Senior Superintendent of Post Offices Vs. B. Ramachandran [Kerala High Court, 08-04-2016]

Whether an order of suspension that has not been extended within the period of 90 days stipulated by Rule 10(6) of the Central Civil Services (Classification Control and Appeal) Rules, 1965 is valid or not.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.SURENDRA MOHAN & P.V ASHA, JJ.

W.P(C) Nos.13530 of 2008, 12155 of 2010, 13306 of 2010 and 18997 of 2010

Dated this the 8th day of April, 2016

AGAINST THE ORDER IN OA 2/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

PETITIONERS

1. THE SENIOR SUPERINTENDENT OF POST OFFICES, ALUVA DIVISION, ALUVA.

2. THE DIRECTOR OF POSTAL SERVICES, CENTRAL REGION, KOCHI.

3. UNION OF INDIA, REPRESENTED BY THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM.

BY ADVS.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.M.RAJEEV, ADDL.CGSC SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

RESPONDENT

B.RAMACHANDRAN

R,R1 BY ADV. SRI.P.C.SEBASTIAN R,R1 BY ADV. SRI.MARTIN G.THOTTAN

JUDGMENT

Surendra Mohan, J.

The common question that arises for determination in these cases is whether an order of suspension that has not been extended within the period of 90 days stipulated by

# Rule 10(6) of the Central Civil Services (Classification Control and Appeal) Rules, 1965

(hereinafter referred to as `Rules’ for short), is valid or not. Though separate orders of the Central Administrative Tribunal (`C.A.T’ for short) are challenged in these Writ Petitions, they are considered and disposed of together, for the reason that the question that arises for determination is the same. W.P(c) No.13530 of 2008 is treated as the leading case. Reference to the factual details as well as the parties are as narrated in the said Writ Petition.

2. The petitioners are the respondents in O.A No.2/2008 of the C.A.T, Ernakulam Bench. The respondent, who was the applicant in the O.A, had invoked the jurisdiction of the C.A.T, challenging the order extending the period of his suspension. Similar orders were challenged in the other O.As, from which the other Writ Petitions arise.

3. The applicant while working as Sub Post Master, Mudavoor Sub Post Office, Aluva was placed under suspension w.e.f 22.5.2006 in contemplation of disciplinary action under Rule 10 of the Rules. His suspension was extended thereafter. Though he had challenged the extension of his suspension in appeal, his appeal was rejected. Therefore he approached the C.A.T contending that, the extension of his suspension was in violation of the statutory provisions and invalid.

4. The O.A was contested by the petitioners herein. According to them, the suspension was made in contemplation of disciplinary proceedings against the respondent herein for misappropriation of an amount of Rs.50,000/- from a savings bank account in the name of one Smt.K.N.Kamalakshy Amma. A crime had already been registered in connection with the said incident. According to the petitioners, the Suspension Review Committee, that had been constituted, had met on 18.8.2006 before the expiry of the period of 90 days. The Committee had reviewed the suspension order of the respondent and had decided to extend the same. The drawback was that, Annexure- A4 order extending the period of suspension was communicated only on 13.10.2006.

5. The C.A.T considered the respective contentions, found that the orders extending the period of suspension had been issued in violation of the Rules and therefore, allowed the O.A setting aside the orders of extension. The petitioners challenge the said order, Ext.P1 in these Writ Petitions. Similar orders were passed by the C.AT in the other cases also.

6. We have heard the learned Assistant Solicitor General of India and Sri T.Sanjay, the Central Government Counsel, who appears for the petitioners in the Writ Petitions as well as Advocate Martin G.Thottam and Advocate P.V.Surendranath, who appear for the respondents in these cases.

7. The question that arises for consideration, as already noticed above, is regarding the manner in which the stipulations in Rule 10 of the Rules are to be understood. For the sake of convenience, Rule 10(6) and (7) are extracted hereunder:

# 10. Suspension

(1) xxx xxxx xxx xx xxxx xxxx xxxx xxx xxxx xxx xxx xxx xxx

(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 date of order 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) Notwithstanding anything contained in sub- rule (5) (a), 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.”

