Allowed

N Kaikho Mao v. State of Manipur

Manipur HC15 Nov 2021WP(C)/379/2021

Case brief

AI extract

What is this about?

Two government officers under suspension challenged the suspension orders and their extensions. The extension of 22.8.2020 was made without the Review Committee's recommendation and beyond the 90-day period. The court held the suspension orders became invalid and could not be continued, set them aside, and directed reinstatement with consequential benefits.

What did the court decide?

Impugned suspension order dated 25.02.2020 set aside; petitioners treated as reinstated with effect from 20.11.2020 with all consequential benefits, to be done within four weeks. No costs.

N Kaikho Mao Vs State of Manipur — Service and Employment | Manipur HC (2021)

¶1

P a g e | 1

¶2

SHAMURAI LATPAM SUSHIL SHARMA

¶3

Digitally signed by SHAMURAILATPAM SUSHIL SHARMA Date: 2021.11.16 14:26:31 +05'30'

¶4

IN THE HIGH COURT OF MANIPUR AT IMPHAL

¶5

W.P.(C) No.688 of 2021

¶6

Shri M. Pheijao Singh, aged about 54 years, S/o late M. Amu Singh of Awang Sekmai Bazar, P.O. & P.S. Sekmai of Imphal West District, PIN-791536 functioning as Deputy Director, TA & Hills (under suspension), Babupara near Kuki Inn, Imphal PIN-795001.

¶7

---- Petitioner

¶8

- VERSUS-

¶9

1. The State of Manipur, represented by the Additional Chief Secretary/ Principal Secretary/ Commissioner/ Secretary, Tribal Affairs & Hills, Government of Manipur, Secretariat Complex, 795001.

¶10

1. The Director, Tribal Affairs & Hills and Scheduled Castes Department, Government of Manipur, PIN 795001.

¶11

----- Respondents.

¶12

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶13

P a g e | 2

¶14

W.P.(C) No.379 of 2021

¶15

N. Kaikho Mao, aged about 59 years, S/O H. Nekhini Mao, resident of Song Song Village, Mao, P.O. & P.S. Mao, Senapati District, Manipur-795150.

¶16

---- Petitioner

¶17

-VERSUS-

¶18

The State of Manipur, through Additional Chief Secretary (Tribal Affairs & Hills), Govt. of Manipur, Secretariat, Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur-795001.

¶19

The Director, Tribal Affairs & Hills, Govt. of Manipur, Office of the Directorate of Tribal Affairs & Hills, Manipur, P.O. & P.S. Imphal, Imphal West District, Manipur795001.

¶20

---- Respondents

¶21

B E F O R E

¶22

HON’BLE MR. JUSTICE MV MURALIDARAN

¶23

For the petitioners :: Mr. A. Romenkumar, Advocate in WP(C) No. 688 of 2021; Mr. BP Sahu, Sr. Advocate in WP(C) No. 379 of 2021. For the respondents :: Mrs. Ch. Sundari, GA in WP(C) No. 688 of 2021; Mr. N. Kumarjit, AG in WP(C) No. 379 of 2021. Dates of hearing & Reserving Judgment & Order :: 28.10.2021 in

¶24

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶25

P a g e | 3

¶26

WP(C) No. 688 of 2021; 27.10.2021 in WP(C) No. 379 of 2021

¶27

Date of Judgment & Order :: 15.11.2021

¶28

JUDGMENT & ORDER (CAV)

¶29

These writ petitions have been filed by the petitioners seeking a writ of certiorarified mandamus to quash the suspension order dated 25.2.2020 and its subsequent extension orders dated 23.5.2020 and 22.8.2020, respectively, and to direct the respondent authorities to reinstate the petitioners to their former posts.

¶30

Since the suspension orders impugned and the grounds for challenge are one and the same, both the writ petitions are disposed of by this common order, albeit they have been reserved on 27.10.2021 and 28.10.2021, respectively.

¶31

The case of the petitioner in W.P.No.688 of 2021 is that while he was working as Deputy Director Tribal Affairs & Hills, he was placed under suspension on 25.2.2020 and subsequently on 23.5.2020, the suspension was extended for three months with effect from 25.5.2020 and, again, on 22.8.2020 the said order of suspension was extended for three months. Such extension expired in the month of November, 2020. According to the petitioner, if

¶32

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶33

P a g e | 4

¶34

further extension is required, it should be made before expiry of the extension that is before the month of November, 2020. Since the extension was not made before the expiry of the earlier extended period, no further extension can now be made violating Rule 10(6) and (7) of the Central Civil Services (CCA) Rules, 1965 and the continuation of the impugned suspension order is illegal and the same is liable to be set aside.

