Citation Codes

Neutral Citations

2012 BHC 323

Equivalent Citations

citation codes

Case Number

W.P No. 7071 of 2010

Advocates

For petitioners : Nitin Deshpande, A.G.P
For respondent No. 1 : R.R Shetty

Judges

A.M Khanwilkar
R.Y Ganoo, JJ.

Acts

SECTION 3 ALL INDIA SERVICES ACT 1951
provision of Rule 10 of the Central Civil Services (CCA) Rules, 1965.
clauses (a) and (c) of sub-rule (7) of Rule 3 of the said Rules,
provision in Rule 7(a) and (c) read with Rule 8(a)
PREVENTION OF CORRUPTION ACT
provision of Rule 3(8) of the said Rules,
substituted.(d) in sub-rule (8), in clause (d),
sub-rule (3) of Rule 3 of the said Rules,
sub-rule (8) of Rule 3 of the said Rules.
Central Government.;(b) after sub-rule (1A),
clause (b) of Rule 3(8) of the said Rules,
clause (c) or (d) of sub-rule (8) of Rule 3
provision in Rule 3 of the said Rules,
Rule 3 and in particular sub-rule (3)
rule 3,(a) in sub-rule (1), in clause (b),
sub-rule (8) of Rule 3 of the Rules
Rule 3(7)(a) read with Rule 3(7)(c)
provision of sub-rule (8) of Rule
Rule 3 of the said Rules. Rule 3
Appeal) Amendment Rules, 2009.(2)
Rule 3(1) of the said Rules.
Rule 3(3) of the said Rules,
Rule 3(8) of the said Rules
Rule 3(4) of the said Rules,
Rule 3 of the said Rules.
sub-rule (8)(c) of Rule 3
clause (c) of sub-rule (8)
sub-rule (8), in clause (c),
clause (b) of sub-rule (7),
clause (a) of sub-rule (8)
Rule 3(3) of the Rules.
rule 3 sub-rule (1B), (1C)
sub-rule (3) of Rule 3
sub-rule (8) of Rule 3,
Rule 3(3) of the Rule
provision of Rule 3(8)
Sub-rule (2) of Rule 3
clause (b) of Rule 3(8),
sub-rule (1) of Rule 3,
Rule 3 of the Rules,
provision of Rule 3
clauses of Rule 3
Rule 3(7) and 3(8).
sub-rule (7) or (8)
sub-rule (3).26.
sub-rule (8).34.
sub-rule (8).(c)
2009, Rule 3
sub-rule (7),
sub-rule (3).
sub-rule (4)
sub-rule (1)
Sub-rule (9)
sub-rule (8).
Rule 3(8)
Rule 3(4),
Rule 3(5),
Rule 3(6),

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Smart Summary

Structured Summary of the Opinion (A.M. Khanwilkar, J.)

Factual and Procedural Background

This writ petition under Articles 226 and 227 challenges the judgment of the Central Administrative Tribunal, Mumbai Bench dated 19th February 2010 in Original Application No. 482 of 2007. Respondent No. 1 (identified in the record as Shri A.K. Jain, I.P.S.) was, at the relevant time, an Additional Commissioner of Police (Maharashtra Cadre) and was placed under suspension by Government order dated 17th June 2000. He filed the Original Application seeking revocation of suspension and reinstatement with retrospective effect from 16th September 2000 and consequential monetary and service benefits.

The Tribunal allowed respondent No. 1’s Original Application, holding that his continued suspension from 16th September 2000 was illegal because the Competent Authority had failed to review the order of suspension within the time specified by sub-rule (8) of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969. The Tribunal directed reinstatement from 16th September 2000 with consequential benefits.

The petitioners (State/Government authorities) challenged the Tribunal’s decision before the High Court arguing, inter alia, that (a) the Original Application suffered delay, (b) suspension was effected under Rule 3(3) of the Rules (suspension until termination of criminal proceedings) and therefore did not require periodic review under Rule 3(8), and (c) in any event the Authority had reviewed and extended suspension from time to time. The High Court examined the interpretation of Rule 3 (as it stood prior to the amendment effective 30th September 2009), concluded that the Tribunal had erred in applying Rule 3(8) to a suspension under Rule 3(3), quashed the Tribunal's decision, and restored the Original Application to the Tribunal solely for the limited purpose of considering the effect of the amended Rule 3 (which came into force on 30th September 2009).

Legal Issues Presented

Whether a suspension order issued under Rule 3(3) of the All India Services (Discipline and Appeal) Rules, 1969 (i.e., suspension where a criminal investigation/inquiry/trial is pending) operates "until the termination of all proceedings relating to that charge" and is therefore not subject to the periodic review-and-extension regime set out in sub-rule (8) of Rule 3.
Whether the Central Administrative Tribunal was correct in holding that respondent No. 1’s continued suspension from 16th September, 2000 became illegal for failure to review/extend the suspension within the time prescribed by sub-rule (8) of Rule 3.
What is the legal effect of the successive review/extension orders issued by the State after the original Rule 3(3) suspension order — are they valid extensions or are they ineffective (non est) because Rule 3(3) was the operative provision?
What is the effect of the amendment to Rule 3 (All India Services (Discipline and Appeal) Amendment Rules, 2009) which came into force on 30th September, 2009, on the facts of this case? (This issue was left to the Tribunal by the High Court to decide afresh.)

Arguments of the Parties

Petitioners' Arguments (State / Government)

The Original Application was time-barred by delay and laches (filed on 27th August 2007 to challenge suspension effective from 16th September 2000).
Respondent No. 1 ought to have availed the remedy of appeal under the Rules rather than file the Original Application.
The original suspension order dated 17th June 2000 was issued under Rule 3(3) of the Rules; consequently, the Competent Authority was not obliged to review the order under sub-rule (8) and need not issue formal extension orders because the suspension was to endure until termination of criminal proceedings.
In any event, the Authority reviewed the case from time to time and issued extension orders; the Tribunal therefore erred in finding no review/extensions had taken place within the prescribed times.
The Tribunal failed to give due weight to the seriousness of the criminal charges (including two separate criminal cases—Special Case No. 46 of 2001 and Special Case No. 62 of 2005) and therefore should have been reluctant to interfere with the suspension order.

Respondent No. 1's Arguments

The Competent Authority failed to comply with the procedural requirement of reviewing the suspension within the timelines mandated by sub-rule (8) of Rule 3; therefore the continued suspension from 16th September 2000 was illegal and without authority of law.
Relied on precedent(s) (including Union of India v. Dipak Mali and two unreported Tribunal decisions) to support the view that review/modification of suspension must be undertaken within the stipulated time-limits.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union of India v. Dipak Mali (Special Leave Petition (Civil) No. 6661 of 2006; dated 15th December 2009; reported as (2010) 1 SCC (L&S) 593)	Principle that review/modification of suspension (in that case) had to be done before expiry of ninety days — decision dealt with Rule 10 of the Central Civil Services (CCA) Rules, 1965 (comparable to review provisions).	The Court observed that Dipak Mali concerned suspension under a provision comparable to Rule 3(1) (i.e., pending disciplinary proceedings). The High Court held that Dipak Mali was inapposite to the present facts because it dealt with a different statutory provision (Rule 10 CCS (CCA) Rules) and applies to suspensions pending disciplinary inquiry (Rule 3(1)) rather than suspensions under Rule 3(3).
Children Film Society of India v. Sridhar Sharma, 1993 Supp (2) SCC 396	Principle: where the criminal charge is of a serious nature, it may not be desirable to revoke the suspension and reinstate the officer to discharge duties.	The High Court acknowledged this authority to support the general proposition that reinstating an officer facing serious criminal charges may be inappropriate; it was used to illustrate judicial caution in interference with suspension where criminal proceedings are serious.
Deepak Pandey v. Government of Maharashtra (Bombay Bench, CAT), Original Application No. 602 of 2006 (27th February, 2007) — unreported	Interpreted Rule 3(1) (suspension where disciplinary proceedings are contemplated/pending) and the review/extension regime under Rule 3(8).	The Court noted this decision concerned Rule 3(1) suspensions only; it was held to be of no assistance to respondent No. 1 because the present case involves Rule 3(3).
Shridhar Sumant Vagal v. Union of India (Bombay Bench, CAT), Original Application No. 475 of 2009 (20th July, 2010) — unreported	Dealings with suspension under Rule 3(3).	The High Court observed that this decision relied on the Tribunal’s interpretation which is impugned in the present petition; therefore it was not persuasive in the instant matter.

