Central Administrative Tribunal - Kolkata
Madhu Sudan Mukhopadhyay vs M/O Defence on 26 September, 2022
1 1582/2017 CENTRAL ADMINISTRATIVE TRIBUNAL OD KOLKATA BENCH, KOLKATA 0.A./350/01582/2017 Date of Order: 26-09%: dady Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member In the matter of : Madhu Sudan Mukhopadhyay, Son of Sunil Kumar Mukhopadhyay, Upasana Apartment, 98/21, S. N. Banerjee Road, Barrackpore, Kolkata-700120. eesseeeteeets Applicant VS. 1. Union of India service through the Secretary, Ministry of Defence, Department of Defence Production, 136, South Block, New Delhi-110011. . 2. The - Director. General, Ordnance Factory Board, 10-A, S. K. Bose Road, Kolkata- 700001. 3. The General Manager, Rifle Factory Ishapore, Ministry of Defence, Govt. of India, PO ~ Ishapore Nawabganj, Pin- 743144, yb 2 1582/2017 4. Works Manager/Admin, Rifle Factory Ishapore, PO- Ishapore Nawabganj, Dist. 24- Parganas (N), Pin-743144. | 5. Asst. Works Manager/Admin., Rifle Factory Ishapore, PO- Ishapore Nawabganj, Dist. 24-Parganas (N), Pin-743144. | 6. Shri Arijeet Mukherjee, working for gain as Assistant Works Manager, Rifle Factory Ishapore, PO- Ishapore Nawabganj, Dist.24- Parganas (N), Pin-743144. sesteeees Respondents For The Applicant(s): Mr. B. R. Das, Counsel Mr. K. K. Ghosh, Counsel For The Respondent(s): Mr. S. Paul, Counsel Ms. D. Nag, Counsel ORDER
Per: Hon'ble Dr, (Ms.) Nandita Chatterjee, Administrative Member
1. The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"i) Pass orders declaring the suspension order dated 20.09.2016 (Annexure AS) as invalid on the basis of first review on 24.12.2016 .
by competent authority after the expiry of 90 days reckoned from © the effective date i.e. 19.12.2016 and lapsed for all intents and purpose;
-
bine --
' 3 1582/2017
ii) Treat the petitioner as in regular service w.e.f. 19.12.2016 and entitled to all pay & allowance (sans the amount paid) with all consequential benefits thereof;
iti) Pay all the arrears in salary as referred to in (ii) above forthwith;
iv) Certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayer for in (i) to (iii), above;
'v) Any further order/orders and/or direction or directions as to your Lordships may seem fit and proper;
vi) Costs."
2. Learned Counsel for both sides are present and heard. Examined pleadings and documents on record.
The respondents have furnished an affidavit on 20.01.2021 in response to the directions of this Tribunal dated 13.01.2020. Learned Counsel for the respondents has filed his written notes of arguments. 4, Learned Counsel for the applicant would submit that, the applicant is an Upper Division Clerk, who was appointed as a Semi-Skilled Industrial employee in October, 1997. The applicant was assigned the duties of a Cashier in the Cash Office w.e.f. 01.01.2006 to 05.07.2016 till his transfer to Pension Cell w.e.f. 06.07.2016. The applicant was put under suspension vide orders dated 20.09.2016 in contemplation of a disciplinary proceeding , and, that a charge memorandum was issued to him on 01.12.2016 to which the applicant had remied, denying all alleged charges made against him. The applicant represented on 09.06.2017 (annexed at Annexure-A/2 to the OA) praying for revocation of the suspension on the grounds that, as the charge sheet had already been served upon him, and, that, as the disciplinary - Noe 4 1582/2017 proceedings had been initiated accordingly, the scope of retaining him any further on suspension does not arise.
That, thereafter, the applicant was informed vide a letter dated 24.12.2016 that his suspension period was extended by 180 days consequent to review of suspension as recommended by the Suspension Review Committee on 16.12.2016. According to the applicant, his period of suspension had lapsed on 19.12.2016, and, any continuation of suspension thereafter was violative of the CCS (CCA) Rules, 1965.