¶35

Similarly, the case of the petitioner in W.P.No.379 of 2021 is that while he was serving as Joint Director of Directorate of Tribal Affairs & Hills, he was placed under suspension by invoking the proviso to sub-rule (1) (a) of Rule 10 of Central Civil Services (CCA) Rules, 1965 vide order dated 25.2.2020. Thereafter, his suspension was extended for another three months with effect from 25.5.2020 on the recommendation of the Review Committee of the Department and again, the same was extended for another three months or for a period till his revocation whichever is earlier vide order dated 22.8.2020. According to the petitioner, every order of suspension has to be reviewed by the competent authority to modify or revoke the suspension before expiry of 90 days from the effective date of suspension on the recommendation of the Review Committee. The specific case of the petitioner is that unless the order of suspension is revoked or extended for further period by

¶36

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶37

P a g e | 5

¶38

issuing necessary order on the recommendation of the Review Committee within 90 days as provided under sub-rule (6) of Rule 10, such order of suspension ceases to exist after expiry of 90 days as provided under sub-rule (7) of Rule 10. In the case of the petitioner, the said period of 90 days expired on 20.11.2020 and as such, the impugned order of suspension ceases to exist with effect from 21.11.2020 as the order of suspension has neither been reviewed nor revoked thereafter. It is also the case of the petitioner that he has not been allowed to enjoy the subsistence allowance since his suspension.

¶39

The respondents in W.P.No.379 of 2021 filed affidavitin-opposition stating that in connection with the withdrawal of money, a disciplinary proceeding against the petitioner has been contemplated and he has been kept under suspension vide order dated 25.2.2020 and thereafter, vide order dated 10.6.2020, articles of charges were framed in connection with the misappropriation of Rs.29,67,61,143/- belonging to Tribal Affairs and Hills Department. During the course of departmental proceedings, on 16.5.2020, in order to review the suspension, a Review Committee was constituted and on the recommendation of the Review Committee, the suspension period of the petitioner was extended for another period of three months. By the subsequent order dated 22.8.2020,

¶40

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶41

P a g e | 6

¶42

the suspension period was again extended for another three months or till revocation whichever is earlier. As such, the suspension order of the petitioner was extended till the revocation of the same.

¶43

It is stated in the affidavit-in-opposition filed by the respondents that a new inquiry authority was required to be appointed for completing the departmental enquiry in view of the transfer and posting of the existing inquiry authority. In such situation, by the order dated 28.9.2021, one Devesh Deval, IAS was appointed as the inquiring authority for holding the inquiry into the charges framed against the petitioner Kaikho Mao and another. It is also stated that the charges framed against the petitioner are serious in nature which may have a serious repercussion to the TA & Hills Department and pecuniary loss of the State exchequer and if the petitioner is reinstated as Joint Director in the Department, then there may not be free and fair departmental inquiry. Hence, prayed for dismissal of the writ petition.

¶44

No affidavit-in-opposition has been filed by the respondents in W.P.No.688 of 2021.

¶45

Assailing the impugned suspension order, Mr. A. Romenkumar, the learned counsel for the petitioner in W.P.No.688

¶46

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶47

P a g e | 7

¶48

of 2021 submitted that on 25.2.2020 the petitioner Pheijao Singh was placed under suspension pending departmental inquiry and that on 23.5.2020, the said suspension order was extended for three months on the recommendation of the Review Committee. Thereafter, on 22.8.2020, the suspension order was again extended for another three months and the said extension is made without the recommendation of the Review Committee, however, the same expired on 19.11.2020.

¶49

Mr. A. Romenkumar, the learned counsel further submitted that under Rule 10(7) of the CCS (CCA) Rules, suspension order issued under Rule 10(1) or 10(2) shall not be valid after a period of 90 days unless it is extended after review for a further period before the expiry of 90 days.

¶50

The learned counsel next submitted that the extension of suspension dated 22.8.2020 was made without the recommendation of the Review Committee and secondly, before the expiry of 90 days, the suspension order is to be extended. But in the case on hand, no such extension of suspension was made so far. Thirdly, after the expiry of 90 days, the suspension order is a dead letter and cannot be revived. In support of the said submission, learned counsel placed reliance upon the following decisions:

¶51

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶52

P a g e | 8

¶53

(i) Okram Ibomcha Singh (Dr.) v. State of

¶54

Manipur and others, (2018) 2 NEJ 517

¶55

(Man.).