Court's Reasoning and Analysis

The High Court undertook a clause-by-clause analysis of Rule 3 (as it stood prior to the 30th September 2009 amendment) and parsed the different sub-rules to determine their respective scopes and mutual exclusivity. Key steps of the Court's reasoning were:

Interpretation of Rule 3(3): The Court found that sub-rule (3) is a stand-alone enabling provision that permits the Appropriate Authority, in its discretion, to place a member of the Service under suspension "until the termination of all proceedings relating to that charge" where a criminal investigation/inquiry/trial is pending and the charge is connected with the official's position, likely to embarrass him in duty, or involves moral turpitude. The Framers deliberately omitted any specified time period in sub-rule (3), signalling that such suspension ordinarily continues until termination of the criminal proceedings unless modified or revoked.
Distinction from sub-rule (1) and sub-rule (8): The Court emphasized that sub-rule (1) (suspension where disciplinary proceedings are contemplated or pending) envisages a limited period (ninety days, with specified possibilities of extension), and sub-rule (8) prescribes a mandatory review-and-extension regime for such time-limited suspensions. By contrast, sub-rule (3) is not linked to the time-limited regime and should not be read down to be governed by sub-rule (8) in ordinary operation.
On the Tribunal’s approach: The Court held that the Tribunal erred in treating suspension under Rule 3(3) as governed by the review/extension machinery of Rule 3(8). Reading sub-rule (7) and (8) to apply to sub-rule (3) would undermine the express language "until the termination of all proceedings" in sub-rule (3) and effectively rewrite the provision. The Court stressed harmonious construction but rejected an interpretation that would render sub-rule (3) redundant.
On the original suspension order's terms: The original Government order dated 17th June 2000 explicitly invoked Rule 3(3) and used the phrase "until further orders". The High Court concluded that the Authority had in fact exercised its discretion under Rule 3(3) to place respondent No. 1 under suspension without a specified time limit; the Tribunal's finding that the Authority had not so exercised its discretion was held to be an error on the face of the record.
On subsequent extension orders: The Court reasoned that once a valid Rule 3(3) suspension is in place, the Authority cannot, by invoking the Rule 3(8) review machinery, lawfully limit the period of that Rule 3(3) suspension to 90 days or to further 180-day extensions (i.e., it cannot use Rule 3(8) to vary the mandatory linkage between suspension and termination of criminal proceedings). Consequently, the successive extension orders issued under a mistaken belief that Rule 3(8) applied are of no avail and must be treated as non est (ineffective) vis-à-vis the original Rule 3(3) suspension, unless the Authority expressly revoked the original Rule 3(3) order.
On factual gaps and possible limited effect: The Court recognized that, if the Authority had intended to shorten the Rule 3(3) suspension by valid exercise of power (e.g., by revocation), that would be permissible. Conversely, because the State did issue extension orders (albeit under a mistaken view), respondent No. 1 could not properly rely on them to claim automatic invalidity of suspension from 16th September 2000 as the Tribunal had held. The High Court noted that even on the facts the Tribunal's specific factual finding that suspension became invalid from 16th September 2000 was not sustainable, and that at best the respondent might have been able to contend illegality after certain later dates (for example after 17th June 2001 if no valid extension had been issued before expiry), but the Tribunal's precise conclusion was overbroad and erroneous.
On precedents relied upon: The Court found Dipak Mali inapplicable because that case arose under a different statute/rule framework (Rule 10 of the CCS (CCA) Rules) and concerned suspensions pending enquiry (comparable to Rule 3(1)), not suspensions under Rule 3(3). The two unreported Tribunal decisions were also found to be of little or no assistance for the reasons explained in the opinion.
On the amendment to Rule 3 (effective 30th September 2009): The High Court refrained from deciding the impact of the amended Rule 3 for the first time. Because the Tribunal's decision had been premised on an interpretation of the unamended rule which the High Court found erroneous, the High Court restored the Original Application to the Tribunal to consider, on merits and afresh, the efficacy and application of the amended Rule 3 (2009 amendment) to the facts of this case.

Holding and Implications

Holding: The Writ Petition was partly allowed. The High Court quashed and set aside the impugned judgment of the Central Administrative Tribunal dated 19th February 2010. The Original Application No. 482 of 2007 is restored to the Tribunal to be decided only on the limited question of the effect and application of the amended Rule 3 (All India Services (Discipline and Appeal) Amendment Rules, 2009) which came into force on 30th September 2009. The Court directed that the Tribunal decide that limited issue expeditiously. No order as to costs was made.

Implications:

The High Court held as a matter of law that a suspension validly ordered under Rule 3(3) ordinarily operates until termination of the criminal proceedings related to the charge and is not governed by the periodic review-and-extension regime of Rule 3(8) (which applies to time-limited suspensions such as those under Rule 3(1)).
Successive extension orders issued under the mistaken assumption that Rule 3(8) applied to a Rule 3(3) suspension are ineffective in altering the nature of a Rule 3(3) suspension; they do not, by themselves, operate to revoke or limit the original Rule 3(3) suspension unless the Authority expressly revokes or modifies the original order.
The Tribunal's specific conclusion that respondent No. 1’s suspension had become illegal from 16th September 2000 was overturned as an error of law and of fact on the record; the question of the impact of the Rule 3 (2009) amendment remains open and was remitted to the Tribunal for fresh consideration.
The High Court did not decide questions arising under the 2009 amendment to Rule 3; parties are to approach the Tribunal to litigate the effect of that amendment on the present facts. The Court therefore avoided deciding the amended-rule question for the first time in the writ petition.
No broader order as to costs was awarded; the matter was partially allowed and remitted for limited adjudication.

Order: Petition partly allowed. Impugned Tribunal decision quashed and Original Application restored to the Tribunal for limited purpose (effect of amended Rule 3, 2009). No costs.

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State Of Maharashtra And Another v. A.K Jain And Another

A.M Khanwilkar, J.:— This Writ Petition under Articles 226 and 227 of the Constitution of India takes exception to the judgment of the Central Administrative Tribunal, Mumbai Bench, dated 19th February, 2010, in Original Application No. 482 of 2007. The said Original Application was filed by respondent No. 1, who, at the relevant time, was an Additional Commissioner of Police working under the Government of Maharashtra to challenge his suspension; and, in the alternative, to direct the respondents to revoke his suspension with further direction to reinstate him with effect from 16th September, 2000 and to treat the period of suspension as on duty and grant the arrears of pay, allowances, perquisites, increments and all other benefits to him forthwith.

2. To buttress the reliefs claimed by respondent No. 1 in the Original Application, he had primarily contended that the Competent Authority, having failed to review the order of suspension within the time specified as per sub-rule (8) of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 (hereinafter referred to as “the said Rules”, for the sake of brevity), his continued suspension was rendered illegal and without authority of law. The Tribunal accepted the said challenge and allowed the Original Application preferred by respondent No. 1 on the finding that the continued suspension of respondent No. 1 from 16th September, 2000 was illegal, for which reason, the petitioners were directed to reinstate respondent No. 1 in service with retrospective effect from 16th September, 2000 and respondent No. 1 be given all consequential benefits within four days from the date of receipt of the order.

3. The Original Application was resisted by the petitioners, inter alia, on the ground that the Original Application suffered from delay and laches. In that, to question the validity of continued suspension on and from 16th September, 2000, the Original Application was filed by respondent No. 1 on 27th August, 2007. Secondly, respondent No. 1 ought to have resorted to remedy of appeal provided under the Rules against his continued suspension. On merits, the principal argument of the petitioners was that respondent No. 1 was placed under suspension in exercise of powers under Rule 3(3) of the said Rules. For that reason, the Competent Authority was not obliged to review the order of suspension or to issue formal order of extension of suspension, as the Order of Suspension dated 17th June, 2000, in law, ought to enure until the termination of criminal proceedings relating to the charge of corruption pending against respondent No. 1.

4. It was further contended on behalf of the petitioners that, nevertheless, the petitioner's case was reviewed from time to time and the suspension period was extended accordingly. The Tribunal not only negatived the two preliminary objections raised by the petitioners, but, on merits, proceeded to hold that, while issuing the Order of Suspension dated 17th June, 2000, the Authority did not exercise its discretion of placing respondent No. 1 under suspension for indefinite period. It held that neither the relevant notings nor the order of suspension disclose that intention. In other words, the initial Order of Suspension dated 17th June, 2000 was not ascribable to Rule 3(3) of the said Rules, and for that reason, it was obligatory to review the same from time to time, and, upon recording satisfaction, extend the suspension period in conformity with the provision of Rule 3(8) of the said Rules.

