Hon'ble Rajan Roy,J.
(Delivered by Hon. Rajan Roy, J.) Heard Shri R.B.Singhal, learned senior advocate, Assistant Solicitor General of India, assisted by Shri Praveen Shukla for the petitioners and Shri Satish Chaturvedi, learned counsel appearing for the respondents.
All the aforesaid writ petitions involve a common issue, therefore, they have been clubbed together and are being decided by a common judgment.
Writ Petition No.20024 of 2014 was heard as the leading petition.
Private respondents in all the aforesaid petitions are alleged to be involved in a case of fraud at Banda Head Post Office, involving embezzlement of government money from its R.D. Accounts amounting to Rs.1,25,26,582-50 (One crore twenty five lakh twenty six thousand five hundred eighty two and odd) The private respondents were placed under suspension vide order dated 19.5.2009 in contemplation of disciplinary proceedings against them in view of their involvement in the aforesaid fraud and embezzlement. Two First Information Reports were lodged on 9.6.2009 against them. As the suspension orders were valid only for a period of 90 days, under Rule 10 (7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (for short CCA Rules, 1965) therefore, a proposal for extension of the suspension order was moved on 5.8.2009. The said proposal is said to have been approved by the competent authority on12/13.8.2009, who is also said to be the Chairman of the Suspension Review Committee. The matter was placed before the Suspension Review Committee on 24.8.2009. On 25.8.2009, the Review Committee approved the extension of the suspension order of the private respondents.
On 24.10.2009, a charge sheet was issued to the private respondents under rule 14 of CCA Rules, 1965 in the departmental proceedings.
The respondents filed appeal/representation before the respondent no.2 against the order of suspension dated 19.5.2009. Initially the suspension order dated 19.5.2009 was reviewed and is said to have been extended by the competent authority on 25.8.2009, thereafter it was further extended from time to time.
On 5.6.2010, a charge sheet was filed by the concerned police in the court of criminal jurisdiction with regard to the above mentioned fraud and embezzlement in which the respondents before us were the accused. On 28.10.2010, summoning orders were issued by the said court. Being aggrieved, the respondents filed applications under section 482 Cr.P.C. before the High Court sitting at Lucknow, which were numbered separately as Criminal Misc. Application Nos.5128 of 2010, 5129 of 2010, 5130 of 2010 and 4638 of 2010. While entertaining the aforesaid applications, this Court passed interim orders to the effect that no coercive steps will be taken as against the accused petitioners. The said interim order is said to be continuing till date. In view of the above, the criminal trial has not proceeded.
As the criminal trial is pending, therefore, the disciplinary proceedings have also not proceeded.
As the appeal of the respondents against their continued suspension was not decided, they filed Original Application No.264 of 2012 before the Central Administrative Tribunal, which was disposed of on 28.02.2012 with a direction to decide the pending appeal of the respondents within a period of three months by a reasoned and speaking order in light of Rules of 1965. In compliance thereof, the appeals of respondents were decided in January, 2013.
Being aggrieved, the petitioners filed the Original Applications which have been allowed by the Tribunal on various dates by means of the impugned judgements and the initial suspension order dated 19.5.2009 and the appellate order dated 22.1.2013 have been quashed being invalid.
According to the Tribunal, the initial suspension order was not reviewed within a period of 90 days, which was mandatory, consequently, a direction has been issued by the Tribunal to reinstate the respondent no.1 in all the writ petitions w.e.f. the expiry of period of 90 days from the passing of the suspension order dated 19.5.2009, as per rules.
The contention of learned counsel for the petitioners is that the proposal for extension of the suspension order having been approved by the competent authority on 12/13.8.2009, which was well within the statutory period of 90 days, the Tribunal was not justified in allowing the original application of the respondent no.1, merely because the Suspension Review Committee approved the extension beyond the period of 90 days on 24/25.8.2009. The contention was that the competent authority which had approved the proposal for extension of the suspension order on 12/13.8.2009 was also the Chairman of the Review Committee and the decision of the Review Committee taken subsequently, approving the extension of the suspension order would in fact, relate back to the decision dated 12/13.8.2009.
On the other hand, learned counsel for respondent no.1 in all the writ petitions, submitted that the provisions of sub-rule 6 and 7 of Rule 10 of CCA Rules,1965 are mandatory, and as the approval by the review committee has been accorded on 25.8.2009, which is beyond the period of 90 days from 19.5.2009, and as after approval, no order has been passed by the competent authority which in any case would have been beyond the aforesaid statutory period, the suspension order dated 19.5.2009 expired on the expiry of 90 days and subsequent extensions, including the first extension, being de horse the rules, were clearly illegal, and the Tribunal has rightly allowed the original application.
Shri Satish Chaturvedi has relied upon the judgements of the Supreme Court in the case of Union of India and others vs.Dipak Mali, reported in 2010 (2) SCC 222 and in the case of Union of India and others vs. Ashok Kumar Aggarwal, (Criminal Appeal No.9454 of 2013), decided on 22.11.2013 in support of his contention.