¶56

(ii) Takhellambam Bangkabihari Singh v. State of Manipur and others, 2021 (2) MnLJ 131.

¶57

(iii) Union of India and others v. Dipak Mali, (2010) 2 SCC 222.

¶58

(iv) Ajay Kumar Choudhary v. Union of India, through its Secretary and another, (2015) 7 SCC 291.

¶59

Similarly, it is the submission of Mr. BP Sahu, the learned senior counsel for the petitioner in W.P.No.379 of 2021 that the petitioner Kaikho Mao was suspended on 25.2.2020 while he was performing duty as Joint Director of Directorate of TA & Hills Department and his suspension was extended for another three months with effect from 25.5.2020 on the recommendation of the Review Committee and that vide order dated 22.8.2020 again the suspension was extended for another three months or till its revocation whichever is earlier.

¶60

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶61

P a g e | 9

¶62

Mr. B.P. Sahu, the learned senior counsel further submitted that the order of suspension has to be either reviewed or revoked on the recommendation of the Review Committee constituted for the purpose before expiry of 90 days from the date of placing under suspension of the employee or from the date of last extension and if the said order of suspension is not reviewed and/or extended for further period as provided under Rule 10(6), the order of suspension ceases to exist after the expiry of 90 days in view of Rule 10(7) of CCS (CCA) Rules. In the instant case, the respondent authorities failed to extend the term of suspension of the petitioner or revoke the said order as per the prescribed procedure, but extended the time by another three months vide order dated 22.8.2020 and that thereafter, no order for extension of the suspension was issued till date and thus, the impugned suspension orders cease to exist after the expiry of 90 days i.e., after 20.11.2020.

¶63

The specific argument of the learned counsel for the petitioner is that non-revocation of the order of suspension though the order of suspension was not extended within the period of 90 days is very frequent in the State of Manipur for which number of writ petitions of such category are filed by the persons whose order of suspension have not been revoked for a long time by assailing

¶64

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶65

P a g e | 10

¶66

the order of suspension in view of the provisions of Rule 10(6) and (7) of the CCS (CCA) Rules. In support, the learned counsel placed reliance upon the judgment and order of a Division Bench of Gauhati High Court dated 30.7.2021 passed in Writ Appeal No.28 of 2021 .

¶67

Per contra, Mr. N. Kumarjit, the learned Advocate General appearing for the respondent State, submitted that the suspension order of the petitioners was extended again for another three months or till revocation whichever is earlier by the Review Committee on 22.8.2020. The main argument of the learned Advocate General is that the State Government has issued the suspension order in exercise of the power conferred under Rule 10(5)(b) to the effect that the Government servant shall continue to be under suspension until the termination of all or any of the proceedings.

¶68

Mr. N. Kumarjit, the learned Advocate General further submitted that the writ petitions are liable to be dismissed on the ground of suppression, misstatement or distortion of relevant facts. He would submit that the Government had constituted a Review Committee to review the suspension of the petitioners and had recommended for extension of the suspension period of the petitioners from time to time and, therefore, there is no merit in the

¶69

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶70

P a g e | 11

¶71

argument of the learned counsel for the petitioners that no Review Committee recommended for extension of the suspension order.

¶72

This Court considered the submissions made by learned counsel appearing on either side and also perused the material available on record.

¶73

The meat of the matter revolves around Rule 10 of the Rules, 1965 and in particular, of sub-rule (6) read with sub-rule (7) on the one hand and sub-rule (5)(b) on the other. In order to appreciate the contentions of the respective learned counsel, Rule 10 of the CCS (CCA) Rules is reproduced herein below:-

¶74

“10. Suspension

¶75

(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 -

¶76

(a) where a disciplinary proceeding against him is contemplated or is pending; or

¶77

(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

¶78

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶79

P a g e | 12

¶80

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

¶81

Provided that, except in case of an order of suspension made by the Comptroller and AuditorGeneral in regard to a member of the Indian Audit and Accounts Service in regard to as 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.

¶82

(2) A Government servant shall be deemed to have been place under suspension by an order of Appointing Authority -

¶83

(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 fortyeight hours;

¶84

(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.