5. It then went on to observe that the Review Committee did not examine the proposal for extension within the prescribed time. Instead, the Review Committee considered the proposal after the expiry of the suspension period, which was impermissible in law. The Tribunal further held that the approval of the Competent Authority was also not obtained in respect of recommendation made by the Review Committee for extension of suspension on 16th February, 2005, 3rd February, 2006, 2nd August, 2006 and 16th January, 2007, as required under clause (b) of Rule 3(8) of the said Rules, and yet, orders extending suspension were issued. The Tribunal, thus, concluded that respondent No. 1 has been kept under illegal suspension with effect from 16th September, 2000 onwards.

6. Notably, as regards the plea of respondent No. 1 founded on the amended provision in Rule 3 of the said Rules, which came into effect from 30th September, 2009, the Tribunal observed that it was not necessary to examine the same, being academic issue, in the light of the conclusion already reached.

7. In the first place, the Tribunal interpreted the sweep of Rule 3 of the said Rules. The Tribunal held that the suspension under Rule 3(1) is permitted only for a limited period, subject to extension of the same before expiry of the specified period or the extended period, as the case may be, without disciplinary proceedings being initiated. Whereas, under Rule 3(3), suspension can be ordered for an indefinite period, i.e, until termination of proceedings relating to the criminal charge against the official concerned, provided that the Authority exercises that discretion consciously. After noting this position, the Tribunal proceeded to hold that it is necessary to review and extend all suspensions, including ordered under Rule 3(3) of the said Rules. That is on the basis of the language of Rule 3(8), in particular clause (a) thereof. Inasmuch as, the said provision stipulates that the rigours of Rule 3(8) are applicable to all cases of suspension under Rule 3. It thus held that, if the Authority does not invoke discretion to order indefinite suspension under Rule 3(3), all suspension orders under that Rule shall be for a maximum period of ninety days and shall be subject to review and extension as per the provision of sub-rule (8) of Rule 3. The Tribunal opined that only such harmonious construction of the relevant provision must follow.

8. To sum up, the Tribunal found that, unless Government exercises its discretion to order indefinite suspension under Rule 3(3), suspension ordered shall be valid for a maximum period of ninety days, and shall be subject to review and extension as per the provision of Rule 3(8) of the said Rules, which has to be done before the expiry of the currency of suspension as per the original or the extension order, as the case may be.

9. On the basis of finding of fact recorded by the Tribunal, in the present case, inter alia, that the Authority had not exercised discretion to put respondent No. 1 under indefinite suspension, coupled with the fact that the proposal for extension of the suspension period was not processed before the expiry of the currency of suspension period as per the original or the extension order, as the case may be, the Tribunal, applying the above interpretation, proceeded to hold that respondent No. 1 was kept under illegal suspension with effect from 16th September, 2000 onwards. This decision of the Tribunal is subject-matter of challenge in the present petition.

10. The counsel for the petitioners argued that the Tribunal has committed manifest error both in respect of interpretation of the relevant rules, as also with regard to the finding of fact recorded by it. According to the petitioners, Rule 3 deals with different situations in which the Authority is free to place a member of the Service under suspension. The period of suspension referred to in Rule 3(1) is applicable to cases where disciplinary proceedings are contemplated or are pending against a member of the Service. The suspension period in those cases is required to be reviewed and extended. The said provision has no application to the situation governed under Rule 3(3). In the latter cases covered by Rule 3(3), the question of extension of the suspension period within the time specified under sub-rule (8) of Rule 3 of the said Rules does not arise. In short, it is argued that the provision of Rule 3 will have to be construed harmoniously so as to give effect to the intent of the framers of the Rules and to make it workable. On merits, it is contended that, going by the plain language of Suspension Order dated 17th June, 2000, there can be no manner of doubt that it was issued by the Authority in exercise of powers under Rule 3(3) of the Rules, which was to enure until the termination of the criminal proceedings pending against respondent No. 1. If this plea is correct, it may not be necessary to examine any other aspect. For, even the Tribunal has opined that it is open to the Authority to place an official under suspension until the termination of all proceedings relating to the criminal charge brought against the official.

11. It is then argued that, even otherwise, the decision of the Tribunal for having held that there was no review and extension within the time-frame for extension of the period of suspension is untenable. It was argued that respondent No. 1 was facing two criminal cases - one registered as Special Case No. 46 of 2001 and the other as Special Case No. 62 of 2005. The first was on the basis of the F.I.R registered on the information given by one Shri P.C, Lodha, whereas the second criminal case instituted against respondent No. 1, being Special Case No. 62 of 2005, is in respect of charge of possessing disproportionate assets. The Tribunal has glossed over the seriousness of the charge against respondent No. 1 in the aforesaid two criminal cases. In such a situation, the Tribunal ought to be loath to interfere with the suspension order operating against respondent No. 1. At any rate, the conclusion reached by the Tribunal that the continued suspension of respondent No. 1 beyond 16th September, 2000 was illegal cannot be sustained and is a manifest error committed by the Tribunal on the face of the record. The petitioners, therefore, urged that the impugned decision of the Tribunal be set aside, and the Original Application preferred by respondent No. 1 be dismissed in toto.

12. Respondent No. 1 has supported the findings and conclusions reached by the Tribunal, and submits that no interference whatsoever is warranted in the present case. Besides, the counsel for respondent No. 1 has relied on three decisions in support of the opinion recorded by the Tribunal in the impugned decision. Reliance is placed on the unreported decision of the Apex Court in the case of Union of India v. Dipak Mali dated 15th December, 2009 in Special Leave Petition (Civil) No. 6661 of 2006 [as reported in (2010) 1 SCC (L&S) 593], Reliance is also placed on the unreported decision of the Bombay Bench of Central Administrative Tribunal in the case of Shridhar Sumant Vagal v. Union of India dated 20th July, 2010 in Original Application No. 475 of 2009 and lastly, on another unreported decision of the Bombay Bench of the Tribunal dated 27th February, 2007 in Original Application No. 602 of 2006 in the case of Deepak Pandey v. Government of Maharashtra

13. Before we proceed to examine the contentions raised by both sides, it may be useful to advert to the undisputed facts. Respondent No. 1 joined the Indian Police Service (hereinafter referred to as ‘IPS’) in the year 1982, and was allotted to the Maharashtra Cadre of IPS. While working as Additional Commissioner of Police, Central Region, Mumbai, he was placed under suspension as per order dated 17th June, 2000 issued by the Government of Maharashtra. The circumstance leading to suspension of respondent No. 1 was on account of the Deputy Commissioner of Police having noticed that certain bar and restaurant within the jurisdiction of Shri Kokil, Inspector of Police attached to Byculla Police Station, was kept open beyond the permissible time. That indicated negligence in duty by Shri Kokil. One Shri P.C Lodha, Chartered Accountant by profession, accosted Shri Kokil and informed him that he would face consequences of being negligent in his duties. He offered to bail out Shri Kokil, if the latter parted with a sum of Rs. 5 lakhs, which, Shri Lodha said, was to be paid to respondent No. 1 for not taking any action against him. It is stated that certain bargaining between Shri Kokil and Shri Lodha took place regarding the manner in which the amount was to be paid. Shri Lodha insisted that Rs. 3 lakhs be paid upfront. Shri Kokil, however, could collect only Rs. 2 lakhs. Shri Kokil was to keep further sum of Rs. 10,000/- ready to be paid to Shri Lodha for his services and go-between in the transaction. Shri Kokil simultaneously contacted the Anti Corruption Bureau Authorities, whereafter, a trap was organised. As Shri Kokil handed over the money to Shri Lodha, at that time, both were apprehended by the A.C.B officials. Thereafter, statements of both the persons were recorded. Shri Kokil was sent to the office of respondent No. 1 with hidden transmitter and conversation between him and respondent No. 1 was recorded. In this background, respondent No. 1 was placed under suspension by an order dated 17th June, 2000 issued by the Government of Maharashtra in exercise of powers conferred under Rule 3(3) of the Rules. The said order reads thus:—

“GOVERNMENT OF MAHARASHTRA,

Home Department,

Order No. ACB-01/2000/CR-139.POL-2

Mantralaya, Mumbai 400 032

Dated the 17th June, 2000

WHEREAS an investigation relating to criminal charges is pending against Shri A.K Jain, I.P.S (1982) borne on Maharashtra cadre,

AND WHEREAS the Government of Maharashtra, after carefully considering the available material and having regard to the circumstances of the case is satisfied that it is necessary and desirable to place Shri A.K Jain under suspension,

NOW THEREFORE, the Government of Maharashtra, in exercise of the powers conferred by Rule 3 (3) of the All India Services (Discipline and Appeal) Rules, 1969, and all other powers enabling it in that behalf, places the said Shri A.K Jain under suspension with effect from the date of this order until further orders.

