision to extend the period of suspension, it was not necessary for the Disciplinary Authority to once again inform the petitioner that suspension period has been extended by the Review Committee. Learned counsel alternatively submitted that the matter be remitted back to the Tribunal as certain contentions are for the first time taken by the petitioner before this Court.
Page 7 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023
C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023
5. We have considered the submissions canvassed by the learned advocate appearing for the parties. We have also perused the material placed on record. It would emerge from the record that petitioner was placed under suspension vide communication dated 22/03/2019, copy of which is placed on record at page 48 of the compilation. Thereafter, the Disciplinary Authority communicated to the petitioner on 26/06/2019 and in the said communication, the Disciplinary Authority has stated as under :
"Shri D.J.Solanki, PA Surendranagar HO has been placed under suspension w.e.f. 22/03/2019 A/N. As per provision of Rule-13 of Chapter - 2 of CCS (CCA) Rules, 1965 has case has been reviewed by the review committee for the payment of subsistence allowance review of suspension.
The Disciplinary proceeding under Rule-14 of CCS (CCA) Rules, 1965 has been initiated against him and the case is under progress. Therefore, it is decided that there is no need to vary the subsistence allowance and hence, "STATUS-QUO" be maintained for the period from 17/06/2019 to 16/12/2019 or finalization of disciplinary case, whichever is earlier."
6. At this stage, this Court would like to refer to the provision contained in Rule 10(6) of the Rules, 1965, which provides as under :
"Rule 10(6). An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which Page 8 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 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 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. From the aforesaid provision it can be said that the order of suspension made under the Rules 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 constituted for the purpose and pass orders either extending or revoking the suspension. Thus, on the basis of recommendation made by the Review Committee, the competent authority was required to extend the period fo suspension within a period of 90 days.
8. Now, it is the case of the respondent Department that the meeting of the Review Committee was held on 17/06/2019 i.e. within a period of 90 days and in the said meeting, the case of the petitioner was reviewed and it was decided to continue the suspension of the petitioner for a period of 180 days. The decision was also taken with regard to the subsistence Page 9 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 allowance paid to the petitioner. It is contended by the learned counsel for the respondent Department that the Disciplinary Authority / competent authority was one of the members of the Review Committee and therefore, he was aware about the decision which was taken in the meeting of the Review Committee. Now, it is the case of the respondent Department that the Disciplinary Authority pursuance to the decision taken in the meeting by the Review Committee has merely communicated on 26/06/2019, though after a period of 90 days, and informed the petitioner that there is no need to vary the subsistence allowance and status-quo is to be maintained for a period from 17/06/2019 to 16/12/2019. Learned counsel Mr.Bhatt, during the course of hearing, has, for the first time made submission before this Court that meaning of status-quo means period of suspension is to be extended, however, the respondent authority has not explained the same while filing the affidavit-in-reply in the present proceedings.
9. This Court would like to examine the communication dated 26/06/2019. If the said communication is carefully examined, it reveals that the Disciplinary Authority has nowhere referred the decision taken by the Review Committee Page 10 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 in its meeting held on 17/06/2019 that the Committee has decided to extend the period of suspension for a period of 90 days. On the contrary, it has referred in the said communication that there is no need to vary the subsistence allowance. At this stage, this Court would like to refer the communication dated 26/06/2019 made by the Assistance Director (Staff & Vigilance) to the Disciplinary Authority i.e. Superintendent of Post Office, Surendranagar Division, copy of which is placed on record at page 90 of the compilation. In the said communication, the Assistant Director has specifically informed the Disciplinary Authority to communicate the decision with regard to review of suspension to the officials concerned i.e. the petitioner.
10. At this stage, this court would also like to refer to the decision rendered by the Kerala High Court in case of Senior Superintendent of Post Offices and others Vs. B. Ramachandran, S/O.Balakrishnan Nair (Under Suspension) decided on 08/04/2016, wherein the Kerala High Court has observed in paragraphs 8, 9 and 11 as under :
"8. The contention of the petitioners is that, since the Review Committee had met and decided to continue the suspension within Page 11 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 the period of 90 days stipulated by the Rules, it was sufficient that, the order extending the suspension was passed at a later point of time, even after the expiry of the period of 90 days that has been stipulated. In the present case it is pointed out that, the Review Committee had decided on 18.08.2006 to extend the period of suspension, but the formal order extending the suspension was passed only on 13.10.2006. The delay in passing the formal order would not affect the validity of the extension of the order of suspension in any manner, it is contended by the petitioners.