¶85

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶86

P a g e | 13

¶87

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.

¶88

(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.

¶89

(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

¶90

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶91

P a g e | 14

¶92

Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

¶93

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.

¶94

(5)(a) Subject to the provisions contained in subrule (7), any 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.]

¶95

(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 of all or any of such proceedings.

¶96

(c) An order of suspension made or deemed to have been made under this rule may at any time

¶97

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶98

P a g e | 15

¶99

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.

¶100

(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.

¶101

(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.

¶102

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

¶103

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶104

P a g e | 16

¶105

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."

¶106

From the submissions raised by the respective learned counsel, the following points fall for consideration:

¶107

(1) Whether the orders of suspension impugned in these writ petitions are valid in the eye of law?

¶108

(2) In the absence of any review before the expiry of 90 days, whether the extension of the suspension period by the respondent authorities vide order dated 22.8.2020 is legally valid?

¶109

(3) Whether the respondent authorities are entitled to keep the petitioners under suspension for a prolonged period by violating Rule 10(6) and Rule 10(7) of the CCS (CCA) Rules, 1965?

¶110

Prima facie , it appears that both the writ petitions are filed challenging the prolonged suspension. Though initially the impugned suspension was reviewed, the later extension dated 22.8.2020 was issued without the recommendation of the Review

¶111

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶112

P a g e | 17

¶113

Committee. The above said facts need to be discussed in this order and, accordingly, this Court proceeds to deal with the said aspect of the matter.

¶114

A disciplinary proceeding has been contemplated against the petitioners in connection with the malversation of an amount of Rs.29,67,61,143/- belonging to the Tribal Affairs and Hills Department and as such in exercise of the powers conferred by Rule 10(1)(a) of CCS (CCA) Rules, the petitioners were placed under suspension on 25.2.2020. At the time of issuing the impugned suspension order, the petitioner in W.P.No.688 of 2021 was serving as the Deputy Director of Directorate of TA & Hills Department while the petitioner in W.P.No.379 of 2021 was serving as the Joint Director of the same department. Thereafter, on the recommendation of the Review Committee of the Department, the suspension order was extended for three months with effect from 25.5.2020. The suspension order dated 25.2.2020 and the extension order dated 23.5.2020 have been issued to the petitioners separately by the Additional Chief Secretary (TA & Hills), Government of Manipur. Thereafter, on 22.8.2020, the Additional Chief Secretary (TA & Hills), Government of Manipur, passed an order extending the period for another three months or till their revocation whichever is earlier.

¶115

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶116

P a g e | 18

¶117

For proper appreciation, the extension order of the Additional Chief Secretary (TA & Hills) is extracted hereunder:

¶118

“No.1/64/2020-TA&Hills (Pt:4): Whereas Shri N.Kaikho Mao, Joint Director (TA&H), Manipur and Shri M.Pheijao Singh, Deputy Director (TA&H), Manipur were placed under suspension vide Order No.1/64/2020TA&HILLS dated 25^th February, 2020.

¶119

2. Whereas, Shri R.K.Dinesh Singh (IAS), Commissioner, Departmental Enquiry, Manipur has been appointed as the Inquiry Authority to inquire into the charges framed against them.

¶120

3. Now the Governor of Manipur is pleased to order that the suspension period of Shri N.Kaikho Mao, Joint Director (TA&H), Manipur and Shri M.Pheijao Singh, Deputy Director (TA&H), Manipur is extended for another (three) months or till their revocation whichever is earlier.”

¶121

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶122

P a g e | 19

¶123

Admittedly, on 22.8.2020, the Additional Chief Secretary (TA&H) has issued further extension of suspension order dated 25.2.2020 without the recommendation of the Review Committee. In this regard, sub-rule (6) of Rule 10 of the CCS (CCA) Rules provides that 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. Thus, it is clear that 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.

¶124

It is apposite to note that under sub-rule (7) of Rule 10 of CCS (CCA) Rules, suspension order issued under sub-rule (1) or (2) of Rule 10 shall not be valid after a period of 90 days unless it is extended after review for a further period before the expiry of 90 days.

¶125

The provisions of Rule 10(6) and (7) of CCS (CCA) Rules are lucid and it postulates that an order of suspension made or deemed to have been made under the rules shall be reviewed by

¶126

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶127

P a g e | 20

¶128

the competent authority to modify or revoke the suspension, before expiry of 90 days from the date of order of suspension and if the said order of suspension is not reviewed/extended for further period as provided under sub-rule (6), the order of suspension shall cease to exist after expiry of 90 days in view of proviso to sub-rule (7) of Rule 10 of CCS (CCA) Rules.

