Gujarat High Court
Rakesh R Gandhi vs State Of Gujarat on 1 April, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/1042/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1042 of 2014
With
CIVIL APPLICATION NO. 13061 of 2014
In
SPECIAL CIVIL APPLICATION NO. 1042 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes, except
para 1.1 to
8
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
================================================================
RAKESH R GANDHI....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
================================================================
Appearance:
MR YATIN OZA SENIOR COUNSEL WITH MR HJ DHOLAKIA, ADVOCATE
for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Page 1
C/SCA/1042/2014 CAV JUDGMENT
Date : 1/04/2015
CAV JUDGMENT
1. In present petition under Article 226, 14, 16 and 21 of Constitution of India the petitioner has prayed, inter alia, that:-
"17. (B) Your Lordships may be pleased to issue a writ of Certiorari or any other appropriate writ, order and / or direction by quashing and setting aside the impugned order of suspension dated 19.12.2013 passed by the respondent and further be pleased to direct the respondent to reinstate the petitioner with all consequential benefits, monitory and non- monitory, inclusive of the full back wages as if no order of suspension has ever been passed.
(C) Your Lordships may be pleased to hold and declare Rules 5(2)(a) of Gujarat State Service Rules, 1971 as ultra virus to the constitution.
(D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order of suspension dated 19.12.2013 passed by the respondent authority."
1.1 Before proceeding further it is relevant to mention that Civil Application No. 13061 of 2014 was listed in the daily cause list dated 9.1.2015. During the hearing it was jointly submitted by learned advocates for the concerned parties that the said Civil Application No. 13061 of 2014 and the main petition involve and raise similar issues and even for considering the relief prayed for in the Civil Application very same issues, as are raised in the petition, Page 2 C/SCA/1042/2014 CAV JUDGMENT will have to be considered and decided and that therefore both the matters may be heard together and appropriate order may be passed in the Civil Application as well as main petition. Therefore, following order was passed in Civil Application on 9.1.2015:-
"Today, learned AGP has tendered further affidavit dated 9.1.2015, copy whereof is served to learned advocate for the petitioner. Learned advocate for the petitioner has received copy of the affidavit. Therefore, affidavit is taken on record.
2. Mr. Oza, learned Senior Counsel for the petitioner, and Mr. Gautam, learned AGP, have argued the main matter finally and learned advocates have been heard with regard to the merits of the main matter. The submissions have been made with understanding that the matter is argued finally. In that view of the matter, order on present application is not passed at this stage and appropriate orders will be passed alongwith the order in the main petition. Kept for orders."
1.2 Accordingly, in view of the aforesaid request and stipulation by learned advocates and in light of the said order both the matters i.e. the Civil Application and main petitioner have been heard together (i.e. main petition is also heard with this application) and learned advocates for petitioner and respondents have made appropriate submissions with clarity, and understanding that both the matters are to be heard and decided finally by this common judgment. Therefore both the matters are heard finally in view of the above mentioned submission and Page 3 C/SCA/1042/2014 CAV JUDGMENT request by learned advocates.
2. So far as the relief prayed for in paragraph No.17(C) i.e. prayer that Rule 5(2)(a) of Gujarat State Service Rules, 1971 be declared as ultra virus is concerned, it is necessary to take into account the order dated 4.2.2014 passed by Division Bench wherein it is recorded that:-
"At the very outset, Mr. Yatin Oza, the learned Sr. Advocate appearing on behalf of the petitioner submits that at this stage, he does not press the prayer of declaration of Rule 5[2][A] of the Gujarat State Service Rules, 1971 as ultra vires the Constitution of India and instead of that, he wants to press the prayer 17[B] of the application.
In such circumstances, let this application be placed tomorrow before the learned Single Judge having determination over the prayer 17[B] of the application.
It is needless to mention that we have not gone into the merit of prayer 17[C] of this application."
2.1 In view of the said order the only relief which requires to be considered is the relief prayed for in paragraph No. 17 (B). Even at the time of hearing of this petition learned Senior Counsel for the petitioner again stipulated and declared that the petitioner does not press the relief prayed for in paragraph No. 17(C) i.e. the petitioner does not press the prayer for declaration of Rule (5)(A) of Gujarat Civil Services Rules 1971 as ultra virus to the constitution and he seeks relief prayed for in paragraph No. 17(B). Thus, the challenge against said Rule on the Page 4 C/SCA/1042/2014 CAV JUDGMENT ground which is ultra virus to the constitution is dropped and waived. Therefore said contention is not required to be considered.
3. During pendency of main petition being SCA No. 13061 of 2014, the petitioner preferred a Civil Application being Civil Application No. 13061 of 2014 and prayed, inter alia, that:-
"4(B) Your Lordships may be pleased to fix any early date convenient to this Hon'ble Court for final hearing of the present Special Civil Application.
(C) Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order of suspension dated 19.12.2013 passed by the respondent authority till the pendency of the Special Civil Application No. 1042 of 2014.
(D) Your Lordships may be pleased to direct the respondent authority to pay the subsistence amount of salary for the period of suspension from the month of December 2013."
4. Considering the submissions made by learned Senior Counsel for the applicant and learned AGP earlier referred order was passed on 9.1.2015.
5. During the hearing of the petition the petitioner has filed additional affidavit dated 8.1.2015 and has placed on record the chargesheet filed against the petitioner in the Criminal Proceedings which are instituted and are pending in trial Court against him. In the said affidavit the Page 5 C/SCA/1042/2014 CAV JUDGMENT petitioner has also declared and asserted that any departmental proceedings are not instituted against the petitioner and he is not visited with any show-cause notice or chargesheet for departmental action.
6. The respondent no.1 has also filed further affidavit clarifying that the petitioner is right in claiming that though he is placed under suspension, suspension allowance is not paid. The respondents have, by the said affidavit, explained the reasons for which suspension allowance is not paid to the petitioner.
7. By the said affidavit the respondent no.1 has also claimed that the competent authority is contemplating to initiate departmental proceedings and to issue chargesheet for that purpose.
8. Be that as it may, it is undisputed fact that till the date of hearing of present petition any chargesheet for departmental action is not issued against the petitioner.
9. So far as relevant facts are concerned, the petitioner has averred and stated that:-
Page 6 C/SCA/1042/2014 CAV JUDGMENT "7. The petitioner submits that as a R.T.O. Agent Shri Samir Babubhai Patel had to pay taxes and therefore deliberately, he came to deposit the amount of taxes after the cash collecting hours with the team of Anti Corruption Bureau. It is submitted that upon the said incidence, one F.I.R. came to be lodged against present petitioner under section 7, 13 (1)(D) and 13 (2) of the Prevention of Corruption Act, 1988 before A.C.B. Police Station Amreli being C.R. No. I- 02/2013 dated 20/09/2013.
8. The petitioner submits that on the basis of the complaint, the petitioner was arrested on 20/09/2013 and was released on bail dated 26/09/2013. It is further submitted that when the present petitioner was produced before the concern court by A.C.B., remand was sought for but the said request was turned down by learned Sessions court on 20/09/2013. It is further submitted that on 21/O9/2013 a request was made on behalf of A.C.B that they want to approach Hon'ble High Court of Gujarat against the order of remand and hence the bail matter was kept on 26/ 09/ 2013. It is further submitted that upon the said complaint, service of the petitioner has been put under the suspension by way of an order dated 19/12/2013, which was served upon the petitioner at his residence on 23/09/2013 by the officers of the respondent authority.
9. The petitioner submits that the impugned suspension order has been passed on the ground that if at all service of the petitioner is to be continued then petitioner may temper with the evidences and may win over the witnesses and therefore in light of Rule 5 (2) (a) of Gujarat State Service (Discipline and Appeal) Rules, 1971, if any person who is detained for more than 48 hours then the period of suspension will be considered as deemed suspension from the date of his arrest.
10. The petitioner states and submits that order of suspension dated 19/12/2013 is dehors to the guidelines issued by respondent authority's own various Government Resolutions which say that suspension or deemed suspension period shall be reviewed in 90 days and after reviewing, the authority can either end the period of deemed suspension or can extend the same but cannot pass a fresh suspension order wherein in the case of present petitioner a fresh suspension order has been passed."
10. The respondents have opposed the petition by filing reply affidavit dated 27.3.2014. While disputing and denying the petitioner's allegation and contentions Page 7 C/SCA/1042/2014 CAV JUDGMENT deponents / respondents have averred and stated that:-
"6. It is respectfully submitted that the deponent begs to submit the details of the petitioner and the same as are verified from record may be treated to be factual details. The petitioner came to be arrested by the Anti Corruption Bureau on 19.09.2013. The petitioner was released on bail on 26.09.2013. The petitioner has therefore remained in custody for more than 48 hours.