It is further ordered that during the period this order shall remain in force, the aid Shri A.K Jain shall be paid such subsistence allowance, dearness allowance and other allowances as admissible under Rule 4 of the All India Services (Discipline and Appeal) Rules, 1969. on production of a certificate that he is not engaged in any other employment, business, profession or vocation. It is also ordered that during the period this order shall remain in force, Shri A.K Jain's headquarters will be Mumbai which he shall not leave without obtaining previous permission of Additional Chief Secretary, Home Department, Mantralaya, Mumbai. It shall also not be permissible for him to accept any private employment or engage in any trade or business during suspension. Any breach of these conditions shall be treated as an act of misconduct under the All India Services (Conduct) Rubs, 1968, rendering him liable for disciplinary action.

By order and in the name of the Governor of Maharashtra,

(A. A. Sakhalkar)

Joint Secretary to the Government of Maharashtra,

Home Department.

(emphasis supplied)

14. Thereafter, an F.I.R was registered against respondent No. 1 and Shri Lodha, Respondent No. 1 was arrested in connection with the said criminal case but was enlarged on bail on 11th July, 2000 by the Special Judge, Greater Mumbai. In connection with the said F.I.R, criminal case has been filed against Lodha and respondent No. 1, being Special Case No. 46 of 2001 before the Special Judge for Greater Mumbai. At the stage of issuance of process in the said case, the question regarding the validity of sanction order issued against respondent No. 1 was challenged before the Special Judge. The Special Judge held that the sanction order issued was not in conformity with the provisions of law and, therefore, the Sanctioning Authority was called upon to re-examine the matter. That decision of the Special Judge has been challenged before this Court, which, as noted by the Tribunal in the impugned decision, is pending.

15. In the meantime, the order of suspension of respondent No. 1 came to be reviewed by the Review Committee. constituted under sub-rule (8)(c) of Rule 3 on 14th December, 2000. The Review Committee recommended further continuance of the order of suspension against respondent No. 1. The State Government, therefore, exercised powers under Rule 3(8) of the said Rules and all other enabling provisions in that behalf; and accorded sanction for further continuation of order of suspension against respondent No. 1 for a period of three months from the date of expiry of the earlier period. The order issued by the State Government reads thus:—

“GOVERNMENT OF MAHARASHTRA,

Home Department,

Order No. ACB-01/2000/CR-139.PART-I/POL-2

Mantralaya, Mumbai 400 032

Dated the 10th February, 2001

Read : 1] Government Order, Home Department No. ACB 01 /2000.CR-139.Pol-2 dated the 17th June, 2000

2] Government Order, Home Department No. 1

Whereas Shri A.K Jain, I.P.S (RR-1983) has been placed under suspension vide Govt. Order, Home Department No. ACB 01/2000.CR-139.Pol-2 dated the 17th June, 2000;

And whereas the Order of suspension was required to be reviewed in terms of sub-rule (8) of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969, by the Review Committee constituted under clause (c) of sub-rule (8) of the said rule;

And whereas the Review Committee on 14th December, 2000 has recommended further continuance of the Order of suspension of Shri A.K Jain;

Now, therefore, the Government of Maharashtra in exercise of powers conferred by sub-rule (8) of Rule 3 of the said Rules and all other powers enabling it in that behalf has decided to accord sanction for further continue the Order of suspension of Shri A.K Jain for a further period of three months from the date of expiry of the earlier period of three months from the date of Order of continuation of suspension dated 17th December, 2000.

By order and in the name of the Governor of Maharashtra,

(A.D Karkhanis)

Joint Secretary to the Govt, of Maharashtra,

Home Department.

(emphasis supplied)

16. Thereafter, on 17th April, 2001, the State Government issued another order in exercise of powers under Rule 3(8) to extend the suspension of respondent No. 1 until 17th June, 2001. The said order reads thus:

“GOVERNMENT OF MAHARASHTRA

HOME DEPARTMENT

ORDER NO. ACB 0I/2000.CR-139.PART-1.POL-2

MANTRALAYA, MUMBAI 400 032

DATED THE 17TH APRIL, 2001

Read : 1] Government Order, Home Department No. ACB 01/2000.CR-139.Pol-2 dated the 17th June, 2000.

2] Government Order, Home Department No. ACB 01/2000.CR-139.Part-I/Pol-2 dated the 17th January, 2001.

3] Government Order, Home Department No. ACB 01/2000.CR-139.Part-I/Pol-2 dated the 10th February, 2001.

Whereas Shri A.K Jain, I.P.S (RR-1983) has been placed under suspension vide Govt. Order, Home Department No. ACB-01/2000/CR- 139.Pol-2 dated the 17th June, 2000;

And whereas the Review Committee on 15th March, 2001 has recommended further continuance of the Order of suspension of Shri A.K Jain;

Now. therefore, the Government of Maharashtra in exercise of powers conferred bv sub-rule (8) of Rule 3 of the said Rules and all other powers enabling it in that behalf, has decided to further continue the order of suspension of Shri A.K Jain for a further period of three months i.e from the 17th March 2001 to 17th June, 2001.

By order and in the name of Governor of Maharashtra,

(A.D Karkhanis)

Joint Secretary to the Govt, of Maharashtra,

Home Department.”

(emphasis supplied)

17. The order of suspension was reviewed from time to time by the Review Committee, and on the basis of which, the State Government issued orders to further continue the suspension of respondent No. 1.

18. We may usefully refer to the “chart furnished by respondent No. 1” regarding the dates of the orders and the period extended in terms of the respective orders and the gap or delay in review of the order of suspension before expiry of the currency of suspension as per the original or the extension order, as the case may be, which reads thus:—

Order Dates 17-6-2000 Period Extended For Suspension Order Issued Gaps & Delays Lapsed on 16-9-2000 (Gap of 181 days before first review done on 17-1-2001) 181 days 17-1-2001 ex post facto 3 months (dates not mentioned) 10-2-2001 ex post facto 3 months (dates not mentioned) 17-4-2001 ex post facto 3 months 17-3-2001 to 30 days 17-6-2001 27-7-2001 ex post facto 180 days 17-6-2001 to 40 days 14-12-2001 4-3-2002 ex post facto 180 days 14-12-2001 to 80 days 11-6-2002 6-8-2002 ex post facto 90 days 11-6-2002 to 55 days 8-9-2002 18-9-2002 ex post facto — Period not mentioned 10 days (Gap of about 2 years & 6 months before next review) 924 days 31-3-2005 ex post facto — Period not mentioned 10 days (Gap of about 1 year before next review) 350 days 17-3-2006 ex post facto till 2-8-2006 (dates notmentioned) 27-9-2006 ex post facto 180 days 55 days 2-8-2006 to 29-1-2007 27-4-2006 ex post facto 180 days 30-1-2007 to 115 days 28-7-2007 24-9-2007 ex post facto 180 days 29-7-2007 to 50 days 2-1-2008 (2-1-2008 to 25-1-2008 suspension order does not exist) 1-2-2008 ex post facto 180 days 25-1-2008 to 27 days 22-7-2008 25-8-2008 ex post facto 180 days 23-7-2008 to 33 days 18-1-2009 11-2-2009 ex post facto 180 days 19-1-2009 to 24 days 17-7-2009 1-7-2009 —180 days 18-7-2009 to 13-1-2010.”

19. As aforesaid, lateron, another criminal case has been instituted against respondent No. 1 before the Special Judge for Greater Mumbai, being Special Case No. 62 of 2005, for charge of possession of disproportionate assets. That special case has been registered on 19th October, 2005. It is also noticed that respondent No. 1 made successive representations until 3rd December, 2009 for revocation of his suspension. Having realised that the Authorities are not responding to his representations, respondent No. 1 filed Original Application No. 482 of 2007 on 27th August, 2007 for the reliefs already referred to earlier.