¶129

In the case on hand, by the order dated 22.8.2020, the Additional Chief Secretary has simply extended the period for another three months or till their revocation whichever is earlier and the said extension of three months expired on 19.11.2020.

¶130

At this juncture, Mr. N. Kumarjit, the learned Advocate General submits that the suspension order of the petitioner was extended for another three months or till revocation, whichever is earlier, by the Review Committee vide order dated 22.8.2020 and therefore, the question of further extension does not arise. The said argument of the learned Advocate General cannot be countenanced since sub-rule (7) of Rule 10 clearly states that an order of suspension made or deemed to have been made shall not be valid after a period of ninety days unless it is extended after review. Thus, the period can be extended by the concerned authority only after review made by the constituted Review Committee. In the instant case, it is clear that the extension of

¶131

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶132

P a g e | 21

¶133

suspension order dated 22.8.2020 was made without the recommendation of the Review Committee and also there is no indication in the order dated 22.8.2020 as to the convening of any meeting or any discussion held in such regard.

¶134

27. In Okram Ibomcha Singh (supra), this Court held as

¶135

under:

¶136

“6. It is not in dispute that Rule 10(1) confers power upon the appointing authority or any other competent authority mentioned therein to issue order of suspension against a Government servant but it may be noted that the order of suspension can be issued only in respect of three circumstances - one, where a disciplinary proceeding against him is contemplated or is pending; two, where he has engaged himself in activities prejudicial to the interest of the security of the State and three, where a case against him in respect of any criminal offence in under investigation, inquiry or trial. Sub-rule (6) provides that an order of suspension shall be reviewed by the competent authority either to modify or revoke the same before the expiry of ninety days from the effective date of the order of suspension. Such a review shall be done only on the recommendation of the Review Committee constituted for that purpose. Subsequent

¶137

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶138

P a g e | 22

¶139

reviews shall be made before the expiry of extended period of suspension and extension of suspension shall not be for a period exceeding one hundred eighty days at a time. Sub-rule (7) provides that an order of suspension made under sub-rule (1) or (2) shall not be valid after the expiry of ninety days unless it is extended after review for a further period before the expiry of ninety days. Subrule (5)(b) confers power upon the competent authority to direct that the government servant shall continue to be under suspension until the termination of all or any of such proceedings. This power can be exercised by the competent authority after two conditions being fulfilled - one, where a Government servant is suspended or deemed to have been suspended in connection with a disciplinary proceeding or otherwise and two, where any other proceeding is commenced against him during the continuance of that suspension. For exercising the power under the sub-rule (5)(b), reasons are to be recorded by the competent authority.”

¶140

In Takhellambam Bangkabihari Singh (supra), this

¶141

Court held:

¶142

“12. As the last extended period of suspension of the petitioner expired on 15.12.2020 and as the authority did not taken up any steps for

¶143

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶144

P a g e | 23

¶145

extending the period of suspension of the petitioner thereafter, this Court is constraints to hold that by operation of law as provided under Rule 10(7) of the CCS (CCA) Rules, the impugned suspension order is no longer valid and the petitioner cannot be placed under suspension any longer.”

¶146

29. In Dipak Mali (supra), the Hon’ble Supreme

¶147

Court held:

¶148

“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.

¶149

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶150

P a g e | 24

¶151

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.”

¶152

In Ajay Kumar Choudhary (supra), the Hon’ble Supreme Court held:

¶153

“ 11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not

¶154

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶155

P a g e | 25

¶156

based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.

¶157

12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the

¶158

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶159

P a g e | 26

¶160

accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of Common Law Jurisprudence, antedating even the Magna Carta of 1215, which assures that — “We will sell to no man, we will not deny or defer to any man either justice or right.” In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.

¶161

21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any

¶162

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶163

P a g e | 27

¶164

person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.”

¶165

The learned counsel for the petitioners also by placing reliance upon the orders of this Court in W.P.(C) No.1032 of 2014, dated 11.3.2015 and W.P.(C) No.838 of 2016, decided on 27.1.2020 submit that an order of suspension made under Rule 10 shall be reviewed by the competent authority before the expiry of 90 days. In the aforesaid decisions, this Court held that “an order of suspension made under the Rule shall be reviewed by the

¶166

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶167

P a g e | 28

¶168

authority which is competent to modify or revoke the suspension order before the expiry of 90 days from the effective date of suspension and only on the recommendation of the Review Committee constituted for the purpose, the order of suspension can be extended not exceeding 180 days at a time.”