7. It is respectfully submitted that as far as the order dated 19.12.2013 is concerned the deponent begs to submit that the said order is entirely in consonance with Rule 5 of the Gujarat Civil Service (Discipline & Appeal) Rules, 1971. A copy of the relevant rules being Rule 5 paragraph no.2 (suspension) is annexed herewith and marked as ANNEXURE R-I. Further deponent submits that the petitioner was released on bail on 26/9/2013. The Department vide order dated 19/12/2013 has deem suspended the petitioner from 20/9/2013 to 26/9/2013 i.e. the custody period and suspended the petitioner from the date of issue of order i.e 19/12/2013. As per the provision the review of suspension period is to be done within 90 (ninety)days from 19/12/2013, Thus the Department has reviewed the case and extended the suspension period of Shri. Gandhi vide order dated 14.3.2014. (which is within 90 days). Copy of order dated 14.3.2014 is annexed herewith and marked as Annexure R-III
8. It is respectfully submitted that on going through the said rule Clause-b of sub-rule 1 of Rule 5 read with clause-a of sub- rule 2 of Rule 5 clearly mentions that when the government employee is involved in a Criminal offence pertaining to mora1 turpitude and if he is detained in custody for period exceeding 48 hours the first clause clearly contemplates that the petitioner since is involved in an offence in moral turpitude shall be placed under suspension and considering the later rule since the petitioner was detained he shall be deemed to have been placed under suspension.
10. It is respectfully submitted that as far as the order impugned is concerned and the peculiar fact in the Petition wherein the Petitioner has applied for earned leave for the period from 1.10.2013 to 31.12.2013 vide his application dated 01.10.2013. The petitioner went for leave from the date of said application. It is respectfully stated for the period of 26.9.2013 to 30.9.2013 is concerned, he applied for casual leave for the said period. However, the said application was came to be rejected, the petitioner had applied for said period for earn leave vide dated 7.2.2014. It is pertinent to note that the Page 8 C/SCA/1042/2014 CAV JUDGMENT application of Petitioner dated 23.12.2013 clearly shows that the petitioner was aware about the fact that he shall be placed under suspension in view of the fact that the petitioner admitted that the petitioner was on leave for the said period and he had assumed that he was under suspension. Annexed herewith and marked as ANNEXURE-R-II is the copy of the application dated 21.12.2013.
11. It is respectfully submitted that the order of suspension in present petition is concerned, the said order clearly mentions that under the Gujarat Civil Service (Discipline & Appeal) Rules, 1971. The petitioner was placed under suspension with immediate effect. The petitioner by way of present petition is trying to misguide and create prejudice of his own by placing reliance upon the rules and that too in an incorrect manner. The petitioner himself has admitted to have gone on leave admitting that he assumed to be under suspension. The answering respondent was justified in passing an order placing the petitioner under suspension with immediate effect and that the petitioner has failed to indicate anything on record pointing out the said order being contrary to any rule."
11. The petitioner is, aggrieved by order dated 19.12.2013 by which he is placed under suspension.
12. So as to consider and appreciate the grievance and contention raised by the petitioner against the impugned order, it is necessary and relevant to take into account relevant sub-rule of Rule 5 of GCSR:-
5. Suspension :-
(1)......
(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 conviction for an offence, he is sentenced to a term of imprisonment exceeding forty- eight hours and is Page 9 C/SCA/1042/2014 CAV JUDGMENT not forthwith dismissed or removed or compulsorily retired consequent upon such conviction.
Explanation :- The period of forty-eight hours referred to in clause (b) of this sub--rule shall be computed for the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
#(2A) 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 effective date of suspension. After such reviews shall be made before expiry of extended, period of suspension. The extension of suspension shall not be for a period exceeding one hundred and eighty days, at a time. An order of suspension made or deemed to have been made under sub-rule(1) or (2) of this rule, shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days. 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.
(3) .........
(4) .........
(5)@(a) Subject to the provisions contained in sub-rule(2A),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. @[substituted vide GN/GAD NO GS-2008-(10)-CVO-122005- 1077-Inq. Cell. Dated 6-8-2008]
(b) .............
(C) .............."
13. From the details mentioned in the petition and the reply affidavit and from the submissions by learned Senior Counsel for the petitioner and learned AGP for the Page 10 C/SCA/1042/2014 CAV JUDGMENT respondents it has emerged that upon receiving certain complaint against the petitioner, Anti Corruption Bureau (ACB) had set up a trap. According to ACB, the petitioner was caught accepting illegal gratification. 13.1 Then FIR came to be lodged alleging offence under provisions of Prevention of Corruption Act and the petitioner was arrested on 19.9.2013. Subsequently the petitioner was enlarged on bail on 26.9.2013. 13.2 Thus, the petitioner was in custody for more than 48 hours.
13.3 On 19.12.2013, the respondent passed suspension order.
13.4 In this context the respondents have averred and stated in their affidavit dated 9.1.2015 that:-
"At this juncture it is pertinent to note that in the instant case as the nature of the complaint was purely related to the corruption charges and it was directed to refer the matter to ACB. Furthermore, it is clarified that petitioner came to be suspended on 19/12/2013 after receiving the letter dated 13/11/2013 by the office of ACB. Copy of the aforesaid is annexed herewith and marked as ANNEXURE-1. Thereafter the said recommendation of ACB was considered by the deponent office and the same was forwarded to the Government for approval with consultation of General Administration Department. Which got approval on 17/12/2013.Thereafter, the deponent office on 19/12/2013 put the petitioner under Page 11 C/SCA/1042/2014 CAV JUDGMENT suspension and his head quarter was fixed at Office of the Regional Transport Office, Bhuj. Meaning thereby after carefully considering every factual aspect the deponent office has put the petitioner on suspension vide order dated 19.12.2013."
13.5 With regard to the petitioner's grievance and allegations that the respondents have not paid subsistence allowance though he is placed under suspension vide order dated 19.12.2013, the respondents, so as to explain the reason for not paying subsistence allowance, have averred and stated that:-
"5. I respectfully say and submit that the petitioner has not been paid the subsistence allowances till today by RTO, Bhuj because of the petitioner has not furnished the certificate to the headquarters apropos certifying that he is not doing any private service or engaged in any trade or business during the period in question for getting the subsistence allowance at the end every month. This type of certificate is supposed to be given by petitioner to the office for getting the subsistence allowance which petitioner has not done so far. As per the provisions in rule 69(6) of GCS Rules, 2002, "The Compensatory Local Allowance and House Rent Allowance sanctioned at the discretion of the suspending authority under the proviso to sub- rule (1) of rule-68, can be drawn only if the Government employee under suspension certifies that he or his family or both resided for the period for which the allowance is claimed at the station where he was on duty at the time of suspension. " It is pertinent to note here in that the petitioner has approached to the Regional Transport Office, Bhuj, on 24.12.2013 since then the petitioner has not approached to the Regional Transport Office, Bhuj to mark his presence. Further it is clarified that the petitioner made an application dated 26.04.2014 along with the affidavit to the Regional Transport Office, Bhuj, which was received by the Regional Transport Office, Bhuj, and he was remain present on 08.08.2014 before the Regional Transport Office, Bhuj but not any time thereafter to mark his presence.
Further, it is clarified that the petitioner wrote an application to the department but the same was backdate application that was presented to the Regional Transport Office, Page 12 C/SCA/1042/2014 CAV JUDGMENT Bhuj on 08.08.2014; and on after receiving application immediately the application was taken on record for further consideration. Subsequently, the application was considered by the Regional Transport Office, Bhuj, and which was decided on 13.8.2014 to not to give subsistence allowance as the petitioner did not produce the 3 certificate. Be that as it may, the deponent office is willing to pay subsistence allowance to the petitioner only if the petitioner submit relevant certificate to the effect that he is not in engagement with any private service or business and after he remain present in the concerned headquarter. It is pertinent to note herein that the petitioner has also produce the affidavit dated 08.08.2014 and in which, the petitioner has specifically stated that the petitioner is residing in Ahmedabad. As per the rule and condition of order of the suspension, the petitioner; is required to be present before the competent authority at the headquarter to avail the benefit of subsistence allowance." (emphasis supplied) 13.6 With regard to the petitioner's allegation and claim that though any departmental proceedings are not initiated against him the impugned order dated 19.12.2013 is passed, the respondents have stated, inter alia, that:-
"3. I say deponent office clarifies hereby that as the investigation was conducted by ACB, no departmental investigation was further thought to be proceeded by the deponent office till the criminal trial is pending. While it is an admitted fact that the petitioner is also being issued charge sheet and the trial is pending before the competent court. The copy of the charge sheet is produced by the petitioner along with further affidavit at page no. 61 of the paper book.
