Delhi Urban Shelter Improvement Board v. G L Gupta

1. This appeal impugns the order of the learned Single Judge dated 17.09.2013 passed in W.P. (C) 197/2012 directing the appellant to pay the entire salary along with interest @ 5% per annum from the date from which the amounts were actually payable. The respondent was issued a suspension notice on 29.09.2010, it was guided by the CCS Rules but the said Rules were yet to be adopted by the appellant/employer.

2. Other than the aforesaid “guidance”, there is nothing on the record to show under which rules the suspension was made. The respondent/employee was being paid 50% of the subsistence allowance. Subsequently, the appellant adopted the CCS Rules on 20.06.2011. It provides that within 90 days of the suspension order, the Suspension Review Committee is to look into and to review the matter and take a decision apropos continuance or dismissal of the continuance. No such review was done. Logically, then continuation of the suspension beyond 90 days was without authority. The respondent/employee has superannuated on 31.10.2011.

3. The impugned order has reasoned inter alia as under:-

2. Though, the first relief which is claimed as per the relief clause in the writ petition, is the challenge to the suspension order dated 29.9.2010 itself, however what is argued before me on behalf of the petitioner is that the petitioner questions the continuation of suspension after 90 days. inasmuch as no order was passed within a period of 90 days either by the review committee or by the appropriate authority extending the suspension. I have allowed the petitioner to so argue as there exists the requisite averments in the writ petition. It is argued that when the second order of suspension dated 20.6.2011 was passed, review committee had not recommended for continuing of the suspension and review committee only so recommended on the date of retirement of the petitioner vide order dated 31. 10.2011.

3. At this stage, it would be relevant to reproduce the relevant rule pertaining to suspension with its sub-Rules and the same reads as under:-

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial: Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an 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. xxxx xxxx xxxx xxxx (5)(a) Subject to the provisions contained in sub-rule (7), an 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. (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.

(c) An order of suspension made or deemed to have been made under this rule may at any time 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. (6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority 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-rules (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 from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."

4. A reference to aforesaid sub-Rules and more importantly sub-Rules (6) and (7) show that for continuation of the suspension, suspension has to be reviewed by the authority which is competent to modify or revoke the suspension before 90 days of the order of suspension, and that also there has to exist the recommendation of the review committee constituted for the purpose. In the present case, admittedly no fresh order of suspension was passed within 90 days of passing of the first order dated 29.9.2010. Therefore, the period of suspension in terms of the order dated 29.9.2010 will come to an end after 90 days of passing of the order dated 29.9.2010 viz, on 27.12.2010. A reference to the second order of suspension dated20.6.20 11 shows that admittedly there is no reference to any orders passed by the suspension review committee enabling passing of this order dated 20.6.2011. Also, no copy of the order of the suspension review committeeentitling the competent authority to pass the suspension order dated 20.6.2011 has been filed before me.

4. There is nothing on the record to show that as to which rules governed the suspension of the respondent/employee. The payment of only 50% as subsistence allowance was an arbitrary decision, it was not founded in any Rules. It could not be sustained. In so far as the CCS Rules were adopted for the suspension, the same Rules should have been followed for grant of the requisite percentage of subsistence allowance as well and extension of suspension too should have been considered within 90 days by the Suspension Review Committee.