20. The first issue that needs to be considered is the purport of Rule 3 of the said Rules. Rule 3 is found in Part II of the said Rules of 1969. The said Rule has been amended from time to time. The last such amendment to Rule 3 has been brought into effect from 30th December, 2009. We shall, however, refer to Rule 3, as it stood prior to 30th September, 2009. The same reads thus:—

“PART II—SUSPENSION

3. Suspension.—

(1) If having regard to the circumstances in any case and, where articles of charge have been drawn up, the nature of the charges, the Government of a Slate or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that Government may—

(a) if the member of the Service is serving under that Government, pass an order placing him under suspension, or

(b) if the member of the Service is serving under another Government request that Government to place him under suspension, pending the conclusion of the disciplinary proceedings and the passing of the final order in the case.

Provided that, in cases, where there is a difference of opinion,—

(i) between two State Governments, the matter shall be referred to the Central Government for its decision;

(ii) between a State Government and the Central Government, the opinion of the Central Government shall prevail:

Provided further that, where a member of the Service against whom disciplinary proceedings are contemplated is suspended, such suspension shall not be valid unless before the expiry of a period of ninety days from the date from which the member was suspended, disciplinary proceedings are initiated against him,

Provided also that the Central Government may, at any time before the expiry of the said period of ninety days and after considering the special circumstances for not initiating disciplinary proceedings, to be recorded in writing, allow continuance of the suspension order beyond the period of ninety days without the disciplinary proceedings being initiated.

(1A) If the Government of a State or the Central Government, as the case may be, is of the opinion that a member of the Service has engaged himself in activities prejudicial to the interests of the security of the State, that Government may—

(a) if the member of the Service is serving under that Government, pass an order placing him under suspension, or

(b) if the member of the Service is serving under another Government, request that Government to place him under suspension, till the passing of the final order in the case:

Provided that, in cases, where there is a difference of opinion—

(i) between two State Governments, the matter shall be referred to the Central Government for its decision;

(ii) between a State Government and the Central Government, the opinion of the Central Government shall prevail.

(2) A member of the Service who is detained in official custody whether on a criminal charge or otherwise for a period longer than forty-eight hours, shall be deemed to have been suspended by the Government concerned under this rule.

(3) A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a [member of the Service] or is likely to embarrass him in the discharge of his duties or involves moral turpitude.

(4) A member of the Service shall be deemed to have been placed under suspension by the Government concerned with effect from the date of conviction, if, in the event of conviction for a criminal offence, if he is not forthwith dismissed or removed or compulsorily retired consequent on such conviction provided that the conviction carries a sentence of imprisonment exceeding forty-eight hours.

Explanation.— The period of forty-eight hours referred to in sub-rule (4) shall be commuted from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.

(5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the Service 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.

(6) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the Service 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 further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of the Service shall be deemed to have been placed under suspension by the Central Government from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

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.

(6A) Where an order of suspension is made, or deemed to have been made, by the Government of a State under this rule, detailed report of the case shall be forwarded to the Central Government ordinarily within a period of fifteen days of the date on which the member of the Service is suspended or is deemed to have been suspended, as the case may be.

(7) (a) 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 member of the Service 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 in writing, direct that the member of Service shall continue to be under suspension subject to sub-rule (8).

(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 deemed to have made the order.

(8) (a) An order of suspension made under this rule which has not been extended shall be valid for a period not exceeding ninety days and an order of suspension which has been extended shall remain valid for a further period not exceeding one hundred eighty days, at a time, unless revoked earlier.

(b) An order of suspension made or deemed to have been made or continued, shall be reviewed by the competent authority on the recommendations of the concerned Review Committee.

(c) The composition and functions of the Review Committees and the procedure to be followed by them shall be as specified in the Schedule annexed to these rules.

(d) The period of suspension under sub-rule (1) may, on the recommendations of the concerned Review Committee, be extended for a further period not exceeding one hundred and eighty days at a time : Provided that where no order has been passed under this clause, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed.

(9) Every order of suspension and every order of revocation shall be made, as nearly as practicable, in the appropriate standard form appended to these rules.” (emphasis supplied)

21. In 2009, Rule 3 has been amended by the Rules called “the All India Services (Discipline and Appeal) Amendment Rules, 2009”. The same came into force with effect from 30th September, 2009. The amendment reads thus:—

“MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS (Department of Personnel and Training)

NOTIFICATION

New Delhi, the 30th September, 2009

G.S.R 714(E).-In exercise of the powers conferred by sub-section (1) of section 3 of the All India Services Act, 1951 (61 of 1951), the Central Government, after consultation with the State Governments concerned, hereby makes the following rules further to amend the All India Services (Discipline and Appeal) Rules, 1969, namely:—

(1) These rules may be called the All India Services (Discipline and Appeal) Amendment Rules, 2009.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the All India Services (Discipline and Appeal) Rules, 1969, (hereinafter referred to as the said rules), in rule 3,

(a) in sub-rule (1), in clause (b), after the first proviso, for the second and the third proviso, the following provisos shall be substituted, namely :— “Provided further that the Chief Secretary, Director General of Police and the Principal Chief Conservator of Forests, who are the heads of the respective Services, shall not be placed under suspension without obtaining prior approval of the Central Government:

Provided also that, where a State Government passes an order placing under suspension a member of the Service against whom disciplinary proceedings are contemplated, such an order shall not be valid unless, before the expiry of a period of forty-five days from the date from which the member is placed under suspension, or such further period not exceeding forty-five days as may be specified by the Central Government for reasons to be recorded in writing, either disciplinary proceedings are initiated against him or the order of suspension is confirmed by the Central Government.”;

(b) after sub-rule (1A), the following sub-rules shall be inserted, namely:—

“(1B) The period of suspension of a member of the Service on charges other than corruption shall not exceed one year and the inquiry shall be completed and appropriate order shall be issued within one year from the date of suspension failing which the suspension order shall automatically stand revoked:

Provided that the suspension can be continued beyond one year only on the recommendations of the Central Ministry's Review Committee : Provided further that the period during which the disciplinary proceedings remain stayed due to orders of a Court of Law, shall be excluded from this limit of one year,

(1C) The period of suspension of a member of the Service on charges of corruption shall not exceed two years and the inquiry shall be completed and appropriate order shall be issued within two years from the date of suspension failing which the suspension order shall automatically stand revoked:

Provided that the suspension can be continued beyond two years only on the recommendations of the Central Ministry's Review Committee: Provided further that the period during which the disciplinary proceedings remain stayed due to orders of a Court of Law, shall be excluded from this limit of two years.

(1D) The composition and functions of the Central Ministry's Review Committee and the procedure to be followed by them shall be as specified in Schedule 2 annexed to these rules.”;

(d) in sub-rule (8), in clause (d), for the words bracket and figure “under sub-rule (1)”, the words “under this rule” shall be substituted.

3. In the Schedule to the said rules shall be numbered as Schedule 1 and after Schedule 1, as so numbered, the following Schedule shall be inserted, namely:—

“SCHEDULE 2

[See rule 3 sub-rule (1B), (1C) and (1D)]

1. Composition of the Review Committees. — The Central Ministry's Review Committee constituted by the Central Government shall consist of—

Secretary to the Government of India in the concerned Ministry/Department. Chairperson Additional Secretary/Joint Secretary in charge of Administration in the concerned Ministry Member Any other Additional Secretary/Joint Secretary in the concerned Ministry/Department. Member

Note : The Committee may, if considered necessary, co-opt an officer of the Department of Personnel and Training with the approval of Secretary (Personnel), Ministry of Personnel, Public Grievances and Pensions.

2. Functions. — On a reference being made by the Government that has ordered the suspension seeking extension beyond the period stipulated, the Central Ministry's Review Committee shall review the cases of officers under suspension on charges other than corruption in order to determine whether there are sufficient grounds for continuation of suspension beyond the period of one year and review the cases of officers under suspension on charges of corruption in order to determine whether there are sufficient grounds for continuation of suspension beyond the period of two years.