¶169

From the above, it is clear that an order of suspension made or deemed to have been made by the competent authority can either be extended under sub-rule (6) or continued under subrule 5(b). As regards the sub-rule 5(b), an order of suspension can be continued by the competent authority only when the following two conditions are fulfilled:

¶170

(i) Where a Government servant is suspended or deemed to have been suspended in connection with a disciplinary proceedings or otherwise; and

¶171

(ii) Where any other proceeding is commenced against him during the continuance of that suspension. For exercising the power under sub-rule 5(b), reasons are to be recorded by the competent authority.

¶172

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶173

P a g e | 29

¶174

Thus, the first condition stipulates that the order of suspension shall be in connection with any disciplinary proceeding or otherwise. The expression “otherwise” is significant and refers to an order of suspension made not in connection with a disciplinary proceeding, but made under sub-rule (1) (aa) or (b) of Rule 10. The second condition talks about any other disciplinary proceeding which is commenced against the Government servant during the continuance of that suspension. The expression “other” indicates that the proceeding mentioned therein is different from and shall be in addition to the disciplinary proceeding mentioned in the first condition. The expression “continuance of that suspension” has significant meaning to the effect that while the competent authority exercises power under sub-rule 5(b) for the order of suspension to be continued by it, it ought to have been in continuance of an original order of suspension. Thus, the order of suspension which has become invalid under sub-rule (7) of Rule 10, cannot be continued under sub-rule (5)(b). In other words, an order of suspension which is not valid, cannot be continued by the competent authority.

¶175

The conjoint reading of sub-rule (7) of Rule 10 and sub-rule 5(b) of Rule 10 of CCS (CCA) Rules makes it clear that an order of suspension which has become invalid under sub-rule (7)

¶176

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶177

P a g e | 30

¶178

for want of extension within time as prescribed therein, cannot be continued by the competent authority in exercise of power under sub-rule 5(b) of Rule 10.

¶179

The wordings in sub-rule (7) are simple and require no interpretation at all in the sense that it simply provides that an order of suspension, if not reviewed and extended for further period before the expiry of ninety days, shall not be valid. In the case on hand, the petitioners were placed under suspension on 25.02.2020 and since the review had not been conducted while extending for three months vide order dated 22.08.2020 as required under the provisions of sub-rule (7), the extension order dated 22.8.2020 has become invalid.

¶180

The decision of the Hon’ble Supreme Court in the case of Dipak Mali (supra) emphatically lays down that if the review had not been conducted within 90 days from the date of suspension, it becomes invalid after 90 days. Neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension.

¶181

Admittedly, in the case on hand, the first extension dated 23.5.2020 was made on the recommendation of the Review

¶182

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶183

P a g e | 31

¶184

Committee giving effect from 25.5.2020, however, the subsequent extension vide orders dated 22.8.2020 was made without the recommendation of the Review Committee. Since the subsequent extension dated 22.8.2020 is not based on the Review Committee’s recommendation, the extension orders dated 22.8.2020 do not hold water.

¶185

Admittedly, the extension of suspension issued by the order dated 22.8.2020 for three months expired in the month of November, 2020 and no further extension based on the recommendation of the Review Committee had been issued by the competent authority so far. The rule is that before the expiry of 90 days, the suspension order is to be extended. But in the present case, as stated supra, no such extension of suspension period was made.

¶186

The reason for non-extension stated by the respondent authorities that since the suspension orders of petitioners were extended till the revocation of the same and that the question of further extension would not arise, runs counter to the statutory provision inasmuch as such extension was granted without the recommendation of the Review Committee. Thus, as rightly argued by the learned counsel for the petitioners, after the

¶187

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶188

P a g e | 32

¶189

expiry of 90 days the suspension orders in the case on hand are nothing but dead letters and cannot be revived.

¶190

The learned counsel for the petitioners submit that the prolonged suspension was against the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhuary (supra), which held that:

¶191

“C urrency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension.”

¶192

As per the dictum laid down by the Hon’ble Supreme

¶193

Court in the case of Ajay Kumar Choudhuary (supra), the suspension order requires to be reviewed before expiry of 90 days and the subsequent review must also be made before expiry of extended period of suspension and if the said exercises are not undertaken, such suspension order will be liable to be set aside.

