Shri A.K. Bhardwaj: As is provided under Rule 10 (2) of CCS (CCA) Rules 1965 (for short Rules 1965), a Government servant shall be deemed to have been placed under suspension by an order of Appointing Authority with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours. For easy reference, aforesaid rule is extracted hereinbelow:- (2) a Government servant shall be deemed to have been placed under suspension by an order of Appointing Authority- (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours; (b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
2. In terms of general instructions issued by the Department of Personnel & Training vide O.M. No.11012/8/87-Estt. (A), dated 22.6.1987, Government takes a very serious view of offences against women. Relevant excerpt of said O.M. reads as under:- 2. As Government takes a very serious view of offences against women, Government has reviewed the provisions in the rules in regard to placing a Government servant under suspension if he is accused of involvement in a case of dowry death as defined in Section 304-B of the Indian Penal Code. The Section reads as follows:- 304-B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand, for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. Explanation For the purpose of this sub-section, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
3. In O.M. No.11012/8/2003-Estt. (A), dated 23.10.2003, it is further clarified that a Government servant shall be deemed to have been placed under suspension by an order of the Appointing Authority with effect from the date of his detention, and such suspension will continue to be operative unless modified or revoked under sub-rule 5 (c), as provided under sub-rule (a) of Rule 10 of the Rules. The said O.M. reads as under:- (5) Deemed suspension to continue to be operative unless modified or revoked Rule 10 (2) of the CCS (CCA) Rules, 1965 provides that a Government shall be deemed to have been placed under suspension by an order of the Appointing Authority with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours.
2. A question whether the order of suspension in a case covered under Rule 10 (2) of the CCS (CCA) Rules, 1965 has limited operation for the period of detention and not beyond it, was considered by the Supreme Court in the case of Union of India v. Rajiv Kumar [2003 (5) SCALE 297]. Allowing the appeals of the Union of India in this case, the Supreme Court has held that the order in terms of Rule 10 (2) is not restricted in its point of duration or efficacy to the actual period of detention only. It continues to be operative unless modified or revoked under sub-rule (5) (c) as provided in sub-rule 5 (a) or Rule 10 of the CCS (CCA) Rules, 1965.
3. Ministries / Departments are requested to bring the above ruling of the Supreme Court to the notice of all concerned so that the same is appropriately referred to in all cases where the question of validity of continued suspension after release from detention of a Government servant comes up for consideration before the CAT, High Court or Supreme Court.
4. Instructions for regulating the suspension during pendency of criminal proceedings, arrest and detention, which contained in O.M. No.F.15(8)-E. IV/57, dated 28.3.1959 issued by the Govt. of India, Ministry of Finance, read as follows: (14) Regulation of suspension during pendency of criminal proceedings, arrest and detention. The cases of suspension during pendency of criminal proceedings or proceedings for arrest, for debt or during detention under a law providing for preventive detention, shall be dealt with in the following manner hereafter:- (a) A Government servant who is detained in custody under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension from the date of detention until further orders as contemplated in Rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Government servant who is undergoing a sentence of imprisonment shall be also dealt with in the same manner pending decision on the disciplinary action to be taken against him. (b) A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g., a person released on bail) may be placed under suspension by an order of the Competent Authority under Clause (b) of Rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. If the charge is connected with the official position of the Government servant or involving any moral position of the Government servant or involving any moral turpitude on his part, suspension shall be ordered under this rule unless there are exceptional reasons for not adopting this course. (c) A Government servant against whom a proceeding has been taken for arrest for debt but who is not actually detained in custody may be placed under suspension by an order under Clause (a) of Rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, i.e., only if a disciplinary proceeding against him is contemplated.
5. As is provided in O.M. No.30/59/54-Ests.(A), dated 25.2.1955 issued by the Govt. of India, Ministry of Home Affairs, it is the duty of a Government servant, who may be arrested for any reasons, to intimate the fact of his arrest and the circumstances connected therewith to his official superior promptly even though he might have subsequently been released on bail. The said instructions read as under:- (3) Report of arrest to superiors by Government servants. It shall be the duty of a Government who may be arrested for any reasons to intimate the fact of his arrest and the circumstances connected therewith to his official superior promptly even though he might have subsequently been released on bail. On receipt of the information from the person concerned or from any other source, the departmental authorities should decide whether the fact and circumstances leading to the arrest of the person call for his suspension. Failure on the part of any Government servant to so inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the action that may be called for on the outcome of the Police case against him.
6. In the present case, admittedly, the applicant was arrested on 15.12.2008 by the Police and was discharged / released on 31.12.2008 from the charges leveled against him by the Special Executive Magistrate, South District New Delhi. In the meantime, he had been released on bail on 18.12.2008 by the said Magistrate. It is true that on account of his arrest and detention for a period of beyond forty-eight hours, the applicant could be placed under deemed suspension but such exercise could be done immediately after 15.12.2008 or at least before 31.12.2008, i.e., the date when he was discharged from the charges leveled against him. It is relevant to note that the charges leveled against the applicant were under Sections 107/151 Cr. PC. Under Rule 10 (5) (b) of the Rules 1965, it is provided that a Government servant deemed to have been suspended whether in connection with any disciplinary proceeding or otherwise, shall continue to be under suspension until the termination of all or any of such proceedings.
7. In terms of general instructions issued from Ministry of Personnel & Training vide O.M. No.11012/16/85-Estt.(A), dated 10.1.1986, the period of deemed suspension on ground of detention should be treated as duty in all cases where conviction did not follow. Such general instructions read as under:- (9) Period of deemed suspension due to detention by police to be treated as duty, if not followed by conviction. 1. In the Committee of National Council (JCM) set up to review the CCS (CCA) Rules, 1965, the Staff Side had expressed the view that the period of deemed suspension on grounds of detention should be treated as duty in all cases where conviction did not follow. The matter was discussed and it was agreed to that in cases of deemed suspension, if the cause of suspension ceases to exist, the revocation of the suspension should be automatic.
2. Attention is invited to the instructions contained in this Departments O.M. No.35014/9/76-Estt. (A), dated 8-8-1977 (copy enclosed) which provides that in the case of a Government servant, who was deemed to have been placed under suspension due to detention in police custody erroneously or without basis and thereafter released without any prosecution having been launched, the competent authority should apply its mind at the time of revocation of the suspension and reinstatement of the official and if he comes to the conclusion that the suspension was wholly unjustified, full pay and allowances may be allowed. These instructions may be kept in view and scrupulously complied with in all cases where deemed suspension is found to be erroneous and the employee concerned is not prosecuted. In all such cases, the deemed suspension under Rule 10 (2) of CCS (CCA) Rules, 1965, may be treated as revoked from the date the cause of the suspension itself ceases to exist, i.e., the Government servant is released from police custody without any prosecution having been launched. However, it will be desirable for the purpose of administrative record to make a formal order for revocation of such suspension under Rule 10 (5) of the CCS (CCA) Rules, 1965.
8. In view of the aforementioned, once the proceedings, i.e., preventive action under Sections 107/151 Cr. PC, during pendency of which the applicant was arrested, terminated with discharge of the applicant way back on 31.12.2008, there could be no justification to place him under suspension vide impugned order dated 31.5.2011. The said order is totally misconceived, baseless and unfounded. Accordingly, the same is quashed and set aside. The respondents are directed to reinstate the applicant forthwith. Period of suspension shall be treated as spent on duty.
9. O.A. is accordingly allowed. No costs. ( A.K. Bhardwaj ) ( Dr. Veena Chhotray ) Member (J) Member (A) /sunil/