4. I respectfully say and submit that as the matter was investigated by the ACB, the department thought to not to do further investigation in the criminal matter. However, the department is under process to initiate the departmental proceedings which is at primary level. It is further clarified that as the matter was before the ACB, the department has not initiate the departmental proceedings till today. Furthermore, it is clarified that as per the General Administration Department circular dated 25.03.2008 to initiate the departmental inquiry, there is a guide line to be followed by the deponent office prior to the initiate departmental proceedings as the matter is juiced before criminal trial. The deponent office process of collecting Page 13 C/SCA/1042/2014 CAV JUDGMENT of all the documents from ACB to initiate departmental proceeding."
14. Since the petitioner is aggrieved by order dated 19.12.2013 whereby he is placed under suspension and since the petitioner has assailed the said order it would be appropriate to consider the relevant part of the order (free translation of original text which is in gujarati language). The relevant part of the said order dated 19.12.2013 reads thus:-
"As Mr Rakeshkumar Ranchhodlal Gandhi, Motor Vehicle Inspector, Class II, demanded and accepted the bribe of Rs. 24000/- from Mr. Samir Babubhai Patel of Amareli, the complainant, on 20/09/2013 to get released the truck bearing registration no. G] 23 T 6644 and other truck bearing registration no. G] 12 AY 4279 belonging to Mr. Nitin Patel and Mr. Firoj Pathan, resident of Rajula, he was nabbed in the decoy trap laid by the Police, Inspector of A.C.B. Police Station, Amareli, and Mr. Rakeshkumar Ranchhodlal Gandhi, Motor Vehicle Inspector, Class II, was arrested at 15.30 hours on 20/09/2013 and he was released on bail on 26/09/2013.
The Police Inspector, A.C.B., Amareli has registered an offence u/s 7, 13(1)(D) and 13(2) of the Prevention of Corruption Act, 1988 against Mr. Rakeshkumar Ranchhodlal Gandhi, Motor Vehicle Inspector, Class II, with Amareli A.C.B. Police Station vide C.R. No. 02/2013. In this way, prima facie, it appears that Mr. Rakeshkumar Ranchhodlal Gandhi, Motor Vehicle Inspector, Class II, has gained monetary benefit by misusing his position as a public servant.
Looking to the available evidence,prima facie, it appears that if serious offence registered vide C.R. No. 02/2013 with Amareli A.C.B. Police Station against Mr. A Rakeshkumar Ranchhodlal Gandhi, Motor Vehicle Inspector, Class II, is proved, any heavy punishment can be awarded to him out of/4 dismissal or removal from the service or compulsory retirement. If he is continued in government service actively, there is a full possibility that he may commit the same nature of serious offence or misconduct or create obstruction in the investigation or tamper with evidence or influence the witnesses. Therefore, Page 14 C/SCA/1042/2014 CAV JUDGMENT considering gravity of offence, as per the provision of rule 5(2)
(a) of Gujarat State Service (Discipline and Appeal) Rules, 1971, if the period of arrest exceeds 48 hours, suspension is considered from the date of arrest. In view of the said provision, Mr. Rakeshkumar Ranchhodlal Gandhi, Motor Vehicle Inspector, Class II, office of Assistant Regional Transport Officer, Amareli, is thus considered under deemed suspension for the time period from 20/09/2013 to 26/09/2013. In view of Motor Vehicle Inspector, Class II, is placed under suspension with immediate effect"
15. In this background learned Senior Counsel for the petitioner relied upon the decision dated 22.10.2006 of Calcutta High Court in case between Suman Roy Chaudhary v. State of West Bengal and relying on the said decision, learned Senior Counsel for the petitioner submitted that:
(a) the impugned order is unsustainable. According to learned Senior Counsel for the petitioner the impugned order is contrary to the relevant provision i.e. Rule 5(2)(a) of the said Rules.
(b) once the petitioner was reinstated after he was enlarged on bail the authority could not have invoked Rule 5(2)(a) and could not have passed impugned order under the said provision. According to learned Senior Counsel for the petitioner after employee is enlarged on bail and more particularly after the employee is thereafter he is, thereafter, (i.e. after being released on bail) reinstated, the provision under Rule 5(2)(a) i.e. power to treat the employee under "deemed suspension" cannot be invoked.
Page 15 C/SCA/1042/2014 CAV JUDGMENT
(c) the petitioner was enlarged on bail on 26.9.2013 and thereafter the petitioner proceeded on leave. The learned Counsel for the petitioner submitted that once the petitioner was reinstated, thereafter, he cannot be treated as suspension and any order under Rule 5 (2)(a) could not have been passed. Learned Senior Counsel for the petitioner submitted that even otherwise the process of reviewing the suspension was not undertaken within 90 days and any order extending the suspension, was not passed within or before completion of 90 days and, that therefore also the impugned order, which came to be passed almost three months after the petitioner came to be enlarged on bail and after he was reinstated, is not sustainable and such order could not have been passed by the respondents. Learned Senior Counsel for the petitioner submitted that the impugned order deserves to be and may be set aside.
15.1 Learned Senior Counsel for the petitioner also attempted to put forward submissions with regard to the merits of the allegations against the petitioner and to contend that the allegations are baseless. 15.2 The said aspect is beyond the scope of the petition and even otherwise it is premature to urge such contention in present petition.
Page 16 C/SCA/1042/2014 CAV JUDGMENT 15.3 Realizing this position, learned Senior Counsel for the petitioner restrained himself from making any submissions with regard to the allegations against petitioner and/or merits or otherwise of the said allegations. 15.4 It is clarified that the Court has not entered into merits of any aspect related to the allegations against the petitioner and/or merits of the incident in question.
16. Learned AGP vehemently denied the petitioner's claim and allegation that his request for leave was granted. Learned AGP also vehemently opposed and denied the submission that on being enlarged on bail the petitioner was reinstated. Learned AGP submitted that the petitioner continues to be under suspension with regard to suspension allowance. Learned AGP relied on the details mentioned in the affidavit and submitted that since the petitioner does not stay at Head Quarter he, according to the rules, is not entitled to the suspension allowance. The learned AGP, with regard to the submission that any departmental action is yet not initiated, relied on the details mentioned in the reply affidavit. He submitted that Page 17 C/SCA/1042/2014 CAV JUDGMENT the petition is not tenable and may be rejected. In the reply affidavit the respondents have averred that:-
"11. It is respectfully submitted that the order of suspension in the present petition is concerned, the said order clearly mentions that under the Gujarat Civil Service (Discipline & Appeal) Rules, 1971. The petitioner was placed under suspension with immediate effect. The petitioner by way of present petition is trying to misguide and create prejudice of his own by placing reliance upon the rules and that too in the incorrect manner. The petitioner himself has admitted to have gone on leave admitting that he assumed to be under suspension. The answering respondent was justified in passing an order placing the petitioner under suspension with immediate effect and that the petitioner has failed to indicate anything on record pointing out the said order being contrary to any rule."
17. Before taking up for consideration the submissions by learned Senior Counsel for the petitioner, it would be appropriate to consider the observations in the decision in case of Suman Chaudhary v. State of West Bengal decided by Calcutta High Court vide judgment dated 22.12.2006. In the said decision, it is observed inter alia that:-
"After hearing the learned counsel for the parties and after going through the aforesaid provision contained in the Rules, we find that Rule 7(3) deals with the case where a Government servant is detained in custody for the period exceeding 48 hours under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or otherwise or where he is undergoing a sentence of imprisonment. According to Sub--Rule 3, the Government servant in those types of cases should be deemed to be under suspension with effect from the date of his detention and shall remain under suspension until further order. But the aforesaid Sub--Ru1e 3, in our opinion, has no application to a case where the Government servant has already been released on bail due to pendency of a criminal proceeding if the employer had not passed the order of suspension before release of the Government servant on bail. In such a situation, even though, Page 18 C/SCA/1042/2014 CAV JUDGMENT no formal order of suspension. was passed during the period when the Government servant was in the custody he should be "deemed" to be under suspension for the period during his custody. In the case before us, the writ-petitioner after being released on bail, joined service and more than one month thereafter, the respondent passed the order of suspension until further order by taking recourse of Rule 7(3). Such course of action in our opinion, is not permissible under the aforesaid Sub-Rule 3.