¶194

It is to be noted at this stage that on 5.7.2021, the petitioner in W.P.No.688 of 2021 submitted a representation to the

¶195

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶196

P a g e | 33

¶197

Additional Chief Secretary (TA & Hills) to revoke the impugned suspension and the subsequent extension and also demanded for performance of duty, but the same has not been considered by the said authority till date.

¶198

Taking through the said representation of 5.7.2021, the learned counsel for the petitioner in W.P.No.688 of 2021 submitted that a special audit has been carried by the Special Audit Team constituted in the Directorate of Local Fund Audit to carry out inspection to detect the fraudulent withdrawal of money in the Department of TA & Hills and that the Special Audit Team has carried out full inspection with effect from 4.2.2021 and submitted its finding on 24.6.2021 and at the conclusion of the finding at Clause (c), it has been clearly recommended to revoke the suspension order of the petitioner. Thus, the learned counsel prayed that in view of the recommendation made by the Special Audit Report, coupled with the provisions of the Rules of 1965 and also the decisions of the Hon’ble Supreme Court referred to above, the suspension order dated 25.2.2020 and its subsequent extensions are to be revoked under Rule 14 of the CCS (CCA) Rules without prejudice to the pending departmental enquiry as a part of the compliance of the recommendation in letter and spirit as the other recommendation made by the Special Audit Team has

¶199

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶200

P a g e | 34

¶201

been complied with. The receipt of the said representation has not been denied by the respondent authorities. Since the respondent authorities failed to act on the representation dated 5.7.2021, the petitioner has approached this Court. However, the merits of the matter cannot be decided at this stage since as stated supra, whether the prolonged suspension of the petitioners is valid or not is the question. As held supra, the extension made without the recommendation of the Review Committee cannot stand in the eye of law.

¶202

It is well settled that the protracted period of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be.

¶203

It is also well settled that the suspended person is suffering the ignominy of insinuation; the scorn has to endure the excruciation even before he is formally charged with same misdemeanors, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or inequity.

¶204

This Court is of the view that the present writ petitions are squarely covered by the law laid down by the Hon'ble Supreme

¶205

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶206

P a g e | 35

¶207

Court in the cases of Dipak Mali (supra) and Ajay Kumar Choudhary (supra).

¶208

As the last extended period of suspension of the petitioners expired on 22.08.2020 and as the concerned authority did not take up any steps for extending the period of suspension of the petitioners thereafter based on the recommendation of the Review Committee, this Court is constrained to hold that by operation of law as provided under sub-rule (7) of Rule 10 of the CCS (CCA) Rules, the impugned suspension orders dated 25.2.2020 issued against the petitioners are no longer valid and resultantly, the petitioners cannot be placed under suspension any longer.

¶209

Qua non-grant of subsistence allowance to the petitioner in W.P.No.379 of 2021 is concerned, it is undoubtedly clear that as per provisions of FR 53, a Government servant under suspension shall be entitled to subsistence allowance at an amount equal to the salary which the Government servant would have drawn if he had been on leave on half average pay or half pay and in addition, Dearness Allowance, if admissible on the basis of such leave salary.

¶210

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶211

P a g e | 36

¶212

The argument advanced by the learned Advocate General is that since the petitioner had not furnished the certificate to the effect that he was not employed anywhere during the period of suspension, the subsistence allowance could not be given to him. If that be so, the petitioner in W.P.No.379 of 2021 can be directed to furnish such certificate and on receipt thereof, the respondent authorities shall grant the subsistence allowance to him.

¶213

In view of the foregoing discussion, this Court finds merit in the submissions of the petitioners and the impugned suspension orders dated 25.2.2020 are accordingly liable to be set aside and the writ petitions are to be allowed.

¶214

In the result,

¶215

a) both the writ petitions are allowed.

¶216

b) the impugned suspension order dated 25.02.2020 is set aside.

¶217

c) the respondents authorities shall treat that the petitioners have been reinstated in service with effect from 20.11.2020 with all consequential benefits.

¶218

d) the said exercise shall be done within a period of 4 (four) weeks from the date of receipt of a copy of this order. No costs.

¶219

W.P.(C) No. 688 of 2021 and W.P.(C) No. 379 of 2021

¶220

P a g e | 37

¶221