Himachal Pradesh High Court
Central Tibetan Schools ... vs V. Sekar & Another on 22 August, 2019
Bench: V .Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No. 437 of 2019-D
Date of Decision : August 22 , 2019
Central Tibetan Schools Administration & another
....Petitioners
Versus
V. Sekar & another ...Respondents
Coram:
The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1
For the petitioners :Mr. Neeraj K. Sharma, Advocate.
For the respondents : Mr. Sanjeev Bhushan, Senior Advocate
with Mr. Rajesh Kumar, Advocate, for
respondent No. 1.
Mr. Rajesh Kumar Sharma, Assistant
Solicitor General of India, for proforma
respondent No. 2.
V. Ramasubramanian , Chief Justice. (Oral)
Challenging the order of the Central Administrative Tribunal, quashing the order of suspension passed against the respondent herein, the Administration of the School, that comes under the control of the Central Government, has come up with the above writ petition.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:28:01 :::HCHP 22. Heard Mr. Neeraj K. Sharma, learned Counsel for the .
petitioners and Mr. Sanjeev Bhushan, learned Senior Counsel for the 1st respondent.
3. Admittedly the 1st respondent herein, was placed under suspension on 18.05.2018. The said order of suspension, was reviewed by the Administration and an order was passed on 10.08.2018, extending the suspension of the 1st respondent, for a further period of 180 days or until further orders.
4. Though there is no indication, in the original order of suspension or in the order passed on 10.08.2018, as to the applicability of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, in short the CCS (CCA) Rules, there is a clue in the charge-
memo, issued to the 1st respondent herein on 26.11.2018, as to the applicability of these Rules. The charge-memo issued on 26.11.2018, invites reference to the CTSA Disciplinary Rules, 2004, as well as to the CCS (Conduct) Rules, 1964. Therefore, there is no dispute about the fact that the CCS (CCA) Rules, to the extent admissible, are also ::: Downloaded on - 29/09/2019 02:28:01 :::HCHP 3 applicable to the cases of the employees working in the petitioners' Administration.
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5. In the light of the applicability of the provisions of these Rules, the Tribunal set aside the order of suspension, on the ground that the charge-memo, not having been issued within 90 days, from the date of the original order of suspension, is liable to be set aside. Accordingly, the Tribunal allowed the application, set aside the order of suspension and held the continuation of the period of suspension beyond 15.08.2018 to be illegal. Therefore, the 1st respondent was directed to be re-instated w.e.f.
16.08.2018.
6. The Tribunal relied upon the decision of the Supreme Court in Ajay Kumar Choudhary vs. Union of India through its Secretary & another, (2015) 7 SCC 291 to come to the conclusion that if the charge memo has not been issued within 90 days, the suspension should go.
7. As against the said order of the Tribunal, the Administration has come up with the above writ petition, contending inter alia, that the decision of the Supreme Court in Ajay Kumar Choudhary has been wrongly ::: Downloaded on - 29/09/2019 02:28:01 :::HCHP 4 understood by the Tribunal and that when serious charges are framed against the 1 st respondent, the extension of .
suspension was necessitated and that, once the orders of extension have been based upon the review of the situation, the same did not call for interference by the Tribunal.
8. We have carefully considered the above submissions.
9. Admittedly the original order of suspension was passed on 18.05.2018. The order was reviewed on 10.08.2018, within a period of 90 days. The charge-memo was issued on 26.11.2018. The second order of extension was passed on 18.11.2018.
10. Keeping these dates in mind, let us now come to Rule 10(6) of the CCS (CCA) Rules, around which the dispute revolves. Rule 10(6) of the CCS (CCA) Rules reads as follows:
"10. Suspension -
...
(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is competent to modify or revoke the suspension before expiry of ninety days from the effective date of suspension on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of ::: Downloaded on - 29/09/2019 02:28:01 :::HCHP 5 suspension shall not be for a period exceeding one hundred and eighty days at a time."
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11. It is seen from sub-Rule (6) of Rule 10 of the CCS (CCA) Rules, that the order of suspension made under these Rules, should be reviewed mandatorily by the Authority, which is competent to modify or revoke the order of suspension. This review has to be made before the expiry of 90 days from the effective date of suspension. This condition which forms the first part of sub-Rule (6) of Rule 10 has been duly complied with by the petitioners.
12. The 2nd part of Rule 10(6) provides for subsequent reviews, before the expiry of the period of the extended period of suspension. The last part of Rule 10(6) says that the extension of suspension, should not be for a period exceeding 180 days at a time.
13. It is sought to be contended on behalf of the petitioners that what is prohibited by the last part of Rule 10(6) is the duration of one extension order and not the total period for which a person can be kept under suspension. We do not think that the interpretation of the last part of Rule 10(6) should be done in this case. We reserve it for an appropriate case.
::: Downloaded on - 29/09/2019 02:28:01 :::HCHP 614. Rule 10 of the CCS (CCA) Rules in entirety, does not speak about the suspension order automatically lapsing or .
the suspension order becoming liable to be set aside in the event of the failure to issue a charge-memo within a period of 90 days. It is only by the judicial pronouncement made in Ajay Kumar Chaoudhary, that the Tribunal came to such a conclusion. But in Ajay Kumar Choudhary, all that the Supreme Court said in paragraph - 21 was that the currency of a suspension order should not extend beyond three months, if within this period the memorandum of charges is not served upon the delinquent. But this statement was with a caveat. It was further stated in the very same paragraph that if the memorandum of charges is served, a reasoned order must be passed for the extension of the suspension.
15. In the case on hand, we do not think it necessary for us to go into the question whether the extension order passed on 10.08.2018, upon the review of the matter, was sufficient compliance. There was compliance with the technical requirement of Rule 10(6) of the CCS (CCA) Rules.
::: Downloaded on - 29/09/2019 02:28:01 :::HCHP 716. But it is admitted that the inquiry initiated by virtue of the charge-memo dated 26.11.2018 has already concluded.
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The charge-memo contains four Articles of Charge. The first three Articles of Charge related only to the repeated representations made by the 1st respondent to the Ministry of Human Resource Development, New Delhi and to various Authorities. It appears that the 1st respondent has been sending complaints against the Administration of the School, making all kinds of allegations. But these representations are addressed admittedly only to the higher Authorities.
17. It is only the fourth Article of Charge if at all, that could have warranted suspension of the 1 st respondent. But as rightly pointed out by the learned Senior Counsel for the 1st respondent, the basis for the fourth Article of Charge arose in the year 2016 and the order of suspension itself was only in 2018.
18. The object of transferring a person or placing a person under suspension is primarily to ensure that the disciplinary proceedings are not interfered with and the evidence is not tampered. The object is to keep the person away from the ::: Downloaded on - 29/09/2019 02:28:01 :::HCHP 8 place where the inquiry is to be held. Now that this object has been achieved and the inquiry itself is completed, we .
do not thing that the order of the Tribunal calls for any interference. It is open for the petitioners to pass a final order in the proceedings at the earliest.
19. With the above observations, the writ petition is dismissed.
Pending applications, if any, also stand disposed of accordingly.
(V. Ramasubramanian), Chief Justice.
(Anoop Chitkara), Judge.
August 22 , 2019 (PK) ::: Downloaded on - 29/09/2019 02:28:01 :::HCHP