We are quite conscious of the provision contained in Sub--Rule 2 of Rule 7 which gives power to the employer to consider whether notwithstanding the fact that the Government servant is already released on bail, he should be nevertheless placed under suspension during the pendency of investigation or trial. The aforesaid Sub-Rule 2 mandates that if the criminal charge is related to the official position of the Government servant or involves any moral turpitude on his part, suspension "shall" be ordered unless there are exceptional reasons for not adopting such course.
Therefore, in the case before us, the employer was entitled to consider the question of keeping the writ-petitioner under suspension notwithstanding the fact that the petitioner had already been released on bail by virtue of the power conferred upon the employer under Sub--Rule 2 but exercised power under Sub-Rule 3 which is totally inapplicable to the fact of the present case. We have already pointed out that till today, the State- respondent has not even filed objection before the Tribunal against the application under Section 19 of the Act filed by the writ-petitioner disclosing its stance.
We therefore, find substance in the contention of Mrs Sengupta that the order impugned before the Tribunal, as it stands, reflects total misapplication of mind on the part of the employer in keeping the writ-petitioner under suspension by taking recourse to Rule 7(3). The aforesaid Sub-Rule has not application to a case where the Government servant is already released on bail.
This order, however, will not stand in the way of the respondent in considering whether it is a exceptional case where the employee should not be kept under suspension during the pendency of the criminal proceeding and to pass appropriate order accordingly. We make it clear that we have not considered the merit of the allegations against the writ- petitioner and it is for the employer to consider such case for the purpose of proceeding under Rule 7(2) after considering the material available before it and after giving the writ-petitioners an opportunity of being heard."
Page 19 C/SCA/1042/2014 CAV JUDGMENT 17.1 So as to appreciate the submissions made by the learned Senior Counsel for the petitioner in light of the said observations, it is necessary to take into account relevant Rule i.e. Rule 7 of the Service Rules, which were taken into account by Calcutta High Court while deciding the matter. The provision which was taken into account was Rule 7 (3) of the concerned Rule 7. The said Rule 7 reads thus:
"R- 7. (1)........
(2) ......
(3) A Government servant who is detained in custody for a period exceeding 48 hours under any law providing for preventive detention or as a result of a proceeding either on a criminal charge detention or otherwise, shall be deemed to have been suspended, by an order of appointing authority, with effect from the date of his detention and shall remain under suspension until further orders. A government servant who is undergoing a sentence of imprisonment shall also be dealt with in the same manner, pending a decision on the disciplinary action to be taken against him.
(4) ........
(5)........."
17.2 The learned Senior Counsel, while relying on the said decision submitted that the said provision i.e. Rule 7(3) is similar and paramateria with Rule 5(2)(a) of GCSR. 17.3 On this count it would be relevant to also take into account similar provision under Rule 10 of Central Civil Services Rules 1965 (which is similar to and paramateria Page 20 C/SCA/1042/2014 CAV JUDGMENT with Rule 5(2) (a) of GCSR). Therefore, a comparative study of the said 3 provisions is not out of place so as to consider and appreciate the contention by learned advocate for the petitioner.
Rule 5 Rule 10 Rule 7 (1) The appointing (1) The appointing (1) The appointing authority or any authority or any authority or any
authority to which it is authority to which it is authority to which it subordinate or the subordinate or the is subordinate or any disciplinary authority disciplinary authority authority empowered or any other authority or any other authority by the Governor in empowered by empowered in that that behalf may place Government in that behalf by the a Government behalf may place a President, by general servant under Government servant or special order, may suspension -
under suspension place a Government
servant under
suspension-
(a) Where a (a) where a (a) Where a
disciplinary disciplinary disciplinary
proceeding against proceeding against proceeding or
him is contemplated him is contemplated departmental enquiry
or is pending, or or is pending; or 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
Page 21
C/SCA/1042/2014 CAV JUDGMENT
1 (b) Where a case 1 (b) where a case 1 (b) Where in the
against him in respect against him in respect opinion of the
of any criminal of any criminal authority aforesaid,
offence involving offence is under he has engaged
moral turpitude is investigation, inquiry himself in activities
under investigation, or trial prejudicial to the
inquiry or trial interest of the
security of the State;
or
1 (c) Where a case
against him in respect
of any criminal
offence is under
investigation or trial
(2) A Government (2) A Government (2) A Government
servant shall be servant shall be servant against whom
deemed to have been deemed to have been a proceeding has
placed under placed under been commenced on
suspension by an suspension by an a criminal charge but
order of appointing order of appointing who is not actually
authority - authority - detained in custody
(e.g., a person
released on bail) may
be placed under
suspension under
clause (c) of sub-rule
(1) by an order may
by any of the
authorities mentioned
in that sub--rule. If
the criminal charge is
related to the official
position of the
Government servant
or involves any moral
turpitude on his part,
suspension shall be
ordered under this
sub--rule, unless
there are exceptional
reasons for not
adopting such a
course.
Page 22
C/SCA/1042/2014 CAV JUDGMENT
2(a) with effect from 2(a) with effect from
the date of his the date of his
detention, if he is detention, if he is
detained in custody, detained in custody,
whether on a criminal whether on a criminal
charge or otherwise, charge or otherwise,
for a period exceeding for a period
forty eight hours. exceeding forty-eight
hours;
2(b) with effect from 2(b) with effect from
the date of his the date of his
conviction if, in the conviction, if, in the
event of conviction for event of a conviction
an offence, he is for an offence, he is
sentenced to a term sentenced to a term
of imprisonment of imprisonment
exceeding forty- eight exceeding forty-eight
hours and is not hours and is not
forthwith dismissed or forthwith dismissed or
removed or removed or
compulsorily retired compulsorily retired
consequent upon consequent to such
such conviction. conviction.
Page 23
C/SCA/1042/2014 CAV JUDGMENT
(3) Where a penalty of (3) Where a penalty of (3) A Government
dismissal, removal or dismissal, removal or servant who is
compulsory compulsory detained in custody
retirement from retirement from for a period exceeding
service imposed upon service imposed upon 48 hours under any
a Government a Government servant law providing for
Servant under under suspension is preventive detention
suspension is set set aside in appeal or or as a result of a
aside in appeal or on on review under these proceeding either on
review under these rules and the case is a criminal charge
rules and the case is remitted for further detention or
remitted for further inquiry or action or otherwise, shall be
enquiry or action or with any other deemed to have been
with any other directions, the order suspended, by an
directions, the order of his suspension shall order of appointing
of his suspension shall be deemed to have authority, with effect
be deemed to have continued in force on from the date of his
continued in force and from the date of detention and shall
with effect on and the original order of remain under
from the date of the dismissal, removal or suspension until
original order of compulsory further orders. A
dismissal, removal or retirement and shall government servant
compulsory remain in force until who is undergoing a
retirement and shall further orders. sentence of
remain in force until imprisonment shall
further orders. also be dealt with in
the same manner,
pending a decision on
the disciplinary action
to be taken against
him.
Page 24
C/SCA/1042/2014 CAV JUDGMENT
(4) Where a penalty of (4) Where a penalty of (4) (1) Where a
dismissal, removal or dismissal, removal or penalty of dismissal,
compulsory compulsory removal or
retirement from retirement from compulsory
service imposed upon service imposed upon retirement from
a Government a Government servant service imposed on a
Servant is set aside or is set aside or Government servant
declared or rendered declared or rendered under suspension, or
void in consequence void in consequence (2) a disciplinary
of or by a decision of of or by a decision of proceeding pending
a court of law, and a Court of Law and against a Government
the Disciplinary the disciplinary servant under
Authority on a authority, on a suspension, is set
consideration of the consideration of the aside in appeal or on
circumstances of the circumstances of the review under these
case, decides to hold case, decides to hold rules and the case is
a further inquiry a further inquiry remitted for further
against him on the against him on the inquiry or action or
allegations on which allegations on which with any directions
the penalty of the penalty of the order of his
dismissal, removal or dismissal, removal or suspension shall be
compulsory compulsory deemed to have
retirement was retirement was continued in force-
originally imposed the originally imposed,
Government servant the Government
shall be deemed to servant shall be
have been placed deemed to have been
under suspension by placed under
the appointing suspension by the
authority, from the Appointing Authority
date of the original from the date of the
order of dismissal, original order of
removal or dismissal, removal or
compulsory compulsory
retirement and shall retirement and shall
continue to remain continue to remain
under suspension under suspension
until further orders until further orders
Page 25
C/SCA/1042/2014 CAV JUDGMENT
4(a) in the case where
the penalty of
dismissal, removal or
compulsory
retirement from
service had been
imposed on and from
the date of the order
imposing such
penalty, and
4(b) in the case where
the disciplinary
proceeding was
pending, on and from
the date of the order
placing the
Government servant
under suspension;
and in either
case, the order of
suspension shall
remain in force until
further orders.
