Indian Kanoon - Search engine for Indian Law

8. In a recent judicial pronouncement of the Supreme Court in the case of Ajay Kumar Choudhary V. Union of India, (2015) 7 SCC 291, long continuation of suspension was deprecated. Though that was a matter relating to suspension during the pendency of a criminal proceeding, their Lordships in the Supreme Court held that the considerations relevant in criminal cases are applicable to moderate suspension order in cases of departmental enquiry also. It was observed:

"20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure, 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso to Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C.

10. The authoritative pronouncement of the Hon'ble Supreme Court in the aforesaid case, therefore, clearly obliges the authorities to consider at the stage of issuance of charge-sheet, whether suspension should further continue or not. In terms of the mandate as above, a reasoned order is required to be passed for extension of suspension. This could be done either by incorporating those reasons in the memo of charge-sheet itself or by a separate order while issuing the charge- sheet. I find that despite the decision of the Supreme Court and the direction issued as above, which constitutes law under Article 141 of the Constitution of India, the authorities have not examined this aspect whether further continuation of suspension would be necessary, while issuing charge-sheet. The stage of issuance of charge-sheet would be necessarily a stage when the disciplinary authorities has to apply his mind to all relevant facts and circumstances, gravity of allegations and necessity to continue an employee under suspension and if, upon consideration of all the relevant circumstances, the authority considers the continuation of suspension necessary in the administrative exigency and public interest, a reasoned order will have to be passed.

11. I would hasten to add that even if the suspension order may have all the justification at the time when it was passed, in the absence of reasons for extension at the time of issuance of charge-sheet, further continuation of suspension may be taken as unjustified, unnecessary and unwarranted in administrative exigency and public interest. There cannot be a straight jacket formula as to what should be those considerations but all that can be said is that the considerations relevant would be those to decide whether it be in administrative exigency and public interest to continue suspension, keeping in view that the object of suspension is not to punish.

13. On the peculiar facts and circumstances of the present case, it is found that though the petitioner preferred an appeal against the order of suspension on 10.03.2017, the appeal has also remained undecided. In its very nature, an appeal against the order of suspension must be decided one way or the other at the earliest and it should not be kept pending for months together. Under all circumstances, an appeal against the order of suspension should be decided within a period of 45 days and not beyond the same, for, if the suspension continues, the very purpose and object of filing appeal is frustrated.