3. Procedure :— (a) The Central Ministry's Review Committee while assessing the justification for further continuation of any suspension beyond the period of one year, where the member of the Service is placed on suspension on charges other than corruption, shall look into the progress of any enquiry or investigation against the member of the Service by obtaining relevant information from the authorities enquiring or investigating into the charges;

(b) The Central Ministry's Review Committee while assessing the justification for further continuation of any suspension beyond the period of two years, where the member of the Service is placed on suspension on charges of corruption, shall look into the progress of any enquiry or investigation against the member of the Service by obtaining relevant information from the authorities enquiring or investigating into the charges;

(c) The Central Ministry's Review Committee shall satisfy itself that the delay has occurred for reasons beyond the control of the disciplinary authority and reinstatement of the officer may result in his tampering with the evidence or otherwise influencing the process of enquiry or investigation;

(d) The Central Ministry's Review Committee shall submit a detailed report to the Central Government, clearly stating its recommendations and the reasons for arriving at the conclusions relating to the continuance of suspension.”

[F. No. 11018/3/2004-AIS-III] HARJOT KAUR, Director (Services)”

22. As has been noticed earlier, the Tribunal has not examined the efficacy of the amended Rule 3, which has come into force with effect from 30th September, 2009. For that reason, we may refrain from going into the said issue for the first time in the present petition. However, we have reproduced the amended provision only to complete the record.

23. Reverting back to the purport of Rule 3 (unamended), it bestows power in the Appropriate Authority to place a member of the Service under suspension in the specified situations. Each of the clauses of Rule 3 deal with different situations. To wit, sub-rule (1) refers to suspension of the official “against whom disciplinary proceedings are contemplated or are pending”. It then provides for as to who can issue the order of suspension and also the period within which the disciplinary proceedings ought to be initiated against the official concerned. Sub-rule (1A) enables the Appropriate Authority to place a member of the Service under suspension if he has engaged himself in activities prejudicial to the interests of the security of the State. Sub-rule (2) of Rule 3 deals with a case where a member of the Service is detained in official custody whether on a criminal charge or otherwise for a period longer than fortyeight hours. It is a deeming provision. A legal fiction is created that, as soon as a person spends forty-eight hours in official custody, he shall be deemed to be placed under suspension by the Authority concerned in terms of the said Rule.

24. None of the above are applicable to the present case as order of suspension has neither been issued because disciplinary proceedings are contemplated or are pending against respondent No. 1 nor because he had engaged himself in activities prejudicial to the interests of the security of the State or because he was detained in official custody for a period longer than forty-eight hours. It is indisputable that respondent No. 1, who is a member of the Service, has been placed under suspension on the ground that investigation, enquiry or trial relating to criminal charge is pending against him. That situation is envisaged in Rule 3(3).

25. From the plain language of sub-rule (3) of Rule 3, it clearly spells out the intention of the Framers. In that, it postulates that the suspension order issued under this provision ought to operate “until the termination of all proceedings relating to the criminal charge”, if the charge against the official is connected with his position as a member of the Service or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In other words, in cases covered under Rule 3(3), the order of suspension, ordinarily, shall remain in force until the termination of all proceedings relating to the charge connected with the position held by the official as a member of the Service or is likely to embarrass him in the discharge of his duties or involves mortal turpitude, unless it is modified or revoked by the Authority competent to do so. As a necessary corollary, the question of review and extension of the suspension period would not arise, until the termination of all the proceedings relating to the stated charge against the official. In a given case, as in the present one, if the official is suspended because of the criminal charge being investigated, enquired or tried concerning his involvement in commission of offence under the provisions of the Prevention of Corruption Act, permitting him to discharge duty as a member of the Service during the pendency of that charge/proceedings would inevitably embarrass him in the discharge of his official duties; and, in any case, the charge being connected with his position as a member of the Service, he cannot and ought not be allowed to discharge his official duties. The Framers of the Rules have, advisedly, enacted Rule 3(3), without specifying any period of suspension, whilst making it amply clear that the suspension would remain in force “until the termination of all proceedings relating to stated criminal charge being investigated, enquired or tried against the concerned official”. That is the mandate of sub-rule (3).

26. As noticed earlier, the Tribunal has also adopted this interpretation, but then proceeded to answer the controversy with reference to Rule 3(8). The Tribunal has held that even cases covered under sub-rule (3), will be governed by the regime provided in Rule 3(7) and 3(8). In our opinion, this interpretation will be destructive of the intent behind Rule 3(3), which is to place the member of service under suspension “until the termination of all proceedings” relating to the criminal charge against him. We shall elaborate on this aspect a little later.

27. Reverting to Rule 3(4) of the said Rules, it deals with the situation where the official is convicted in a criminal offence. It provides that the said official, who is a member of Service, shall be deemed to have been placed under suspension by the Authority. It is a deeming provision, as in the case of situation covered under Rule 3(2). It is further provided that the conviction for criminal offence must, however, carry a sentence of imprisonment exceeding forty-eight hours. In that case, with effect from the date of conviction, such official should be deemed to be placed under suspension by the Authority if he is not forthwith dismissed or removed or compulsorily retired consequent on such conviction. It is not necessary to dilate further on the interpretation of Rule 3(4), as the same has no application to the present case.

28. As regards Rule 3(5), it deals with a situation where the disciplinary proceedings are revived for further enquiry on account of penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the Service under suspension is set aside in appeal or on review under the said Rules and the case is remitted for further enquiry. In such a situation, the order of suspension, which was operating against the official during the pendency of disciplinary enquiry, 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. Even this provision has no application to the fact situation of the present case, except to note that even this sub-rule contains a legal fiction of deemed continuation of suspension on and from the date of the original order of dismissal, removal or compulsory retirement and to remain in force until further orders.

29. As regards Rule 3(6), it deals with the situation where the penalty of dismissal, removal or compulsory retirement from service imposed upon the member of the Service is set aside or declared or rendered void in consequence of or by a decision of Court of law and the disciplinary authority decides to hold further enquiry; even in this case, by a legal fiction, the official is deemed to have been placed under suspension from the date of original order of suspension, removal or compulsory retirement, and should continue to remain under suspension until further orders.

30. These are the broad situations in which the Competent Authority is empowered to issue order of suspension against a member of the Service; or, by legal fiction, the member of Service is deemed to be placed under suspension, as the case may be. The situations dealt with in sub-rules (1) to (6) are mutually exclusive.

31. Reverting to sub-rule (6A), it envisages that the order of suspension must be forwarded to the Central Government within specified time from the date on which the member of the Service is suspended or is deemed to have been suspended, as the case may be. Sub-rule (9) provides that every order of suspension and every order of revocation shall be made in the appropriate standard form appended to the Rules. These two provisions are not material for answering the controversy in issue.

32. As the Tribunal has placed emphasis on sub-rules (7) and (8) to answer the issue in favour of respondent No. 1, we may have to examine the same in detail. There can be no quarrel with the proposition that the Court should lean in favour of interpretation to make the provision workable and not render it unworkable or otiose. Besides, it is also well-established principle that the interpretation of statute should be done, if necessary, clause by clause, keeping in mind the intent of the Framers.

33. The question is: Whether sub-rules (7) and (8) encompass all the situations referred to in sub-rules (1) to (6). Much emphasis has been placed by the Tribunal on the expression “made under this rule” occurring in the sub-rules under consideration, to hold that even an order of suspension passed in exercise of powers under sub-rule (3) is governed by the stipulations provided in the said sub-rules. As regards sub-rule (7), it is in three parts. On conjoint reading of clauses (a) and (c) thereof, it provides that 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. Clause (a) provides that the Competent Authority can modify or revoke the order of suspension even before the expiry of the period specified thereunder. As regards clause (b) of sub-rule (7), it envisages that a member of the Service is suspended or deemed to have been suspended, whether in connection with any “pending disciplinary proceeding or otherwise”, and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the Competent Authority can place him under suspension for reasons to be recorded in writing, subject to sub-rule (8). This provision enables the Competent Authority to issue fresh (successive) suspension orders against a member of the Service already under suspension or is deemed to have been suspended, in connection with the subsequent disciplinary proceeding commenced against him during the continuance of the earlier suspension, subject to sub-rule (8). In other words, this provision enables or empowers the Competent Authority to issue suspension order against the official already suffering an order of suspension and thereby order that the official shall continue to be under suspension, subject to sub-rule (8).

34. That takes us to sub-rule (8). Indeed, it opens with the words that “An order of suspension made under this rule”. However, the sweep of the said rule must be construed to mean that it would cover only those set of cases wherein the suspension is for a specified or fixed period, and which may have to be reviewed and extended for its continuation. In that, the order of suspension, which has not been extended, shall remain valid for ninety days, and, in case it is extended, shall remain valid for a period not exceeding one hundred eighty days, at a time, unless revoked earlier. By virtue of clause (b) of Rule 3(8), a review for continuation of the suspension period is imperative - which has to be done in the manner specified, before the expiry of the currency of the suspension as per the original or the extension order.