Page 26
C/SCA/1042/2014 CAV JUDGMENT
(5) Where a penalty of
dismissal, removal or
compulsory
retirement from
service imposed on a
Government servant
under suspension or a
disciplinary
proceeding pending
against a Government
servant under
suspension 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 the
Government servant
on the allegations on
which the penalty was
originally imposed or
the disciplinary
proceeding was
originally started, the
Government servant
shall be deemed to
have been placed
under suspension by
the appointing
authority or any other
authority empowered
by the Governor to
place a Government
servant under
suspension with effect
from the date on
which the order
imposing the penalty
or dismissal, removal
or compulsory
retirement from
service was made or
where the disciplinary
proceeding was
Page 27
C/SCA/1042/2014 CAV JUDGMENT
(5)(a) Subject to the (5)(a) Subject to the
provisions contained provisions contained
in sub-rule(2A),an in sub-rule (7), an
order of suspension order of suspension
made or deemed to made or deemed to
have been made have been made
under this rule shall under this rule shall
continue to remain in continue to remain in
force until it is force until it is
modified or revoked modified or revoked
by the authority by the authority
competent to do so. competent to do so."
5(b) where a 5 (b) Where a
Government servant Government servant
is suspended or as is suspended or is
deemed to have been deemed to have been
suspended, an suspended (whether
connection with any in connection with
disciplinary any disciplinary
proceeding or proceeding or
otherwise and any otherwise), and any
other disciplinary other disciplinary
proceeding is proceeding is
commenced against commenced against
him during the him during the
continuance of such continuance of that
suspension. the suspension, the
authority competent authority competent
to place him under to place him under
suspension may, for suspension may, for
reasons to be reasons to be
recorded by him in recorded by him in
writing, direct that the writing, direct that the
Government servant Government servant
shall continue to be shall continue to be
under suspension under suspension
until the termination until the termination
of all or any of such of all or any of such
proceedings. proceedings.
Page 28
C/SCA/1042/2014 CAV JUDGMENT
5(c) An order of 5(c) An order of
suspension made or suspension made or
deemed to have been deemed to have been
made under this rule made under this rule may be at any time be may at any time be modified or revoked modified or revoked by the authority which by the authority which made or is deemed to made or is deemed to have made it or by have made the order any authority to which or by any authority to authority is which that authority is subordinate 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.
Page 29
C/SCA/1042/2014 CAV JUDGMENT
(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
18. On comparative analysis of Rule 5 under GCSR, Rule 10 in CCSR and Rule 7 (considered in the decision by Calcutta High Court) it emerges that so far as sub-rule (1) is concerned, the clause (a) thereof are almost similar. However, there is additional clause by way of clause number (aa) in Rule 10 of CCSR is concerned. A provision similar to clause (aa) of Rule 10 of CCSR is found in form of clause (b) in Rule 7 applicable in State of West Bengal. Clause (b) of Rule 5 of GCSR and clause (b) of Rule 10 of CCSR and clause (c) of Rule 7 are almost similar, except the difference that under clause (b) of sub-rule (1) of Rule 5 in GCSR the term "Criminal offence" is qualified by addition of expression "moral turpitude". So far as sub- rule (2) of Rule 5 of GCSR and sub-rule (2) of Rule 10 in CCSR are concerned the said sub-rule (2) in Rule 5 and Page 30 C/SCA/1042/2014 CAV JUDGMENT Rule 10 of GCSR and CCSR respectively contain clauses
(a) and (b) and so far as clause (a) of both the sub-rules i.e. sub-rule (2) in GCSR and CCSR are concerned, they are similar. Whereas sub-rule (2) of said Rule 7 is concerned the said sub-rule (2) of Rule 7 operates in and is applicable in different situation and it is materially different. However, a provision similar to the provision in clause (a) of sub-rule 2 of Rule 5 and clause (a) of sub-rule 2 of rule 10 of GCSR and CCSR respectively is found, with certain variation, in sub-rule (3) of Rule 7 (in the Rules considered by Calcutta High Court). Meaning thereby, the said sub- rule (3) of Rule 7 is almost similar (except some variations) to sub-rule 2(a) of Rule 5 and Rule 10 in GCSR and CCSR respectively. The said sub-rule (3) employs additional term "preventive detention" which is not found in sub-rule (2)(a) of Rule 5 and Rule 10 in GCSR and CCSR respectively.
18.1 So far as present case is concerned it is the said rule 2(a) of GCSR which is relevant and according to the petitioner the sub-rule (3) of Rule 7 is similar to said sub- rule (2)(a) of Rule 5 of GCSR. The sub-rule 2(a) of rule 10 Page 31 C/SCA/1042/2014 CAV JUDGMENT of CCSR contains similar deeming fiction. The provision which is found in sub-rule 5(a) of Rule 5 of GCSR and sub- rule 5 (a) of Rule 10 of CCSR (which, provides, inter alia, that the order of suspension made or deemed to have been made under sub-rule 2(a) will remain in force until modified or revoked) is, with some variation, incorporated in sub-rule (3) of Rule 7.
18.2 The said sub-rule (3) provides, inter alia, that "the employee deemed to be placed under suspension shall remain under suspension until further orders." So far as sub-rule (4) of Rule 5 in GCSR and sub-rule (4) in rule 10 of CCSR and sub-rule (4) of rule 7, the details thereof are not not discussed herein because in view of the subject matter of this petition the said provision are not applicable and therefore not relevant.
18.3 So far as sub-rule (5) of rule 5 of GCSR and sub-rule (5) of rule 10 of CCSR are concerned, the said two provisions contain clause (a) and (b) and the said sub- rules and their respective clauses are almost similar. As mentioned earlier the substance and effect of clause (a) of Page 32 C/SCA/1042/2014 CAV JUDGMENT sub-rule (5) in GCSR and substance and effect of clause
(a) of sub-rule (5) of Rule 10 of CCSR is substantially incorporated in sub-rule (3) of Rule 7. Thus, on overall comparison it emerges that though there are some difference the said sub-rules are almost similar.
19. However sub-rule (2) of said Rule 7 is materially different inasmuch as the scope and field of operation of sub-rule (2) of Rule 7 is different than sub-rule (2) of Rule 5 and Rule 10 of GCSR and CCSR respectively. A provision parimateria or even almost similar to the sub-rule (2) of Rule 7 is not part of and is not found in the Rule 5 of GCSR or Rule 10 of CCSR. The said sub-rule (2) of Rule 7 provides, inter alia that an employee against whom any proceedings in respect of criminal charge are commenced but he is not actually detained in custody (or is released on bail) may be placed under suspension under clause (c) of sub-rule (1) of Rule 7 by an order made by any of the authority authorized to do so and if the criminal charge involves moral turpitude then suspension shall be ordered under the said sub-rule (2) of Rule 7 unless there is any exceptional reason for not doing so. Thus, under the said Page 33 C/SCA/1042/2014 CAV JUDGMENT Rule 7 separate and specific provision is made in respect of employee against whom criminal offence is under investigation or trial but the concerned employee is not actually detained.
19.1 By the said sub-rule (2) of said Rule 7 distinction and exception from the deeming fiction incorporated in sub- rule (3) of Rule 7 (which is similar to sub-rule (2)(a) of Rule 5 in GCSR or Rule 10 in CCSR) is carved out in respect of employee who is not actually detained (or is released on bail). Consequently a separate and specific power is available (under said sub-rule (2) of said Rule 7) to the authorities in respect of the employee against whom criminal offence is under investigation or trial but he is not detained and he is not in custody. Therefore, in such situation i.e. where the criminal offence is under investigation or trial but for any reason employee is not detained in custody, the concerned authority is obliged, to exercise the power under sub-rule (2) of said Rule 7.
20. Sub-Rule (1) of Rule 5 of GCSR contemplates and provides for two eventualities viz. (a) where disciplinary Page 34 C/SCA/1042/2014 CAV JUDGMENT proceedings against the concerned employee is either pending or is contemplated; and (b) where the proceeding by way of criminal case alleging offence involving moral turpitude is either under investigation or is pending by way of trial or is at stage of inquiry, against the concerned employee.
20.1 The said Sub-Rule (1) of Rule 5 prescribes, inter alia, that the appointing authority or other authority empowered by the government or disciplinary authority may place government employee under suspension in case of aforesaid two eventualities. The said Sub-Rule (1) of Rule 5 also prescribes "90 days rule" [i.e. the requirement that within 90 days (From the date the employee is placed under suspension) either disciplinary proceeding should be instituted or specific and express order in writing extending the period of suspension should be passed].