The applicant would further allege that, he was given to understand by virtue of his RT] application, that no Review Committee had ever assembled or had taken up the first review of his extension of suspension prior to the statutory date of expiry of his suspension dated 19.12.2016. The applicant is also aggrieved that the commensurate subsistence allowance, to which he was entitled, was not disbursed to him in terms of 7" CPC. | Accordingly, being aggrieved with the actions of the authorities which the applicant would allege to be violative of CCS (CCA) Rules, 1965, and, at non- receipt of his subsistence allowance, claimed to be due to him, the applicant has ~ approached this Tribunal praying for the aforementioned relief.
5. The applicant would advance the following grounds in support of his claim :-
( That, the act of placing the > applicant under suspension in contemplation of disciplinary proceedings suffer from infirmity in absence of sufficient reasons
-in such order. »
(ii) That, the purported first review was held after 90 days from the date of oe expiry of his suspension, i.e. 20.09.2016 and the competent authority's Mee 5 1582/2017 recommendations for extending such suspension was obtained on 24.12.2016, which is violative of the provisions of Rule 10 of CCS (CCA) Rules, 1965.
(iii) That, the continuation of such purported suspension beyond 90 days was "violative of the law laid down in Union of India & Ors. vs. Dipak Mali (reported in 2010 (1) SCC(L&S) page 593.
(iv) That, the Disciplinary Authority had acted unilaterally, and, in violation of DoPT's OM dated 07.01.2004, which has laid down the mandatory composition of a Review Committee.
(v) That, the extension of the suspension order was not accompanied by any reasons thereby violating the law laid down in Ajay Kumar Chaudhary vs. Union of india & Ors. [2015 (2) SCC (L&S) page 455].
(vi) That, the applicant concerned has not been paid his due subsistence allowance as per the recommendations of the CPC.
6. Per contra, the respondents, in their reply, affidavit, as well as written notes of arguments, have rebutted the claim of the applicant as follows :-
(i) That, a Board of Enquiry report dated 05.09.2016 had revealed that the applicant had committed gross misconduct in the discharge of his assigned duties as Cashier as under:
i) That, the applicant had not maintained cash book and imprest fund register since 2010 in violation of cash drill procedure.
ii) That, the applicant had not entered each and every transaction supported by vouchers in the cash book. Unauthorized entries as well as forcible removal of pages of the cash book were detected.
Me 6 1582/2017 'jii) The applicant had not prepared the monthly balance sheet and bank reconciliation statements. Faulty entries were found in the closing balance and brought forward balance was not reflected as per requirements. It was also found that payments in some cases have been made unauthorizedly and fraudulently by inserting fake signature of Encashment officer in the cheques.
(ii) That, in view of such facts and circumstances, as the applicant had allegedly committed grave and gross irregularities in cash office, he had been placed under suspension w.e.f. 20.09.2016 in contemplation of disciplinary proceedings against him so as to prevent him from further interfering with and hampering the investigation and tampering with oral and documentary evidence.
(iii) That, a major penalty charge-sheet under Rule 14 of the CCS (CC&A) Rules, 1965 had been issued to him on 01.12.2016.
(iv) That, in pursuance of the instructions of DoPT OM dated 07.01.2004, the Ministry of Defence constituted a Permanent Review Committee, vide their OM dated 27.08.2004 with the purpose of review of suspension cases of different categories of employees in Ordnance Factories Organization.
(v) That, the first review of the suspensicn had been made on 16.12.2016 within 90 days as prescribed in the Rules, and, in view of the gravity of the charges, his suspension had been extended for further 180 days with existing rate of subsistence allowance.
hits 7 1582/2017 7 (vi) That, the applicant was suspended on 20.09.2016 and his suspension was
7. extended after review on 16.12.2016, i.e. on attaining 88 days, the decision however, was communicated to the applicant on 24.12.2016.
(vii) That, one representation made by the applicant was received on 09.06.2017 when the 2" suspension review committee had already decided to extend the order of suspension for next 180 days on 05.06.2017. The. representation of the applicant dated 09.06.2017 was, however, considered by the 3 suspension review committee on 06.12.2017.
(viii) That, in the meantime, the applicant had filed one application being OA No. 350/900/2017 disputing the charge-memo as well as the disciplinary proceedings. On 17.07.2017, this Tribunal had issued an ad-interim order of stay not to proceed further with the departmental proceedings without leave of the Tribunal.