35. The question is: Whether this provision will have any bearing on the situation covered by sub-rule (3), with which we are concerned? As is noticed earlier, sub-rule (3) is a stand-alone provision - providing for suspension “until the termination of all proceedings” relating to the stated criminal charge. It is not linked or connected with the situations covered under other sub-rules, where the fixed suspension period is specified and is required to be reviewed and extended from time to time. Thus understood, clause (a) of sub-rule (8) will have no bearing on the order of suspension issued in exercise of powers under sub-rule (3). On this interpretation, neither clause (b) nor clause (c) or (d) of sub-rule (8) of Rule 3 will be of any avail. To put it differently, the expression “order of suspension made under this rule” occurring in sub-rule (7) or (8) will have to be understood to mean that, in cases where the review and extension of order of suspension is made essential by the Rules, the Appropriate Authority is obliged to undertake that exercise within the specified time. However, considering the purport of sub-rule (3) of Rule 3 as construed hitherto, the suspension period must, ordinarily continue until the termination of all proceedings relating to the specified criminal charge against the concerned official. No doubt, suspension cannot be resorted to as imposing penalty, and, longer the suspension, the officer may suffer loss of reputation, besides loss of livelihood. At the same time, it cannot be gainsaid that an official, who is facing criminal charge of corruption, should be permitted to discharge his official duties, even though the criminal charge is of a very serious nature and connected with his position as a member of the service - which inevitably is likely to embarrass him in the discharge of his duties.

36. In the case of Children Film Society Of India v. Sridhar Sharma, 1993 Supp (2) SCC 396, in paragraph 9, the Apex Court observed that the criminal charge against the officer was of a serious nature. In such a case, it is not desirable to revoke the order of suspension and compel the employer to reinstate the officer and allow him to discharge his official duties. In that case, it is noticed that the official of the appellant was involved in a criminal case, which was being investigated by the C.B.I

37. To get over this position, the counsel for respondent No. 1 relied on the dictum of the Apex Court in the case of Union of India v. Dipak Mali (supra), which held that a review for modification or revocation of the order of suspension was required to be done before the expiry of ninety days from the date of order of suspension. In the first place, the said judgment deals with the case covered by provision of Rule 10 of the Central Civil Services (CCA) Rules, 1965. The Apex Court, pointedly, referred to sub-rules (6) and (7) of the said Rule, as amended, which are reproduced in paragraph 1 of the decision. That provision is comparable with sub-rule (8) of Rule 3 of the Rules under consideration. From the opening part of the said judgment, it appears that the order of suspension was issued “pending enquiry”. That means that the Apex Court has examined the matter in that context. The equivalent provision of Rule under consideration would be sub-rule (1) of Rule 3, viz., official against whom disciplinary proceedings are in contemplation or pending, as the case may be. In our opinion, this Supreme Court decision is, therefore, of no avail.

38. Reliance was then placed on the unreported decision of the Tribunal in the case of Deepak Pandey (supra). In that case, the order of suspension was issued by the Authority in exercise of powers under Rule 3(1) of the said Rules. As regards suspension orders issued under Rule 3(1), the Competent Authority is obliged to review and extend the order of suspension from time to time before the expiry of the period of suspension mentioned in the original or the extension order. Suffice it to observe that the exposition in this decision will be of no avail for answering the controversy on hand.

39. As regards the unreported decision of the Tribunal in the case of Shridhar Sumant Vagal (supra), no doubt, it pertains to an order of suspension passed in exercise of powers under Rule 3(3) of the said Rules, but this decision will be of no avail to respondent No. 1, as it is founded, essentially, on the decision which is impugned in the present Writ Petition. We have already disagreed with the opinion recorded by the Tribunal insofar as the interpretation of Rule 3 and in particular sub-rule (3) of the said Rules.

40. In our opinion, sub-rule (3) of Rule 3 of the said Rules, bestows discretion in the Authority to issue order of suspension in cases covered by the said sub-rule. Once the Authority validly exercises that discretion, the order of suspension would, ordinarily, operate, until the termination of all proceedings relating to the criminal charge against the concerned official.

41. Indeed, by virtue of sub-rule (7), in particular clauses (a) and (c) thereof, it is possible to take the view that the Appropriate Authority, who has discretion to issue order of suspension under Rule 3(3), which order, ordinarily, must operate until the termination of all proceedings against the concerned official relating to specified criminal charge, may, in a given case, modify or revoke the order of suspension even in earlier point of time. In that case, however, the Competent Authority may have to record special reasons for curtailing the period of suspension other than specified in sub-rule (3). It is one thing to say that the Authority has power to modify or revoke the order of suspension issued even under Rule 3(3), but it does not follow that the order of suspension issued in exercise of powers under the said sub-rule will have to abide by the regime of review and extension prescribed under sub-rule (8) of Rule 3 of the said Rules. Taking any other view would dilute the efficacy of sub-rule (3), if not render it redundant. If we were to hold that even cases covered under sub-rule (3) of Rule 3 are amenable to regime of review and extension prescribed under sub-rule (8) of Rule 3, it would result in re-writing the expression “until the termination of all proceedings relating to that charge” occurring in sub-rule (3). Further, it would mean that the order of suspension even in cases covered under Rule 3(3) must operate for a period of ninety days, as in the case of situations covered under other clauses of Rule 3. Besides, the extension of order of suspension should not exceed 180 days at a time. That interpretation would defeat the purpose and intent behind framing of sub-rule (3), which is to link the suspension to the pending investigation, enquiry or trial relating to a specified criminal charge against the official concerned.

42. As aforesaid, it is open to the Competent Authority to place the concerned official under suspension, against whom, investigation, enquiry or trial relating to a criminal charge is pending; provided, however, the charge must be connected with the position of the officer as a member of the Service or is likely to embarrass him in the discharge of his duties or involves moral turpitude. It is not as if the official involved in “any criminal case” should be placed under suspension, that too, as a matter of course. We, therefore, agree with the contention that Rule 3(3) of the said Rules is an enabling provision and directory in nature. It cannot be construed as mandatory one. The setting, in which Rule 3(3) appears, gives discretion to the Authority to exercise that power on a case-to-case basis. But, once the Authority chooses to exercise powers in cases covered under Rule 3(3), the suspension of the officer, ordinarily, ought to continue until the termination of all proceedings/criminal charge pending investigation, enquiry or trial against that officer. Indeed, the language of Rule 3(3) does not preclude the Competent Authority to revoke the suspension order in earlier point of time, if the fact situation of the case so warrants. That is within the domain of the Authority, which can be done by resorting to the principle of “the greater includes the lesser exercise of power”, and more particularly, the principle embodied in clauses (a) and (c) of sub-rule (7) of Rule 3 of the said Rules, which enables the Authority to modify or revoke the order of suspension at any time. If the Authority intends to exercise this power, the option for the Authority would be to revoke the order of suspension against the concerned official. For, in cases covered by Rule 3(3), once the Authority decides to suspend the official, ordinarily, it has to be co-terminus with the termination of proceedings in relation to criminal charge against the official.

43. We may now turn to the question whether the Tribunal was justified in taking the view that, in the present case, the Authority did not exercise discretion to put respondent No. 1 under indefinite suspension. Here, we may notice that the original Order of Suspension dated 17th June, 2000, on the face of it, mentions that the Authority was exercising powers under Rule 3(3) of the Rule to place the respondent No. 1 under suspension with effect from the date of the order “until further orders”. The expression “until further orders”, occurring in the said order, will have to be construed to mean that the suspension would continue until termination of all proceedings, as is envisaged by Rule 3(3) of the said Rules. This is the manifest error committed by the Tribunal. The Appropriate Authority, however, under mistaken belief that, even in the present case, the regime provided in Rule 3(8) will have to be followed - reviewed the case for extension of suspension period, and, in fact, it proceeded to do so. That, however, does not mean that the Authority did not exercise its discretion to put respondent No. 1 under indefinite suspension as held by the Tribunal or the case is not covered by Rule 3(3) of the Rules. What has weighed with the Tribunal is the factum of issuance of subsequent orders extending the suspension for a further period referred to in the respective orders. Suffice it to observe that the finding of fact recorded by the Tribunal is an error apparent on the face of the record, considering the tenor of the original Suspension Order dated 17th June, 2000.