20.2 On the other hand, Sub-Rule (3) of Rule 5 deals with the situation where penalty of dismissal or removal or compulsory retirement from service imposed on an Page 35 C/SCA/1042/2014 CAV JUDGMENT employee (who was placed under suspension) is set aside in appeal or on review and the case is remitted for further inquiry or action. According to the said Sub-Rule (3) of Rule 5 when the proceedings are remitted the order of suspension shall be deemed to have been restored. 20.3 Sub-Rule (4) of Rule 5 addresses the situation which comes into play when the penalty order is set aside or is declared void by the decision of the Court and thereafter, the disciplinary authority, having regard to the situation of the case, decides to hold further inquiry against concerned employee in respect of the allegation with reference to which the penalty order was originally passed. Sub-Rule (4) of Rule 5 prescribes that in such situation also the order of suspension shall be deemed to have been restored and it will continue until further orders.
21. It is significant that the said Rule 5, apparently, does not allow vacuum or void at any stage and the legislature has provided bridge/s, either in form of deeming fiction or specific provision, to fill-up the gap between the order by Page 36 C/SCA/1042/2014 CAV JUDGMENT appellate authority or by order of learned Court and the fresh order which may be passed by the disciplinary authority. Likewise a bridge is provided for, in form of deeming fiction under sub-rule 2(a) to fill-up the gap between arrest and investigation and trial and / or departmental action.
21.1 The said five sub-rules (with respective sub-clauses) of Rule 5 [i.e. sub-rule (1) and (b)(3) and (4) and (5)] constitute one family which deal with and address the matters related to and arising from order of suspension. Therefore said sub-rule (2)(a) of Rule 5 and its scope and effect should be considered in light of all provisions which comprise Rule 5.
22. The said sub-rule (2) (a) of Rule 5 creates legal fiction inasmuch as by virtue of the said provision order of suspension shall be deemed to have been passed by operation of legal fiction and the government employee (who is detained in custody for period exceeding 48 hours) shall be deemed to have been placed under suspension.
Page 37 C/SCA/1042/2014 CAV JUDGMENT 22.1 The Sub-Clause (b) of Sub-Rule (2) of Rule 5 deals with the situation where criminal proceedings result into conviction and the employee is sentenced to term of imprisonment exceeding 48 years.
22.2 In such situation the employee, by virtue of said Sub- Clause (b) of Sub-Rule (2) of Rule 5, shall be deemed to be placed under suspension w.e.f. date of his conviction. 22.3 Sub-rule (5)(a) of Rule 5 (which is introduced vide Notification dated 6.8.2008) provide that order of suspension made or deemed to have been made under Rule-5 shall, subject to sub-rule 2A, remain in force until it is revoked or modified.
23. Sub-Rule (2) (A) which came to be inserted w.e.f. 4.7.2007 prescribes, inter alia, that the order of suspension shall be reviewed by authority competent to modify or revoke suspension before expiry of 90 days from the effective date of suspension and that such order of suspension made or deemed to have been made under Page 38 C/SCA/1042/2014 CAV JUDGMENT Sub-Rule (1) or Sub-Rule-(2) shall cease to be valid after 90 days unless it is extended after review. 23.1 The proviso to said Sub-Rule (2)(A) prescribes inter alia, that the requirement of review shall not be applicable / necessary in case of deemed suspension under Sub-Rule (2) (a) if the employee placed under suspension continues to be under suspension at the time of completion of 90 days and the said period of 90 days will count from the date the employee detained in custody is released or the date on which the fact of his release is informed to the competent authority, whichever is later.
24. The above mentioned provisions are relevant and petitioner's contentions need to be considered having regard to the said provisions.
24.1 The first limb of the submission by learned Senior Counsel for the petitioner is that on release of the employee from custody the operation of the said sub-rule (2) also comes to an end and that therefore when the petitioner came to be released on bail, the order of Page 39 C/SCA/1042/2014 CAV JUDGMENT suspension automatically came to an end and it ceased to operate against the petitioner.
24.2 The second limb of submission is that according to sub-rule (2A) if the order of suspension made or deemed to have been made is not reviewed within 90 days and after such review, any order extending or revoking suspension is not passed, then such suspension shall not be valid after 90 days and that therefore, in present case the petitioner's suspension must be declared as not valid because the suspension is not reviewed in accordance with sub-rule (2A).
25. So far as first limb of the submission is concerned it is relevant to note that the said sub-rule (2) does not contain any provision which limits its operation and co-relates it with the release of the employee from custody. 25.1 The said provision creates legal fiction as a result of which the employee (who is detained in custody for period exceeding 48 hours) shall be deemed to have been placed under suspension.
Page 40 C/SCA/1042/2014 CAV JUDGMENT 25.2 The said rule does not provide that the suspension, which comes in force by operation of law (viz. by deeming fiction as provided for under sub-rule 2(a) of GCSR) shall come to an end as soon as the concerned employee is released from custody. There is nothing in the said sub- rule (2) which speaks about the period for which the "deemed suspension" shall remain in force. 25.3 Likewise there is nothing in the said sub-rule (2)(a) which provides that the period of deemed suspension will be co-terminus with the period for which the employee is detained in custody and the period of deemed suspension would also automatically come to an end when the employee is released from custody.
25.4 In face of the provision under sub-rule (5) (a) of Rule 5 it is not possible to assume or infer, much less to conclude and hold that the deemed suspension (i.e. the order of suspension deemed to have been passed) will automatically end when the employee is released from custody.
Page 41 C/SCA/1042/2014 CAV JUDGMENT
26. According to the scheme of Rule 5, once an employee is detained in custody for period exceeding 48 hours then the prescribed consequence is automatic and it occurs simultaneously on the employee being detained in custody for period exceeding 48 hours and the said consequence does not evaporate or go away automatically upon the employee being released from custody and the suspension continues - of course subject to the provision under sub-rule (2A) (wherever applicable)
- unless it is lifted and taken away or modified by order passed by the competent authority. In the entire scheme of Rule 5 there is nothing to indicate that the legislature intended the period of suspension to automatically end on the employee being released from custody. 26.1 The said sub-rule (2)(a) does not connect the life and operation of the order of suspension with the tenure of the period of detention / custody and it does not provide that the period of suspension and period of detention / custody are co-terminus and the period of suspension will end on the employee being released from custody / detention.
Page 42 C/SCA/1042/2014 CAV JUDGMENT 26.2 This aspect is clarified and emphasized by virtue of the provision under sub-rule (5)(a) which provides, inter alia, that the order of suspension "made" or "deemed to have been made"; shall, subject to provisions under sub- rule (2A), continue to remain in force until the order of suspension is modified or revoked.
26.3 It is pertinent that the said sub-rule (5)(a) of Rule 5 takes in its fold the order of suspension "made" as well as "deemed to have been made" and the provision "until it is modified or revoked" is attached to and is applicable to both i.e. to the (a) order of suspension "made" and (b) deemed to have been made.
26.4 Thus, order of suspension - made or deemed to have been made under Rule 5 (2)(a) will come to an end when the order of suspension is revoked or modified (this is subject to provision under rule 2(A) of Rule 5). 26.5 In this view of the matter, it is not possible to accept the submission by learned Senior Counsel for the Page 43 C/SCA/1042/2014 CAV JUDGMENT petitioner that the period of operation of order of suspension under sub-rule (2)(a) automatically comes to an end when the employee detained in custody, is released. Such reading and construction of the provision viz. sub-rule (2)(a) of Rule 5 will frustrate and negate sub- rule (5)(a) of Rule 5 and will render the said sub-rule (5)(a) otiose. Merely because the petitioner is released on bail and his detention in custody has come to an end, the life of suspension does not come to an end and unless and until the "order of suspension made or deemed to have been made" is revoked or modified, the suspension continues. If the construction (as suggested by learned Senior Counsel) of the said provisions is accepted and if such eventuality (i.e. when the employee is released from custody the period of deemed suspension under sub- rule(2) would also come to an end) is read into the said sub-rule (2), then the provision under sub-rule (5)(a) of Rule 5 (which clarifies that the order of suspension made or deemed to have been made will continue to remain in force until it is modified or revoked) would be rendered otiose and the said provision would be frustrated.
Page 44 C/SCA/1042/2014 CAV JUDGMENT Therefore also, it is not possible to hold that the period of operation of order of suspension under sub-rule (2) is co- terminous with release of employee from custody. Hence, the contention fails and it is not sustainable. Therefore, the contention is rejected.
27. In this context it would be appropriate to take into account similar provision under Central Civil Services (Classification Control and Appeal) Rules, 1965 which prescribe similar parimateria provision. Rule 10 of said rules reads thus:-
"10. Suspension (1) ...........