As per rule 10 (1) of CCA Rules, 1965, 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-
"10(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 suspension shall not be for a period exceeding one hundred and eighty days at a time.
7. 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 form detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."
In the instant case, the suspension order dated 19.5.2009 was passed in contemplation of disciplinary enquiry against the delinquent. As per sub-rule 7 of Rule 10, such an order of punishment could not be valid after a period of 90 days unless it is extended after review by the Committee before expiry of 90 days.
As per sub-rule 6 of Rule 10, such an order of suspension was to be reviewed by the authority which is competent to modify or revoke the suspension before the expiry of 90 days from the effective date of suspension. On the recommendation of the review committee constituted for the purpose the competent authority may pass orders either extending or rejecting the suspension order. Subsequent review were also required to be made before expiry of the statutory period as extension of suspension could not be for a period exceeding 180 days at a time.
In this case, the order of suspension having been passed on 19.5.2009 the period of 90 days expired on 18.8.2009. The meeting of the review committee took place on 25.8.2009 in which the extension of the suspension was approved. The petitioners have not brought on record any order passed by the competent authority subsequent to 25.8.2009, which is said to have been passed on the basis of recommendation of the review committee. In any case, the recommendation of the review committee is beyond the period of 90 days, as referred to above, therefore, any order based thereon would also be beyond the statutory period.
The contention of the learned senior counsel appearing for the petitioners, that as the competent authority had approved extension of the suspension on 12/13.8.2009, therefore, it is within the period of 90 days, and thus the extension of suspension, approved by the Committee on 25.8.2009 is legal, is misconceived and appears to have been made only for the sake of rejection.
On 12/13.8.2003, there was no recommendation of the review committee nor there was any approval. A reading of sub-rule 6 of Rule 10 makes it amply clear that the decision to extend or revoke the suspension is to be taken by the competent authority on the recommendation of the review committee. Therefore, there was no question of a decision having been taken prior to the recommendation of the review committee in its meeting dated 25.8.2009. The contention of the learned senior counsel, if accepted, will amount to putting the cart before the horse. The contention is, accordingly, rejected. The approval of the competent authority on 12/13.8.2003 was in respect of the proposal for extension which was to be placed before the review committee.
The case at hand is squarely covered by the pronouncements of the Apex Court relied upon by Shri Satish Chaturvedi, learned counsel appearing for the private respondents, the relevant extract of which are being quoted hereinbelow:
"10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the Respondent and when the Petitioner's case came up for review on 20th October, 2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of Sub- rules (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under Sub- rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days.
11.The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of Sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension."
In view of the above, the conclusion is irresistible that the initial extension of the suspension order dated 19.5.2009 itself being illegal, the subsequent extensions as also the rejection of the appeal by the appellate court are also rendered illegal and the judgements of the learned Tribunal to this extent do not suffer from any error.
However, the Tribunal has quashed the initial suspension order dated 19.5.2009 itself though the said order cannot be said to suffer from any illegality as it was perfectly in accordance with Rule 10 (1) of the CCS Rules, 1965. It is only the extension of the suspension order which is bad. The impugned judgements of the Tribunal to this extent are bad.
Having said so, we are constrained to take note of the fact that the allegations against the private respondents, are quite serious as they are alleged to be involved in fraud and embezzlement of public money to the extent of Rs. 1,25,26,586/-. On the one hand, the criminal trial has not proceeded on account of interim orders passed by this Court at Lucknow, which has already been referred earlier. On the other hand, the disciplinary proceedings have also not proceeded on account of pendency of the criminal trial, and the suspension of the private respondents is also rendered illegal w.e.f. 18.8.2009 in view of the reasons already discussed above.
However, the fact remains that the contingencies mentioned in Rule 10(1) (a) and (b) still subsist. In these circumstances and considering the seriousness of the allegations against the delinquents will it be in the interest of administrative functioning of the department to allow them to resume their duties, is the question which should be considered and answered by the petitioners in the light of Rule 10 (1)(a) and (b), therefore, as the disciplinary and criminal proceedings are still pending, it is open for the petitioners to pass a fresh order in terms of the aforesaid rules.
So far as the payment of arrears of salary to the private respondents with effect from the date of reinstatement is concerned, we are of the view that considering the seriousness of the allegations levelled against them, the question of financial irregularity running into crores of rupees being involved, it would be imperative that a decision be taken in this regard only after the conclusion of the departmental/criminal proceedings against them. Any decision for payment of salary to the private respondents for the aforesaid period of suspension, without the enquiry/investigation into the charges levelled against them being completed, and without any adjudication regarding their involvement, would be unjustified and would amount to putting a premium on their misconduct. The impugned judgements are modified to the said extent.
Subject to the above, the writ petitions are dismissed.
Order Date :- 04.07.2014 sc