The respondent authorities have also sworn an affidavit, in response to this _. Tribunal's directions dated 13.01.2020, wherein this Tribunal had directed the respondents to bring on record the Rules of Review Committee on suspension. In 'the same, the respondents have stated as follows :-
{i) The Permanent Review Committee of the present applicant is constituted with the following officials :
i, The General Manager, Rifle Factory Ichhapur, who is the Disciplinary _ Authority of the applicant - Member 1 ii. The Senior most Additional General Manager of Rifle Factory. Ichapur --
Member, and Md see 8 1582/2017 'iii. The Additional Director General of Ordnance Factories and Member (WV&E) who is the Appellate Authority of the present applicant, i.e., the Chairman.
(ii) The respondents would further submit that, in the case of the applicant, the proposal was signed by members of the committee on 15.12.2016 and then forwarded to the Chairman of the Committee with all supporting documents and the total case records. The proposal was accepted by the Chairman of PRC on 16.12.2016. The entire process was however completed within the prescribed time frame and in conformity with the circulars/instructions in this regard.
8. Learned Counsel for the respondents, in his written notes of argument, while reiterating the contents of the reply and affidavit of compliance, has further argued that as the spirit of Rule 10 of CCS (CCA) Rules, 1965 is either to extend suspension within a specific period, and if not so done within a specified period, the suspension is deemed as revoked. Thus failure to communicate the extended tenure of suspension within the expiry of 90 days' time does not imply automatic | revocation of suspension.
Further, sub- rules (6) and (7) of Rule 10 of the 1965 rules were inserted by way of amendment and had taken effect from 02.06.2004 and, the phrase, "before expiry of ninety days from the effective date of suspension", as appearing in Sub-rule (6) was substituted by Notification dated 06.06.2007. The O.M. of 2004 was amended to prevent further gap in utilizing the services of manpower who ought not to be kept indefinitely on suspension, drawing allowances but not contributing to offices' productivity. It was also Wa C0 39 1582/2017 interided to contain the uncertainty and frustration of the employee under suspension.
9. Having heard the contrary arguments of both Learned Counsel, and, having examined pleadings and documents on record, the following issues are identified for adjudication in the instant OA :-
(i) Whether the applicant's suspension and extension of suspension as recommended by the first Review Committee was as per the provisions of Rule
10 of CCS (CCA) Rules, 1965.
(ii) Whether appropriate procedural steps were taken by the respondent _ authorities in extending the suspension period of the applicant prior to their orders dated 24.12.2016, which is the primary subject of challenge in the _ instant original application.
10. Atthe outset, the provisions of suspension as laid down in Rule 10 of CCS (CCA) Rules, 1965 are quoted as under :-
"10. _- Suspension (1) | The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he .has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than-a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority; such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
nh 10 1582/2017
- (2) A Government servant shall be deemed to have been placed under suspension by an
2) O order of appointing authority --
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for.a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. ° EXPLANATION - _ The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3) Where a penalty of dismissal, removal or compulsory retirement from service ' imposed upon a'Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders : .
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
(5) (a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to. have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. "
(b) Where a Government servant is suspended or Is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance 'of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until-the termination cf all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of .
Iw 11 ; | 1582/2017 niriety 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 © | | o 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) | Anorder 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."
A plain. reading of Rule 10 of CCS (CCA) Rules, 1965 reveals that a / gcvernment servant may be placed under suspension where
(a) a disciplinary proceeding against him is either contemplated or pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
In the instant matter, the applicant was first suspended on 20.09.2016 by the following suspension order :-
"No, 49(16)/DLC Government of india, Ministry of Defence, Indian Ordnance Factories,
- Rifle Factory, Ishapore, P.O.: ilshapore- Nawabganj, Dist. : North 24 Parganas, Pin. 743144.