(a) ...........
(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) ........
Page 45 C/SCA/1042/2014 CAV JUDGMENT (4) ........
"(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) .......
(c) .......
(6) .......
(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."
27.1 The said provision came up for consideration before Hon'ble Apex Court in case of Union of India vs. Rajiv Kumar (2003 [5] SCALE 297). After considering said provision Hon'ble Apex Court observed, inter alia, that:-
"11. Rule 10(2) is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness. Rules 10(3) and 10(4) operate conceptually in different situations and need specific provisions separately on account of interposition of an order of Court of law or an order passed by the Appellate or reviewing authority and the natural consequences inevitably flowing from such orders. Great emphasis is laid on the expressions "until further orders"
in the said sub-rules to emphasis that such a prescription is missing in Sub-rule (2). Therefore, it is urged that the order is effective for the period of detention alone. The plea is clearly Page 46 C/SCA/1042/2014 CAV JUDGMENT without any substance because of Sub-Rule 5(a) and 5(c) of Rule 10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one contemplated under Sub-Rule (2). The said provision under Rule 10(5)(a) makes it crystal clear that the order continues to remain in force until it is modified or revoked by an authority competent to do so while Rule 10(5)(c) empowers the competent authority to modify or revoke also. No exception is made relating to an order under Rules 10(2) and 10(5)(a). On the contrary, specifically it encompasses an order under Rule 10(2). If the order deemed to have been made under Rule 10(2) is to loose effectiveness automatically after the period of detention envisaged comes to an end, there would be no scope for the same being modified as contended by the respondents and there was no need to make such provisions as are engrafted in Rule 10(5)(a) and (c) and instead an equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose.
12. Thus, it is clear that the order of suspension does not loose its efficacy and is not automatically terminated the moment the detention comes to an end and the person is set at large. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made, the same continues by the operation of Rule 10(5)(a) and the employee has no right to be re-instated to service. This position was also highlighted in Balvantrai Ratilal Patel v. State of Maharashtra (AIR 1968 SC 800). Indication of expression "pending further order" in the order of suspension was the basis for aforesaid view.
23. The inevitable conclusion therefore is that the order in terms of Rule 10(2) is not restricted in its point of duration or efficacy to the period of actual detention only. It continues to be operative unless modified or revoked under Sub-Rule 5(c), as provided under Sub-rule 5(a).
27.2 From the above quoted observations by Hon'ble Apex Court in the decision in case of Union of India vs. Rajivkumar (supra) wherein Hon'ble Apex Court considered sub-rule (2) of Rule 10 of CCSR which is similar to Rule 2(a) of Rule 5 of GCSR, it emerges that the Hon'ble Page 47 C/SCA/1042/2014 CAV JUDGMENT Apex Court has held that the said sub-rule (2)(a) of Rule 10 of CCSR read with sub-rule (5)(a) of Rule 10 makes it clear that the suspension does not lose its efficacy and is not automatically terminated when detention comes to an end.
27.3 On the other hand on reading of the observations by Hon'ble Calcutta High Court, which are relied on by learned Senior Counsel for the petitioner, it emerges that in the said decision Calcutta High Court has observed that sub-rule (3) has no application where the employee is released on bail and the employer has not passed order of suspension before the employee is released on bail. 27.4 On reading the decision by Calcutta High Court it appears that it is in light of and on account of the provision under sub-rule (2) of said Rule 7 that Hon'ble Calcutta High Court observed and held that after an employee is released on bail the power available under sub-rule (3) of Rule 7 (which creates deeming fiction similar to sub-rule (2)(a) in Rule 5 of GCSR and Rule 10 of CCSR) cannot be invoked. It appears that probably Page 48 C/SCA/1042/2014 CAV JUDGMENT because there is specific provision under Rule 7 (i.e. by way of sub-rule (2) of Rule 7) which empowers the authority to pass order and place an employee under suspension after he is released on bail or he is not actually detained that Hon'ble High Court observed in the said decision that:-
"We are quite conscious of the provision contained in Sub-Rule 2 of Rule 7 which gives power to the employer to consider whether notwithstanding the fact that the Government servant is already released on bail, he should be nevertheless placed under suspension during the pendency of investigation...."
27.5 Having said thus the Hon'ble Apex Court has further observed in the said decision that:-
"Therefore, in the case before us, the employer was entitled to consider the question of keeping the writ-petitioner under suspension notwithstanding the fact that the petitioner had already been released on bail by virtue of the power conferred upon the employer under Sub-Rule 2".
27.6 However, under Rule 5 of GCSR provision similar to sub-rule (2) of Rule 7 is not available and that therefore the respondents in present petition are not conferred with power which is available to the concerned authority under Sub-Rule (2) of Rule 7.
27.7 On the other hand according to the legal fiction under Sub-Rue (2)(a) of Rule 5 the suspension comes into effect Page 49 C/SCA/1042/2014 CAV JUDGMENT when employee is detained in custody for period exceeding 48 hours and in absence of any provision restricting period of such "deemed suspension" and in light of the provision under Sub-Rule (5)(a) of Rule 5 of GCSR the suspension which comes into existence under Sub-Rule (2)(a) continues until the order of suspension made or deemed to have been made is modified or revoked.
27.8 In this view of the matter, the contention by learned Senior Counsel for the petitioner is not sustainable.
28. In light of the said observations by Hon'ble Apex Court with regard to parimateria provision in Central Civil Services Rules i.e. Rule 10(3) in case of Union of India vs. Rajivkumar (supra) this Court, with utmost respect and complete humility is unable to follow the decision relied on by the learned Senior Counsel for the petitioner and this Court is bound to follow the observations by Hon'ble Apex Court in aforesaid decision in case of Union of India vs. Rajivkumar (supra).
Page 50 C/SCA/1042/2014 CAV JUDGMENT 28.1 Thus, the aforesaid view with regard to sub-rule (2)
(a) of Rule 5 is in tune with, and is fortified by, the observation by Hon'ble Apex Court in the said decision.
29. Now, so far as the second contention by learned Senior Counsel for the petitioner is concerned, the said contention is raised in light of sub-rule (2A) which came to be inserted by Notification dated 4.7.2007 and modified by notification dated 6.8.2008.
29.1 The said sub-rule (2A) imposes the requirement of review of order of suspension made or deemed to have been made under Rule 5.
29.2 In view of the said provision the authority competent to modify or revoke the order of suspension is obliged to review the order before expiry of 90 days from the effective date of suspension and upon such review the authority is obliged to pass order either extending or revoking suspension.
29.3 However, in the facts of present case important and Page 51 C/SCA/1042/2014 CAV JUDGMENT relevant provision is the proviso of said sub-rule 2A. 29.4 The said proviso prescribes, inter alia, that such review shall not be necessary in the case of deemed suspension under sub-rule (2) if the employee continues to be under suspension at the time of completion of ninety days of suspension and the relevant date for calculating 90 days for the purpose of said sub-rule (2A) is the date the employee is released from detention or the date when the said fact is intimated, whichever is later. 29.5 Therefore, it would be appropriate to take into account relevant dates. In present case the relevant dates / events are:
a. Date of arrest 19.9.2013 b. Date of release on bail 26.9.2013 c. Date of order 19.12.2013 d. Period of 90 days, considering the "relevant 25.12.2013
date" in terms of the proviso i.e. from the date petitioner was released on bail 29.6 Thus, in present case - if said sub-rule (2A) is treated as applicable - the relevant date will be the date of intimation (i.e. the date on which the disciplinary authority was officially informed that the petitioner is released on Page 52 C/SCA/1042/2014 CAV JUDGMENT bail). The respondents have mentioned that the ACB had informed their department on 13.11.2013 about petitioner's release on bail. In this view of the matter the date of intimation would be the relevant date. However, if the date on which the petitioner was released on bail is taken into account then the fact situation would be as summarized in the table above.
29.7 The petitioner's challenge against the action of respondents of continuing the petitioner under suspension is required to be examined in light of the facts recapitulated above.
30. From the above mentioned details and dates it emerges that the date on which the petitioner was released on bail, he continued to be under suspension (deemed suspension). Even at the point of time when said period of ninety days got over, the petitioner continued under suspension. In this view of the matter the provision under sub-rule 2(A) will not be attracted in present case.
31. Even if the said aspect is not taken into account and Page 53 C/SCA/1042/2014 CAV JUDGMENT the actual date of petitioner's release on bail is taken into account then also period of 90 days (from the date when the petitioner was released on bail) expired on 25.12.2013 whereas the order which is impugned in present petition came to be passed on 19.12.2013 i.e. before expiry of period of 90 days from the date on which the petitioner came to be released on bail.
