TMI Blog2017 (9) TMI 2005X X X X Extracts X X X X X X X X Extracts X X X X ..... had been served with a charge sheet sometime after 09.09.2014, i.e. nearly three years after his suspension. There can be no quarrel with the proposition that a government servant who is suspended in contemplation of a disciplinary proceedings or criminal proceedings under Rule 10 of the CCS (CCA) Rules, should not be kept under suspension indefinitely or unnecessarily. It is for this reason that a review of the on-going suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules - It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons. At the same time, there may be cases where the conduct of the government servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitising the environment so that he may not interfere in the proposed inquiry. On a reading of Ajay Kumar Choudhary, the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the government servant before, or after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VIPIN SANGHI, J. (ORAL) Cav. No.815/2017 Since the caveator has put in appearance, the caveat stands discharged. C.M. No. 33424/2017 Exemption allowed, subject to all just exceptions. The application stands disposed of. W.P.(C) 8134/2017 C.M. No. 33423/2017 1. Learned counsel for the respondent/ caveator has appeared. We have heard learned counsels for the parties. With their consent, we proceed to dispose of the petition at this stage itself. 2. The petitioner has preferred the present petition to assail the order dated 29.05.2017 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (CAT/ Tribunal) in O.A. No. 1785/2017. The respondent/ applicant had preferred the said O.A. to assail his continuing suspension which had exceeded 90 days. The tribunal has allowed the O.A. on the very first day of hearing by placing reliance on the decision of the Supreme Court in Ajay Kumar Choudhary v. Union of India Anr., (2015) 7 SCC 291. Consequently, the continued suspension of the respondent beyond the initial period of 90 days, vide orders dated 27.09.2016 and 07.04.2017 was quashed. The respondent was directed to be reinstated wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence...... Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. 2. In compliance of the above judgement, it has been decided that where a Government servant: is placed under suspension, the order of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the charged officer. As such, it should be ensured that the charge sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne, namely, issuance of charge sheet within a period of 90 days of suspension, is not adhered to. 9. On the other hand, the submission of learned counsel for the respondent is that in Ajay Kumar Choudhary (supra), the Supreme Court had held that the currency of suspension should not extend beyond three months if, within that period, the memorandum of charge/ charge sheet is not served on the delinquent employee and, even if a memorandum of charge/ charge sheet is served, a reasoned order must be passed for extension of suspension. 10. We have heard learned counsels for the parties and considered their submissions. We have also perused the decision of the Supreme Court in Ajay Kumar Choudhary (supra). In Ajay Kumar Choudhary (supra), the appellant had assailed his suspension even before issuance of the charge sheet. He had been suspended with effect from 30.09.2011 and the Supreme Court observed that the same has been extended and continued ever since . 11. In the said case, the tribunal had directed that if no charge memo was issued to the appellant Ajay Kumar Choudhary before the expiry of 21.06.2013, then he would be reinstated in service. The said order was assailed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the stand adopted by us . 13. It appears that before the Supreme Court rendered its decision on 16.02.2016, the charge sheet had been served on the appellant though from a reading of the decision it is not clear as to on what date the same was so served. This development was taken note of by the Supreme Court in its decision. In para 22 of the decision, the Supreme Court observed: 22. So far as the facts of the present case are concerned, the appellant has now been served with a charge-sheet, and, therefore, these directions may not be relevant to him any longer. However, if the appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the respondents will be subject to judicial review . (emphasis supplied) 14. Thus, even though the charge sheet had not been served on the appellant Ajay Kumar Choudhary when he initially assailed his suspension, or even till the hearing of the appeal took place before the Supreme Court on 09.09.2014 (it was only between 09.09.2014 and the date of decision on 16.02.2015 that the charge sheet appears to have been served), the Supreme Court held that since the charge sheet had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not denuded the Government of its authority to continue/ extend the suspension of the government servant before, or after the service of the charge sheet if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/ charge-sheet is not issued within three months of suspension, the suspension of the government servant shall automatically lapse, without any further order being passed by the Government. No such consequence of the automatic lapsing of suspension at the expiry of three months if the charge memo/ charge-sheet is not issued during that period, has been prescribed. In Kailash Vs. Nanhku Others, AIR 2005 SC 2441, while examining the issue: whether the obligation cast on the defendant to file the written statement to the plaint under Rule (1) of Order 8 CPC within the specified time was directory or mandatory i.e. whether the Court could extend the time for filing of the written statement beyond the period specified in Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the respondent has argued that since the charge sheet/ charge memo was not served on the respondent within the initial 90 days of suspension, the suspension of the respondent automatically lapsed. Under Rule 10 of the CCS (CCA) Rules, there is no automatic reinstatement of a suspended government servant upon expiry of 90 days, or the extended period of suspension if, by the date of expiry of such suspension/ extended period of suspension, the charge sheet is not issued. The only circumstance in which the suspension of the government servant lapses automatically is the one contained in sub-rule (7) of Rule 10. The same reads as under: (7) An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days. Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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