Dated : 20-09-2016 ORDER Whereas a disciplinary proceeding against Shri Madhu Sudan Mukhopadhyay, Ex-Cashier (now UDC/Pension Cell), Per. No. 101451, Rifle Factory, ishapore Is contemplated;
Mas
12 1582/2017 ' Now, therefore, the undersigned, in exercise of the powers conferred by sub-rule (1) of Rule 10 of the Central Civil Services (Classification Control and Appeal) Rules, 1965, hereby Oo places the said Shri Madhu Sudan Mukhopadhyay, Upper Division Clerk, Per. No. 101451, Pension Cell, Rifle Factory, ishapore under suspension with effect from 20.09.2016 (F/N). it is further ordered that during the period that this order shall remain in force the Headquarters of Shri Madhu Sudan Mukhopadhyay, Upper Division Clerk, Per. No, 101451, Pension Cell, Rifle Factory, ishapore should be ISHAPORE and the said Shri Madhu Sudan Mukhopadhyay, Upper Division Clerk, Per. No. 101451, Pension Cell shall not leave the Headquarters without obtaining the previous permission of the undersigned. Sd/-
(Ratneshwar Verma) General Manager"
The Hon'ble High Court of Kerala in Dr. M.H.Abdul Rasheed vs. Secretary to Government (WPC 28804 of 2006) had held as follows :-
(emphasis supplied) "Whether the Government servant against whom disciplinary proceedings are contemplated should or should not continue in his/her office during the period of inquiry is a matter to be assessed by the authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are malafide and without there being even prima facie material connecting the Government servant with the alleged misconduct. .....A government servant can be placed under suspension for the smooth conduct of disciplinary proceedings. It is not necessary that before suspending the employee he shall be found guilty.
While deliberating in the same lines, the Hon'ble High Court of Kerala in Raj Mohan vs. Secretary to Government [2001 (3) KLT 956] had held that :- (emphasis supplied) "The paramount consideration in placing a public servant under suspension is public interest. That is the touchstone on which a suspension has to be tested. Therefore, when public interest demands an employee to be kept out of service, there cannot be a fetter on such. demand other than those provided under the statute. Clause (a) of sub-rule (1) of R.l0 provides for suspension when a disciplinary proceeding against an employee is contemplated or is pending, Clause (b) provides for suspension where a case in respect of any criminal offence is under investigation or trial and Clause (c) provides that in contemplation of final orders on the disciplinary proceedings, an employee could be placed under suspension. In_all these situations, suspension is justified if the appropriate authority in the then prevailing circumstances considers the suspension necessary in public interest".
Whe 13 1582/2017 Reiterating the above noted principle, in Dai-Ichi Karkaria Ltd. vs. Union of © India & Ors. [2000(4) SCC 57], the Hon'ble Apex Court ruled as under :-
(emphasis supplied) "Suspension pending departmental enquiry is a safeguard against the Government servant interfering with and hampering the preliminary investigation and tampering with material evidence-oral and documentary. In case of involvment in criminal proceedings, such charges usually involve moral turpitude. It would not be proper to allow the person concerned to work as_a_public_servant, unless there are exceptional _reasons for _not_resorting to suspension. Suspension is also ordered as a deterrent to exhibit the firm determination of the Government to root out corruption or other grave misconduct."
In the instant matter, as disclosed by the respondents, certain grave * allegations regarding the Cash Office came to light and the department set up a Board of Enquiry report dated 5.09.2016. The Report disclosed that the applicant had allegedly committed grave and gross irregularities in the Cash Office, and, accordingly, the authorities decided to place him under suspension w.e.f.
20.09.2016 in contemplation of disciplinary proceedings against him so as to prevent him from further interfering and hampering with the investigation and tampering with oral and material evidence.
A reading of Rule 10(1) of the CCS (CCA) Rules, 1965, hence, leads to the clear inference that the government may place a member of the service under suspension, in case the government is satisfied, and, also, that the power to suspend by the authorities is subject to limited scope of judicial interference. Such suspension orders may also be tested in the light of Hon'ble Apex Court's decisions in U.P. Rajya Krishi Utpadan Mandi Parishad and Others vs Sanjiv Rajan [(1993) Supp (3) SCC 483], wherein the Hon'ble Apex Court held that:
"whether the employee should or should not continue in their office during the period of enquiry is a matter to be assessed by the authority concerned and ordinarily, the court She 44 1582/2017 should not interfere with the orders of suspension unless they are passed malafide and without there being even a prima facie evidence or record connecting the employees with © the misconduct in question".
In State of Orissa vs. Bimal Kumar Mohanty [1994 SCC (L&S) 875], the Hon'ble Apex Court rules as under :-
(emphasis supplied) a sssae Suspension is not a punishment but is only one of forbidding or disabling an_ employee to discharge the duties of office or post held by him. In alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay. fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or - investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depenairg on the nature of the allegations, gravity of the situation _ and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by malafides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep _in- mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge."