44. The next question is: What is the effect of the review undertaken from time to time for extending the suspension for further period? For the view already taken, it will have to be held that the successive extension orders passed by the Authority would be of no avail. Inasmuch as, even if the Authority intends to invoke powers under Rule 3(7)(a) read with Rule 3(7)(c) in the matter of suspension order issued in exercise of powers under Rule 3(3), it could only revoke the order before termination of all proceedings relating to the criminal charge contained against the official. This is reinforced from the mandate of Rule 3(3). As per that provision, the Authority can either issue suspension order until the termination of all proceedings relating to the stated criminal charge against the official or decide not to exercise that power at all. That would include power to revoke the suspension before the termination of the stated criminal proceeding against the official. However, in the name of review of suspension order, the Authority cannot reduce the period of suspension specified in Rule 3(3), i.e, until the termination of all proceedings in respect of the stated criminal charge against the official concerned. In that sense, the successive orders issued by the Authority are not in conformity with the mandate of Rule 3(3). Therefore, the same will have to be treated as non est in the eye of law, as it was not open to the Authority to specify suspension period lesser than the period mentioned in Rule 3(3). We are conscious of the fact that it is respondent No. 1 who has challenged the impugned suspension orders passed by the Appropriate Authority; but we cannot be oblivious to the mandate of law, which obligates the Authority to act in a particular manner provided in Rule 3(3). The successive orders issued by the Appropriate Authority, by no standards, can be construed as “revoking the original suspension order” dated 17th June, 2000. In absence of an express order passed by the Authority to revoke the original suspension order, it is not open for respondent No. 1 to rely on the subsequent orders passed, purportedly under Rule 3(8); and contend that, the same has become invalid on account of expiry of the period provided in the said provision. As aforesaid, Rule 3(8) applies only to suspension orders in respect of other situations [other than governed by Rule 3(3)], which operate only for a limited period and are required to be reviewed and extended from time to time. On the other hand, in the cases covered by Rule 3(3), the suspension ought to operate until the termination of all proceedings relating to the stated charge against the official concerned, unless revoked by the Competent Authority in earlier point of time. The fact that the Authority has power to review and revoke suspension order passed under Rule 3(3) cannot bestow power in the Authority to issue suspension order for a period, which is not consistent with the mandate of Rule 3(3). Suffice it to observe that the successive impugned orders passed by the Authority will have to be ignored, having been issued under mistaken belief by the Authority, and more particularly because the Competent Authority could not have issued such orders in the fact situation of the present case, which is governed by Rule 3(3) of the Rules.

45. Assuming that it was open to the Competent Authority to review the order for the purpose of limiting the period of suspension for a lesser period than the period specified in Rule 3(3), in the present case, the original suspension order dated 17th June, 2000 provided for continuance of suspension of respondent No. 1 until further orders. The said order was in force when the Competent Authority reviewed the case of respondent No. I and issued order dated 17th December, 2000. By the subsequent order, the suspension was to continue for a further period of three months therefrom (i.e up to March, 2001). That order was followed by another extension order dated 10th February, 2001. which stated that the suspension period would continue for a “further period of three months from the date of expiry of the earlier period of three months from the order of continuation of suspension dated 17th December. 2000”. The fact remains that, before the expiry of period specified in order dated 17th December. 2000, the order for granting further extension of suspension period was issued by the Authority. That order of extension was to continue for a period of three months from March 2001 (i.e upto June, 2001). Before expiry of three months, another order was issued on 17th April. 2001, stating that the suspension would continue for a further period from 17th March, 2001 till 17ih June, 2001. Thus, until 17th June, 2001, a valid suspension order issued by the Authority against respondent No. 1 was operating. If the Authority intended to continue the suspension period beyond 17th June, 2001, it ought to have examined the proposal and issued order for continuation of the suspension period before 17th June, 2001. Since further extension order was not issued by the Authority before 17th June, 2001, at best, it would be open to respondent No. 1 to contend that the continued suspension on and after 18th June, 2001 had become illegal. By no standards, it could be contended by respondent No. 1, as has been held by the Tribunal, that the continued suspension of respondent No. 1 on and from 16th September, 2000 had become invalid.

46. Be that as it may, as is noticed earlier, in cases covered under Rule 3(3), review of suspension for extension of the suspension period is not envisaged at all. Inasmuch as, the suspension of member of the Service, is, in law, made co-terminus with the termination of all proceedings relating to the stated criminal charge against him. The only other possibility is revocation of the original suspension order by the Competent Authority before the termination of all proceedings relating to the stated criminal charge against the official. In other words, the mandate of Rule 3(3) gives no other option to the Competent Authority but to place the official concerned under suspension until termination of proceedings relating to stated criminal charge pending against him. That is the only way the provision in Rule 7(a) and (c) read with Rule 8(a) can be harmonised with the purport of Rule 3(3) of the Rules. Taking any other view would negate the express intent in Rule 3(3) of the Rules to place the official concerned under suspension until the termination of all proceedings relating to the stated criminal charge pending against him. Admittedly, in the present case, the Competent Authority has not exercised discretion in favour of respondent No. 1 to revoke the original suspension order issued under Rule 3(3). Understood thus, the subsequent orders issued by the Competent Authority cannot take the matter any further for respondent No. 1. Respondent No. 1 cannot succeed on the basis that the Competent Authority has issued subsequent suspension orders to operate for limited duration; and no review was done before the expiry of the currency of the original or extended suspension order.

47. We are of the considered opinion that the Tribunal has completely glossed over the mandate of Rule 3(3) and was more impressed by the words “suspension made under this Rule” contained in Rule 3 (7) and (8).

48. We may now advert to the case of the petitioners that another criminal case has been instituted against respondent No. 1 on 19th October, 2005, being Special Case No. 62 of 2005 on the criminal charge of possessing disproportionate assets. However, we are in agreement with the finding of the Tribunal that the Appropriate Authority has not passed any separate order under Rule 3(3) to place respondent No. 1 under suspension in connection with the second criminal case instituted against him. Indeed, the Government/Appropriate Authority was competent to proceed against respondent No. 1 separately under Rule 3(3) of the said Rules in connection with the second criminal case registered against him. However, having failed to do so, it is not necessary for us to dilate on that matter while making it clear that it would be still open to the Government/Appropriate Authority to exercise power under Rule 3(3) and all other enabling powers contained in the Rules against respondent No. 1 to place him under suspension in connection with the second criminal case.

49. The only other issue that was specifically raised by respondent No. 1 before the Tribunal, but has not been answered, is about the efficacy of the amendment to Rule 3, which has come into force with effect from 30th September, 2009. The Tribunal, having answered the controversy on the basis of interpretation of unamended Rule 3, did not think it necessary to examine the said issue. As we have overturned the interpretation given by the Tribunal to the unamended Rule 3 of the Rules, in our opinion, it would be appropriate that the parties are relegated before the Tribunal to examine the effect of the amended Rule 3, which has come into force with effect from 30th September, 2009, and the application thereof to the fact situation of the present case. We do not think it appropriate to examine that question for the first time in this Writ Petition. Accordingly, even though the petitioners have succeeded in this petition on other issues, we would relegate the parties before the Tribunal for considering the question about the effect of amended Rule 3, which has come into force with effect from 30th September, 2009, and its application to the fact situation of the present case. That issue will have to be answered by the Tribunal on its own merits, in accordance with law.

50. Taking overall view of the matter, therefore, we are inclined to partly allow this Writ Petition.

51. Accordingly, we pass the following order:—

(a) Rule is made partly absolute. The impugned decision of the Tribunal dated 19th February, 2010, is quashed and set aside, and, instead, Original Application No. 482 of 2007 filed by respondent No. 1 is restored to the file of the Tribunal to its original number for the limited purpose of considering the question regarding the efficacy of amended Rule 3, which has come into force with effect from 30th September, 2009, and its application to the fact situation of the present case.

(b) The above issue will have to be decided on its own merits, in accordance with law. We hope and trust that the Tribunal will decide the said issue expeditiously, as the Original Application pertains to year 2007.

Petition partly allowed.

provision of Rule 3

State Of Maharashtra And Another v. A.K Jain And Another

Structured Summary of the Opinion (A.M. Khanwilkar, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (State / Government)

Respondent No. 1's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

State Of Maharashtra And Another v. A.K Jain And Another

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