31.1 According to the provision under sub-rule (2A) read with sub-rule (2) (a) of Rule 5, review of the order of suspension should be undertaken before expiry of 90 days from the effective date of suspension and the order extending period of suspension, after such review, should be passed before expiry of 90 days from the effective date of suspension.
31.2 In present case it has emerged from the reply affidavit filed by the respondents that the respondents received intimation from the ACB vide letter dated 13.11.2013. Thus, even if one proceeds on the premise that this case comes within the purview of sub-rule (2A), then also in light of relevant facts, this case will stand Page 54 C/SCA/1042/2014 CAV JUDGMENT covered by and within the exception carved out by virtue of the proviso of sub-rule (2A). Now, if the said period of 90 days is calculated from the date when ACB informed the respondents that the petitioner is released form custody (i.e. if the said date is considered as the "relevant date") or even if the date on which the petitioner was enlarged on bail is treated as the "relevant date" and the said period of 90 days is calculated from said date, then also it emerges and comes out that the petitioner continued to be under suspension on such relevant date and the period of 90 days was not over (on such relevant date). Therefore, it cannot be said that the action of the respondents, including the decision of treating the petitioner under suspension and also the impugned order, are hit by said sub-rule (2A) of Rule 5 of GCSR. Thus, the second contention also fails and the said contention cannot be accepted.
32. At this stage it is relevant to mention that the learned senior counsel for the petitioner submitted, as alternative submission, that upon being released on bail, the petitioner had submitted application seeking leave.
Page 55 C/SCA/1042/2014 CAV JUDGMENT According to the learned senior counsel for the petitioner, the request for leave was granted. On strength of such submission and assertion, learned senior counsel for the petitioner submitted and claimed that when the petitioner's leave application came to be granted he should be deemed to have been reinstated and that, therefore, the impugned order, which came to be passed subsequently, is unjustified and untenable and such order cannot be passed after sanctioning leave and after reinstating the employee.
32.1 The said factual aspects submitted and mentioned by learned Senior Counsel for the petitioner are disputed and denied by learned AGP. The learned AGP submitted that the competent authority has not granted petitioner's leave application and any order allowing the leave application and / or sanctioning the leave prayed for by the petitioner, is not passed by the competent authority. Learned AGP submitted that in this view of the matter, the assumption or inference by the petitioner that he is deemed to have been reinstated, is baseless and unsustainable.
Page 56 C/SCA/1042/2014 CAV JUDGMENT 32.2 In view of such diagonally opposite submissions, learned advocate for the petitioner was asked to clarify as to whether any order sanctioning leave, i.e. granting leave application is passed by the competent authority and whether such decision is conveyed to the petitioner by the competent authority.
32.3 In response to the said query seeking clarification from the petitioner, learned advocate for the petitioner, upon taking instructions from the petitioner, submitted that any order sanctioning leave and granting leave application is not passed by the competent authority and such decision is not conveyed to the petitioner. 32.4 In this view of the matter, the submission that the petitioner is deemed to have been reinstated, does not hold good and does not have any basis and consequently, the submission to the effect that since the petitioner is deemed to have been reinstated the order passed by the competent authority is unsustainable, cannot be accepted and such contention does not survive in light of the fact that there is no factual foundation for the said contention.
Page 57 C/SCA/1042/2014 CAV JUDGMENT
33. From the foregoing discussion it emerges that the grounds on which the petitioner has challenged the impugned order are not sustainable. It is relevant that, as observed and held by Hon'ble Apex Court, in the case between Union of India vs. Rajiv Kumar (supra), wherein Hon'ble Apex Court considered the provision under Rule 10 of Central Civil Services Rules (which, as discussed earlier, is in parimateria Rule 5(2)(a) of GCSR) and held that the said Rule 10 of GCSR does not prescribe or contemplate any time limit. Likewise, the said Rule 5(2)(a) of GCSR also does not prescribe any time limit and it does not connect the period of detention on one hand and the period of suspension on the other hand, and does not make them "co-terminus"
33.1 According to the provision under Rule 5(2)(a) read with Rule 5(5)(a), once an order is made or deemed to have been made under sub-rule 2(a) then it would continue and remain in operation until it is modified or revoked (or the requirement under sub-rule (2A) - if applicable in the facts of the case - is not followed). Since Page 58 C/SCA/1042/2014 CAV JUDGMENT in present case any order revoking the suspension is not passed by competent authority the petitioner's suspension continues.
33.2 On the other hand since the date on which the petitioner came to be released on bail, he continue to be under suspension and also having regard to the fact that in any case the order dated 19.12.2013 (i.e. impugned order) came to be passed before expiry of 90 days from the effective date, there is no justification to quash the impugned order. Thus both the grounds raised by learned Senior Counsel by the petitioner, fail.
33.3 However, another aspect which has emerged from the material on record, and which is also urged by learned Counsel for the petitioner, is relevant and deserves consideration.
33.4 Learned Counsel for the petitioner emphasized the fact that almost 16 months have passed from the date on which the petitioner is placed under suspension and until now any departmental proceedings have not been initiated and departmental chargesheet is yet not issued.
Page 59 C/SCA/1042/2014 CAV JUDGMENT 33.5 It is also pertinent to note that recently in the decision dated 16.2.2015 in case of Ajay Kumar Choudhary vs. Union of India (Civil Appeal No. 1912 of 2015) Hon'ble Apex Court has observed, inter alia, that:-
"8. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period of if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental / disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.
9. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become n accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." IN similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Article 12 of the Universal Declaration of Human Rights, 1948 assures that- "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks". More recently, Page 60 C/SCA/1042/2014 CAV JUDGMENT the European Convention of Human Rights in Article 6(1) promises that "in the determination of his Civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...." and in its second sub article that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
14. We, therefore, direct that the currency of a Suspension Order should not extend beyond thee months if within this period the Memorandum of Charges / Chargesheet is not served on the delinquent officer / employee; if the Memorandum of Charges / Chargesheet 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 concerned person 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 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 recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that 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."
33.6 It is appropriate to consider petitioner's grievance also in light of the above quoted observations by Hon'ble Apex Court.
34. As mentioned above, since last about 16 months the petitioner is continued under suspension. The period of suspension has been extended from time to time however Page 61 C/SCA/1042/2014 CAV JUDGMENT until now departmental chargesheet is not issued and departmental proceedings are yet not initiated. The only response by the respondents in reply to said grievance is that the matter is under consideration. 34.1 It is alleged that the respondents are treating the case, very casually and are continuing the petitioner under suspension. This Court is alive to the fact that the allegations against the petitioner are related to alleged corruption. However, as observed by Hon'ble Apex Court in the decision in case of Ajay Kumar Choudhary (supra), the prolonged continuation of suspension for almost 16 months without any further action or decision deserves consideration by the competent authority. In the said decision the Apex Court has observed, inter alia, that:-
"8. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period of if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature...."
Therefore the respondents should, while keeping in focus the above quoted observations - particularly the Page 62 C/SCA/1042/2014 CAV JUDGMENT observations in paragraphs No. 8, 9 and 14 and without further delay take appropriate decision with regard to suspension and departmental action (i.e. whether to initiate and conduct departmental proceedings in accordance with the applicable rules or not). 34.2 In the result, having regard to the observations by Hon'ble Apex Court in recent decision in case of Ajay Kumar Choudhary vs. Union of India (supra) the Court, while rejecting the petitioner's contention with reference to Rule 5(2)(a) and Rule 5 (2)(A) of GCSR and while disposing the petition, is inclined, to observe and direct that the petitioner's case may be placed before the disciplinary authority / competent authority and the said authority may, after taking into account the observations by Hon'ble Apex Court in paragraph Nos. 8, 9 and 14 of the decision in the case of Ajay Kumar Choudhary (supra) take appropriate decision with regard to petitioner's continued suspension. Appropriate decision may be taken as early as possible preferably within 2 weeks. It is clarified that as mentioned at the outset, the Court has not entered into and has not examined the merits of the Page 63 C/SCA/1042/2014 CAV JUDGMENT case and / or petitioner's suspension. Therefore, the discussion and / or observations and conclusions in this judgment shall not be construed as expression of any opinion with regard to petitioner's suspension and / or his claim for suspension allowances for the period in question. The competent authority will consider the case independently on its own merits and in light of applicable Rules and Regulations.
With the aforesaid directions the petition is disposed off. Rule is discharged.
In view of the clarification in paragraph No. 1.1 of present order and in view of the fact the main petition is finally decided by present order, civil application does not survive and stands disposed of.
Sd/-
(K.M.THAKER, J.) Suresh* Page 64