The Hon'ble Apex Court in the latter case has laid down the principle for keeping an officer under suspension, that, it will not be an administrative routine or an automatic order to suspend an employee. It would be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in this behalf.
Accordingly, the order .of suspension issued with: reference to the applicant/charged officer dated 20.09.2016 in contemplation of disciplinary proceedings based on the preliminary findings of the Board of Enquiry cannot be faulted with, in the light on Rule 10 of the CCS (CCA) Rules, 1965 and the judicial ratio cited as above.
nde 15 1582/2017 ' This settles the first issue, and, this Tribunal is of the considered view that © O the suspension order dated 20.09.2016 was in 'order and was issued in accordance with the provision of Rule 10(1)(a) of CCS (CCA) Rules, 1965.
11. The applicant has also primarily challenged the First Review of his suspension orders, the decision of which was conveyed to him on 24.12.2016. The scope of review of a suspension order has to be derived by a conjoint reading of Rule 10 (1), 10(5), 10 (6) as well as 10 (7) of the CCS (CCA) Rules, 1965. The provisions of Rule 10 (1) of CCS (CCA) Rules, 1965 specifies the situation where a
-$\ government servant can be placed under suspension and Rule 10 (5) makes it clear that when the government servant is suspended in connection with any disciplinary proceeding, the authority competent to place him under suspension m«y record in writing the reasons directing that the government servant should continue to be under suspension until the termination of any such proceeding.
Logical inference to the same is provided by Rule 10 (6) of CCS (CCA) Rules, 1965, which underlines the scope of review. A plain reading of Rule 10 (6) of CCS (CCA) Rules, 1965 reveals that a review has to be made by the competent authority to modify or revoke the suspension; that such review has to be done before expiry of 90 days from the effective day of suspension; that such review | should be on the 'recommendations of a Review Committee constituted for the 'purpose to decide on either extending or revoking the suspension and that subsequent review shall be made before expiry of the extended period of suspension. Rule 10 (6) of CCS (CCA) Rules, 1965 also lays down that, such extension of suspension shall not be for a period exceeding 180 days at a time. Nie 16 1582/2017 ' Rule 10 (7) of CCS (CCA) Rules, 1965 also highlights that no suspension order made under Sub-Rule (1) and (2) of Rule 10 of CCS (CCA) Rules, 1965 will be valid after expiry of 90 days from the effective date of suspension unless extended for a further period.
In this context, DoPT's OM dated 07.01.2004, relied upon by the applicant, is extracted here as under :-
"2. It is, therefore, necessary to constitute Review Committee(s) to review the suspension cases, The composition of Review Committee(s) may be as follows :-
{i) The disciplinary authority, the appellate authority and another officer of the level of disciplinary/appellate authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the President Is not the disciplinary authority or the appellate authority.
(ii) The disciplinary authority and two officers of the level of Secretary/Addl Secretary/Joint Secretary who are equivalent or higher in rank than the disciplinary authority from the same office or from another Central Government office {in case another officer of same level is not available in the same office), in a case where the appellate authority Is the President.
(iii) Three officers of the level of Secretary/Addl Secretary/Joint Secretary who are higher In rank than the suspended official from the same Department/Office or from another Central Government Departemnt/Office (in case another officer of same level is not available in the same office), in a case where the disciplinary authority Is the President.
The administrative ministry/department/office concerned may constitute the review committees as indicated above on a permanent basis or ad-hoc basis.
3. The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping In view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspenSion for one year without any charges being filed in a court of law or no charge-memo has been Issued in a departmental enquiry, he shall ordinarily be - reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter Involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned."