An examination of the above provisions shows that, an order of suspension made or deemed to have been made under the said Rule is required to be reviewed by the authority who is competent to modify or revoke the suspension before the expiry of 90 days from the date of the order of suspension. The requirements of the provision can be summarised as follows:

An order of suspension made or deemed to have been made under the Rules:

(i) shall be reviewed by the authority which is competent to modify or revoke the suspension;

(ii) before the expiry of 90 days from the date of the order of suspension;

(iii) on the recommendation of the review committee constituted for the purpose;

(iv) and orders shall be passed;

(v) either extending or revoking the suspension.

Thus the above provision stipulates a review of the order of suspension within a period of 90 days, by the authority competent to modify or revoke the suspension. Such review has to be on the recommendation of the Review Committee constituted for the purpose. The provision further stipulates that, orders extending or revoking the suspension shall follow. It is clear from the provision that, the role of the Review Committee constituted for the purpose is only recommendatory in nature. It is the competent authority who has to review the order of suspension and pass orders on the basis of the recommendation of the Review Committee, within the period of 90 days that is stipulated therein.

8. The contention of the petitioners is that, since the Review Committee had met and decided to continue the suspension within the period of 90 days stipulated by the Rules, it was sufficient that, the order extending the suspension was passed at a later point of time, even after the expiry of the period of 90 days that has been stipulated. In the present case it is pointed out that, the Review Committee had decided on 18.08.2006 to extend the period of suspension, but the formal order extending the suspension was passed only on 13.10.2006. The delay in passing the formal order would not affect the validity of the extension of the order of suspension in any manner, it is contended by the petitioners.

9. However, we are not prepared to accept the above interpretation that is attempted to be placed on the Rule. As already noticed above, the role of the Review Committee constituted under the Rule is only to recommend whether the suspension was to be continued or not. The learned Assistant Solicitor General of India has put forward a contention that, the authority competent to suspend the employee was also a member of the Review Committee. However, we are not satisfied that the presence of the authority competent to suspend the employee on the Review Committee would improve matters in any manner, as the role of the Review Committee is only recommendatory in nature. As per the Rule, the duty to review the order of suspension within the period of 90 days that is stipulated and to pass orders either extending or revoking the suspension on the basis of the recommendation of the Review Committee, is cast on the authority competent to suspend the employee. Therefore, an omission on the part of the said authority to pass orders within the time limit stipulated would nullify the order of suspension. The above consequence is clearly set out in Rule 10(7), wherein it has been specifically provided that the order of suspension “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”.

10. The interpretation that the petitioners want to place on the relevant Rules is not acceptable for a further reason that, the power of suspension has been conferred on the competent authority, specifying the manner in which the same has to be exercised, obviously considering the gravity of the consequences the exercise of such power would have on the career of the employee. When the Rule stipulates that, the power should be exercised only in the manner stipulated therein, no other mode of exercise is acceptable. Since the Rule does not permit the authority competent to suspend an employee and to pass orders even after the expiry of the period of 90 days, no such power can be conferred on the authority by the process of interpretation that is canvassed before us. Therefore, we are not inclined to accept the said contention.

11. We notice that, we are supported in our above understanding of Rule 10(6) and (7) of the Rules by the decision of the Apex Court in

# Union of India and Others v. Dipak Mali [2010(2) SCC 222].

Altamas Kabir, J. (as he then was) has after considering the Rules, held as follows in paragraph 10 thereof:

“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 R.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.”

The result of the above discussion therefore is that, unless an order of suspension is reviewed by the authority competent to suspend an employee, on the recommendation of the Review Committee constituted for the purpose and unless orders extending the period of suspension are passed within the period of 90 days stipulated therein, the order of suspension would not be valid. In other words, both the stipulations, namely, review of the suspension order by the competent authority as well as passing of the order either extending or revoking the period of suspension, are necessary to be satisfied within the period of 90 days stipulated by Rule 10(6).

12. In the above view of the matter, we find that the orders of the C.A.T do not suffer from any infirmity warranting an interference therewith. Hence the Writ Petitions fail and are accordingly dismissed.

The learned counsel appearing for the petitioners submit that, the orders of the C.A.T had been stayed by this Court during the pendency of these proceedings. Disciplinary proceedings against the respondents in these cases are already completed. If that be so, we clarify that they would be entitled only to the monetary benefits consequent to the orders passed by the C.A.T in these cases less the subsistence allowance, if any, drawn or received by them.

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