9. However, we are not prepared to accept the above interpretation that is attempted to be placed on the Rule. As already noticed above, the role of the Review Committee constituted under the Rule is only to recommend whether the suspension was to be continued or not. The learned Assistant Solicitor General of India has put forward a contention that, the authority competent to suspend the employee was also a member of the Review Committee. However, we are not satisfied that the presence of the authority competent to suspend the employee on the Review Committee would improve matters in any manner, as the role of the Review Committee is only recommendatory in nature. As per the Rule, the duty to review the order of suspension within the period of 90 days that is stipulated and to pass orders either extending or revoking the suspension on the basis of the recommendation of the Review Committee, is cast on the authority competent to suspend the employee. Therefore, an omission on the part of the said authority to pass orders within the time limit stipulated would nullify the order of suspension. The above consequence is clearly set out in Rule 10(7), wherein it has been specifically provided that the order of suspension "shall not be valid after a period of 90 days unless it is extended after review, for a further period before the expiry of 90 days".
11. We notice that, we are supported in our above understanding of Rule 10(6) and (7) of the Rules by the decision of the Apex Court in Union of India and Others v. Dipak Mali [2010(2) SCC 222]. Altamas Kabir, J. (as he then was) has after considering the Rules, held as follows in paragraph 10 thereof:
"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 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-Page 12 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023
C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 rules (6) and (7) of R.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."
The result of the above discussion therefore is that, unless an order of suspension is reviewed by the authority competent to suspend an employee, on the recommendation of the Review Committee constituted for the purpose and unless orders extending the period of suspension are passed within the period of 90 days stipulated therein, the order of suspension would not be valid. In other words, both the stipulations, namely, review of the suspension order by the competent authority as well as passing of the order either extending or revoking the period of suspension, are necessary to be satisfied within the period of 90 days stipulated by Rule 10(6)."
11. Thus, from the aforesaid decision rendered by the Kerala High Court, it is clear that both the stipulations namely, review of the suspension of the order by the competent authority as well as passing of the order either extending or revoking the period of suspension, are necessary to be satisfied within the period of 90 days stipulated by Rule 10(6) of the Rules, 1965.
12. In the present case as discussed hereinabove, though the decision was taken by the Review Committee in the meeting held on 17/06/2019 to extend the period of suspension, the same was not communicated by the Disciplinary Authority within the stipulated time, and even after a period of 90 days Page 13 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 when the communication was made by the Disciplinary Authority, there was no reference with regard to the decision taken in the meeting by the Review Committee to extend the period of suspension. On the contrary, it has been observed that the case of the petitioner has been reviewed by the Review Committee for payment of subsistence allowance review of suspension.
13. The petitioner has specifically taken the contention before the Tribunal in ground no.(F) that as per the law, the Department was required to review the suspension order dated 22/03/2019 within 90 days of its issuance. In the present case, admittedly, the Department reviewed the same on 26/06/2019.
14. Thus, in the facts of the present case, we are not inclined to remit the matter back to the Tribunal as requested by the learned counsel Mr.Bhatt for the respondent Department.
15. Looking to the overall facts and circumstances of the present case, we are of the view that the impugned order passed by the Tribunal is required to be quashed and set aside. Accordingly, the present petition is hereby allowed. The Page 14 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023 C/SCA/18871/2021 JUDGMENT DATED: 28/02/2023 impugned order dated 09/11/2021 rendered by the Tribunal in OA No.4 of 2020 is quashed and set aside. As the period of suspension is not validly extended within the stipulated time by the competent authority, the respondents are directed to reinstate the petitioner in service on his original post and shall permit him to discharge his duties with all consequential benefits to follow. Rule is made absolute.
(VIPUL M. PANCHOLI, J) (HEMANT M. PRACHCHHAK,J) Dolly Page 15 of 15 Downloaded on : Tue Mar 07 20:30:34 IST 2023