The respondents have clarified that a Review Committee has been duly constituted in the respondent ministry. Although the applicant would challenge oe 17 1582/2017 the proceeding of the Review Committee in his. averment that the Review Committee decided on the basis of circulation of proceedings which is not permissible in law, we find no such embargo either in the ccs (CCA) Rules, 1965 or in the DoPT OM. Rather in the current environment of virtual communications, conclusion by any mode, physical or remote, is an acceptable practice. In Abdul Gafoor Vs. State of Kerala (2001(2)KLI 31 para 7), the Hon'ble High Court of Kerala held as follows:
(emphasis supplied) "The order of suspension is an executive action that lies within the domain of administrative discretion. The scope of interference by the Court with the order of suspension in the case where a delinquent employee faces departmental/criminal charge has been examined in large number of cases. The consensus of opinion in the cases has been that even if a criminal/departmental trial takes a long time it is ordinarily 'not open to the court to interfere in the case of suspension as it is the executive domain of the competent authority who can always review its order of suspension as it has inherent power to do so and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order if satisfied that the disciplinary case would be concluded. The action of the authority is always amenable to judicial review. But such a review is directed not against the decision but is confined to the examination for the decision making process, The judicial function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration. In the ultimate analysis, judicial review depends on the facts and circumstances of each case and to see whether the findings of the facts are reasonably based on evidence and whether such findings are consistent with the law of the land."
Prior to DoPT's OM dated 07.01.2004, and subsequent amendment inserted in Rule 10(6) of CCS (CCA) Rules, 1965, in B.K. Sharma Vs. State. of Rajasthan & Ors (29 ILR (1979)515), the Hon'ble Apex Court considered the scope of power to ~ suspend and its effect, observing that, although the Rules does not provide for maximum period of suspension, however, the State Government has issued various circulars from time to time emphasising the necessity of keeping a Government servant under suspension for a minimum period for the reason that Whe
18 1582/2017 he is being paid the subsistence allowance without performing any duties and that such suspension causes much distress to the employee so placed under suspension.
In the Andhra Pradesh State Road Transport Corporation Vs. State Transport Appellate Tribunal & Ors (1998(7)SCC 353), the Hon'ble Apex Court, explaining the exercise of discretionary power, held as under:
"The power cannot be arbitrarily or indiscriminatory exercised. The power is coupled with a duty. The authority must genuinely address itself to the matter before it. It must act in good faith, must have regard to all relevant considerations and must not be shirked by irrel2vant consideration, must not shirk to promote alien to the letter and spirit of the legislation that gives it power to act and must not act arbitrarily or capriciously."
A common refrain in these judicial pronouncements is that, the order of suspension should not be made in routine or casual manner and that public interest is to be the guiding factor to decide whether to place a government servant under suspension and to continue his suspension thereafter. The following circumstances would hence be considered appropriate to continue a government servant under suspension :-
(i) Whether his continuation in office will prejudice an investigation, trial or any enquiry comprehending or tampering with witnesses or documents
(ii) Whether his continuation in office will prejudice discipline in the office in which he is working.
(iii) Whether his continuation in office will be in public interest.
Rule 10(1) of CCS (CCA) Rules, 1965 read conjointly with 10 (6) and 10 (7) makes it clear that the order of suspension or any modification thereon has to be ensured after due application of mind, after reckoning the guiding principles, and Mh 19 1582/2017 with reasons as to why the government servant is required to be continued on suspension in public interest.
12. In this context, this Tribunal: would refer to the decision of Review Committee that has been furnished by Learned Counsel for the respondents ina sealed cover and which was perused by this Tribunal in the process of the instant adjudication. The suspension of the applicant was reviewed on 16.12.2016 which is well before the date of expiry of 90 days after his suspension orders cated 20.09.2016. Hence, the primary requirement of limitation as contained in Rules
4. 10(6) and 10 (7) of ccs (CCA) Rules, 1965 is satisfied in this case. The minutes of Review Committee is contained under the following Headings - i. Name/Desgn. Per. No./Section ii. Date of Suspension iii. Charge iv. Subsistence Allowance v. Date of Last Review & Decision vi. Status of the Case vii. Remarks of periodical review by the review committee in connection with __. revocation of suspension/increase/ decrease/ status quo of subsistence allowance.
While details under name/ designation/ Pr. No., date of suspension, charge, subsistence allowance and status of case have been noted in such document, the aad 200 1582/2017 remarks of the periodical review committee, extending the recommendation for expansion for another 6 months by the review committee, have not been provided. Committee members namely, the Addl. GM/(R), General Manager and Member/WV & E have all put their signature recommending extension of the suspension period.
What is not provided in the review committee proceedings, however, is the reason as to why the Committee members found it expedient to continue to keep the applicant/charged officer under suspension. There are no findings as to (i) ay Whether his continuation in office will prejudice an investigation, trial or any enquiry comprehending or tampering with witnesses or documents, (ii) Whether his continuation in office will prejudice discipline in the office in which he is working and, (iii) whether his continuation in office will not be in public interest.
