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Judgment
O R D E R
Mr. Swarup Kumar Mishra, J.M.
The applicant challenging the orders dated 18.02.2019 (Annexure A/3) and 13.08.2019 (Annexure A/4), by which his suspension was extended retrospectively after 90 days period, has filed this OA praying for the following reliefs:
“(a)The orders dtd. 18.02.2019 and 13.08.2019 under Annexures-A/3 and A/4 be quashed.
(b)The respondents be directed to pay salary and allowance of the applicant from the day after expiry of 90 days from the effective date of deemed suspension, i.e. 14.11.2018.
(c)Pass any other order/orders as would be deemed just and proper.”
Heard both sides, perused the records and went through the citations relied upon by them.
It is the case of the applicant that on 14.11.2018 he was arrested and detained in custody and thereafter he was put under deemed suspension w.e.f. 14.11.2018 vide order dated 16.11.2018 (Annexure-A/1). He was released on bail vide order dated 27.11.2018 (Annexure-A/2) passed by Learned Sessions Judge, Dhenakanal and he brought it before Respondent No. 3 vide communication dated 03.12.2018. However, Respondent No. 4 vide memo dated 18.02.2019 (Annexure A/3) extended his suspension for a period of 180 days from 12.02.2019 as per recommendation of the Review Committee. Deemed suspension was further extended for a period of 180 days from 11.08.2019 vide order dated 13.08.2019 (Annexure A/4). Learned counsel for the applicant submitted that as per Rules 10(6) and 10(7) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 the suspension order should have been reviewed by the Review Committee and the order should have been passed by the Reviewing Authority either to revoke or extend the deemed suspension before expiry of 90 days. They having not done so, the order dated 18.02.2019 and 13.08.2019 are bad in law and is liable to be quashed.
The respondents in their short reply submitted that review committee for consideration of suspension of the applicant met on 11.02.2019 and 08.08.2019 and recommended the extension of period of his suspension for a period of 180 days. The first meeting was held on 11.02.2019 before completion of 90 days of initial period of suspension and the second meeting was held on 08.08.2019 before completion of 180 days strictly adhering to Rule 10(6) and 10 (7) of CCS (CCA) Rules 1965. The respondents further submitted that the applicant was awarded with penalty of removal from service vide order dated 18.10.2019 (Annexure R/3).
For the sake of reference Rule 10(6) and 10(7) of CCS (CCA) rules 1965 is extracted below:
“(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 under sub rule (1) and (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 detention 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.
Admittedly, the applicant was arrested and detained in custody on 14.11.2018 and was placed under deemed suspension w.e.f. 14.11.2018 vide order dated 16.11.2018. The applicant was released on bail on 27.11.2018 and the same was communicated to the respondents vide letter dated 03.12.2018. The suspension of the applicant was extended for a period of 180 days w.e.f. 12.02.2019 vide order dated 18.02.2019. As per Rule 10(6) and Rule 10(7) of CCS (CCA) Rules 1965, the applicant having being released from detention and communication to that effect being served on respondents before expiry of 90 days, his case should have been reviewed prior to completion of 90 days of placing him under deemed suspension. The applicant was placed under deemed suspension w.e.f. 14.11.2018. The 90 days expired on 11.02.2019 whereas the order of extending the suspension was passed on 12.02.2019. In a similar case, i.e. in OA No. 628/2017, this Tribunal vide order dated 02.01.2020 has held as under:
“11.It is noticed with concern that the respondent authorities have failed to carry out the review of suspension of the applicant in time as required under the rules. It was delayed although the information about his release from detention was available with the authorities on 12.9.2012 and the reason for such delaying the review of suspension from 12.9.2016 till 9.12.2016 has not been explained in the pleadings of the respondents. Further, there is no mention of the status of the charge memo dated 28.2.2017 issued to the applicant. It is unfortunate that the authorities have not handled such a serious issue involving misappropriation of government money diligently. Therefore, the respondent nos. 1, 2 and 3 may fix responsibility on the -6- officials found responsible for not reviewing the suspension in time and for delaying the matter and take action as deemed appropriate against such officials as per the provisions of law.