13. As held in Dai-Ichi Karkaria (supra), utmost caution and care is to be exercised in orders of suspension that result in a grave consequence to the government servant concerned, and that, it is necessary to remember that the power of suspension is to be sparingly exercised and only for valid reasons. No such valid reason appear to have been advanced by the members of the said Review Committee.
in Andhra Pradesh State Road Transport Corporation (supra), the Hon'ble Apex Court has held that the power of suspension is coupled with a duty in that authority must genuinely address itself to the matter before it. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations so as to violate the legislation that gives it no power to act arbitrarily or capriciously.
ee 21 . 1582,/'2017
-- InB. K. Sharma (supra), the Hon'ble Apex Court emphasized the necessity | of keeping a government servant under suspension for a minimum period for the reason that he is being. paid the subsistence allowance without working in any capacity and is a source of frustration of the employee. in Bimal Kumar Mohanty (supra), the Hon'ble Apex Court has reiterated the necessity and importance of application of mind by the competent authority while deciding on suspension or modification thereof. In Abdul Gaffur (supra), it was held that the competent authority can 7] always review the order of suspension as it has inherent power to do so, and, while exercising such power, the authority can consider the case of the employee for revoking the suspension order if satisfied that the disciplinary case would be concluded and that, the action of the authority is always amenable to judicial review.
in the instant matter, it has been disclosed that, although the disciplinary proceedings had been initiated against the applicant, the said proceedings which' had been challenged by the applicant in OA 150/00900/2017, was stayed by a Single Bench of this Tribunal, vide its orders dated 17.07.2017. 14, In fine, in the above backdrop of analysis of rules as well as the judicial ratio cited herein, this Tribunal would therefore arrive at the following conclusion :-
(a) The suspension order dated 20.09.2016 is not violativa of any statute or procedure.
(b) The Review Committee's decision to first review the suspension of the applicant was done well within the statutory period.
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(c) The Committee was formed as per DoPT's OM dated 07.01.2004 and its procedural formalities cannot be faulted even if conducted by circulation in the absence of any embargo thereon.
(d) The review committee entrusted to decide on further extension or revocation of the suspension of the applicant/charged officer, however, did not exhibit any application of mind or record their consideration of the circumstances which would call for continuance of the applicant on suspension, which is seriously violative of the provisions of Rule 10(5), 10(6) and 10(7) of CCS (CCA) Rules, 1965 as well as the ratio laid down by various judicial pronouncements cited above.
The respondents had tried to provide adequate justification, in para (xxxi) of their reply dated 24.09.2018, to the continuance of the suspension. However, such justification which wes issued nearly 2 years after the date of recommendation of the Review Committee is an afterthought and will not assist the respondents in advancing their case.
15. Accordingly, this Tribunal would deem it fit to set aside the first review order of the suspension of the applicant/charged officer, and, remand it back to the competent authority to act in accordance with law.
16. The Hon'ble Apex Court in the case of Govt. of India, Ministry of Home Affairs vs. Tarak Nath Ghosh [(1971) 1 SCC 734] has held that, "When serious allegations of misconduct are imputed against a member of a Service normally it would not be desirable to allow him to continue in the post where he was functioning. If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed. It would not be improper to remove the officer concerned from the sphere of his activity inasmuch as it may be necessary to find out aoe 23 1582/2017 ' facts from people working under him or look into papers which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those O whose duty it was to make the enquiry to do so while the officer was present at the spot. Such a situation can be avoided either by transferring the officer to some other place or by temporarily putting him out of action by making an order of suspension." Hence, it is further directed that, once the applicant is reinstated with consequent entitlements, in the interim period, he should not be associated with _ the Cash Office any longer and posted in such a place where he would not be ina position to prejudice the investigation, trial or enquiry, subvert discipline or act against public interest.
Considering the gravity of the charges, the respondents are also at liberty to seek the leave of this Tribunal to continue the disciplinary proceedings, as permitted by this Tribunal in OA 350/900/2017.
17. With these directions, the instant OA stands as disposed of. No costs. (Dr. Nandita Chatterjee) (Mr. Jayesh V. Bhairavia) Administrative Member _ Judicial Member sl