12.For the reasons as discussed above, the orders dated 09.12.2016 (Annexure-A/6) and 11.05.2017 (Annexure-A/10) extending the suspension of the applicant are not in accordance with the rule 10 of the CCS (CCA) Rules, 1965 and hence, these orders are set aside, since it was necessary to conduct the review of the applicant’s suspension before expiry of 90 days from the effective date of deemed suspension i.e. before 2.10.2016, which was not done in this case. As a result, other orders at Annexures A/7 and A/9 are also set aside. In the circumstances, the applicant is entitled to the salary and allowances after deducting the subsistence allowances already paid to him for the period from 3.10.2016 till his date of reinstatement on 02.01.2018, which is to be disbursed to the applicant within six months from the date of receipt of a copy of this order. The OA is allowed accordingly with no order as to cost.”
The aforesaid decision of this Tribunal has been confirmed by Hon’ble High Court of Orissa in WP (C) No. 21276/2020.
In a similar matter, the Principal Bench of this Tribunal has decided the point in OA 3392/2019 (Mahesh Kumar –vs- ESIC) with OA 3394/2019 (Vijendra Kumar Aggarwal –vs- ESIC) on 18.12.2020. The Principal Bench in the said case had referred to the decision of Hon’ble Supreme Court in the case of Ajay Kumar Choudhary –vs- UOI &Ors. [(2015) 7 SCC 5] and the case dealt by Principal Bench in Hari Om –vs- National Capital Territory of Delhi case which was decided on 12.8.2011, and has observed as under –
“6.At the very outset, it would be useful to extract the provision of Rule 10(7) of the CCS (CCA) Rules, 1965. These are as follows: An order of suspension made or deemed to have been made under subrule (1) or (2) of this rule shall not be valid after a period of ninety days unless is extended after review, for a further period before the expiry of ninety days. A bare reading of the above would show that an order made under sub-rule (1) or (2) of Rule 10 of CCS (CCA) Rules, 1965 shall not be valid after a period of 90 days unless it is extended after review for a further period before the expiry of the 90 days. Thus, there are two `components of this requirement, namely, a) there should be a review, and b) there should be an order extending the suspension order. Thus, both these components are required to be done before the expiry of the period of 90 days.”
It was specifically found that there are two components of the requirement as per rules 10(7) of the CCS (CCA) Rules, 1965 namely (a) there should be review and (b) there should be an order extending the suspension period and thus both these components are required to be done before the expiry of period of 90 days.”
By applying the principle of law as mentioned above, in this case this Tribunal finds that the review committee met on 11.02.2019, the order of extension was passed on 18.02.2019, i.e. after expiry of 90 days from the date of deemed suspension. The same having been not done within the period of 90 days from the date of deemed suspension of the applicant w.e.f. 14.11.2018, this Tribunal finds the subsequent extension of suspension period beyond 12.02.2019 and 11.08.2019 to be illegal and not in accordance with law. Accordingly, this Tribunal also finds that further period of extension beyond 11.02.2019 being illegal, the applicant is entitled to all consequential service benefits as per rules. Consequently, the applicant will be deemed to be on duty with effect from 91st day of impugned order of suspension, i.e. w.e.f. 12.02.2019, and shall be entitled to all consequential benefits including difference of pay and allowances and other benefits in accordance with rules. The matter regarding suspension of period w.e.f. 14.11.2018 to 11.02.2019 is to be decided by the respondents in accordance with relevant rules on the subject, taking into consideration all relevant factors. The respondents are directed to take necessary steps to comply with the order within a period of three months from the date of receipt of this order if there is no other legal impediment to do so.
The OA is accordingly allowed to the said extant. There will be no order as to costs.