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TMI Blog2018 (12) TMI 1980X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to extend the suspension for a further period of 180 days. On completion of that period, another order was passed on 03.08.2018 stating that in addition to the allegations which were already made against him, another complaint was received against him and accordingly a decision was taken to continue the suspension for a further period of 180 days from 07.08.2018 without change in quantum of subsistence allowance that was being paid to him. 2. This OA is filed challenging the order of initial suspension dated 10.11.2017 and orders of extension of suspension dated 06.02.2018 and 03.08.2018 as being illegal, arbitrary and discriminatory. A prayer is also made to declare that the applicant is deemed to have been reinstated into service on expiry of 90 days from the date of initial suspension. 3. The applicant contends that in view of the judgment of the Hon'ble Supreme Court in Ajay Kumar Choudhary vs. Union of India and Another (2015) 7 SCC 291, and the resultant office memorandum dated 23.08.2016 issued by the DoP & T, the suspension beyond 90 days became untenable, inasmuch as neither in the departmental proceedings nor in the criminal case charge sheet was filed. Reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet is filed, and that is also being flouted by the respondents. He submits that the judgment of Delhi High Court in Dr. Rishi Anand's case (supra) is per incuriam and is contrary to the judgment of Supreme Court and the respondents cannot place any reliance upon the same. 7. Shri R.K. Jain, learned counsel for the respondents, on the other hand, submits that the charges against the applicant are very serious in nature. He contends that apart from allegation of his involvement in the smuggling of Red Sanders, fresh allegations were also received and in that view of the matter, it became inevitable for extending the suspension awaiting the conclusion of the investigation. He submits that observations of the Hon'ble Supreme Court in Ajay Kumar Choudhary's case relied upon by the applicant are obiter in nature and the same was explained by the Delhi High Court in Rishi Anand's case. 8. The question as to whether the suspension of an employee can be extended beyond 90 days became the subject matter of the legislative exercise and judicial pronouncements. Rule 10 of CCS (CCA) Rules, 1965 deals with the suspension of an employee of the Central Government Services. Sub-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore expiry of the extended period of suspension, i.e. 21.06.2013, the employee shall be reinstated into service. Time frame was also fixed for completion of disciplinary proceedings. 11. The Union of India filed a writ petition challenging the order of the Tribunal in the Punjab and Haryana High Court. According to it, the direction issued by the Tribunal amounted to rewriting the relevant provision in the CCS (CCA) Rules, 1965. The High Court allowed the writ petition and has set aside the order passed by the Tribunal. It directed the Government to decide whether or not to continue suspension, and to pass an order in that behalf within two weeks. 12. The order of the High Court was appealed against before the Hon'ble Supreme Court. Various judgments on the subject as well as the European Convention on Human Rights, in particular, Article 61 thereof, Section 167(2) of Cr.P.C. 1973 and Article 21 of the Constitution of India were taken into account. In para 21 of the Judgment, the Hon'ble Supreme Court observed as under:- "21. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that it was not issued by the competent authority, following the judgment of Hon'ble Supreme Court in Union of India v. B.V. Gopinath (2014) 1 SCC 361. The Tribunal has also set aside the order of suspension on the ground that it was continued for quite a long time. The Hon'ble Supreme Court upheld the first part of the order but left it open to the Government to issue fresh charge sheet. On the question of suspension, it observed as under:- "20. The first Respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr. P. Chidambaram, learned Senior Counsel appearing for the first Respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first Respondent under suspension pending criminal trial. There is no doubt that the allegations made agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court, and still the order of suspension was not interfered with, discloses that such a hard and fast rule cannot be culled out. In paras 23 & 24 of the judgment, the High Court observed as under:- "23. Thus, there is no force in the submission of the respondent that the suspension of the respondent automatically lapsed since the charge sheet was not issued within the initial period of 90 days. Pertinently, the respondents suspension was reviewed and extended by the government within the initial period of 90 days on 27.09.2016. Thus, the suspension of the respondent did not lapse under sub-rule (7) of Rule 10 CCS (CCA) Rules. 24. We are of the considered view that in the facts of the present case, the impugned order was certainly not called for, revoking the suspension of the respondent. When the O.A. was preferred, the charge sheet had already been issued to the respondent on 01.03.2017. At the highest, the tribunal could have called upon the petitioner to justify its extension by passing a reasoned order. It was not for the tribunal to step into the shoes of the administration, and to take a decision - which only the administration can take, on the issue whether the susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court as contained in the beginning of para 21 of the judgment in Ajay Kumar Choudhary's case cannot be treated as a binding principle. 17. Finding ourselves in such a situation, we make an effort to understand the issue, making it abundantly clear that even in the remotest sense, we do not intend any disrespect to the judgments of the Hon'ble Supreme Court or the High Court. 18. It appears that the Delhi High Court took note of the principles pertaining to the ascertainment of ratio decidendi of a precedent while deciding Dr. Rishi Anand's case. One of the difficult tasks for a Court or a Tribunal is to distinguish the ratio deci dendi from an obiter dicta. It is fraught with several uncertainties and any mistake is bound to be taken as a failure, if not a refusal, to follow an otherwise binding precedent. Therefore, one has to be careful in this regard. 19. Almost every acclaimed Jurist devoted considerable time in their respective treatises, to evolve the principles or doctrines in this regard. Salmond on Jurisprudence has this to say about the ratio deci dendi:-(See Salmond on Jurisprudence, Twelfth Edition, page 178) "The ratio decidendi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l" test of Professor Wambaugh suggested that we should take the proposition of law put forward by the judge, reverse or negate it, and then see if its reversal would have altered the actual decision (h). If so, then the proposition is the ratio or part of it; if the reversal would have made no difference, it is not. In other words the ratio is a general rule without which the case would have been decided otherwise." 21. It was held in Dr. Rishi Anand's case that the very fact the observations of the Supreme Court that the suspension cannot be continued beyond 90 days in case no charge sheet is filed within that time, were not applied in that case; would lead to the conclusion that the said principle cannot be ascribed the status of ratio decidendi 22. Further, there would not have been any necessity for us to undertake any discussion on this aspect had Rule 10(7) of the CCS (CCA) Rules, 1965 was interpreted or any portion of it was struck down, denuding the Government of the power to continue the suspension beyond 90 days if no charge sheet is filed. 23. The authority of a precedent and its binding nature is certainly high, when the issue decided therein is not covered by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Delhi High Court has already undertaken an extensive exercise. Even by now, Rule 10(7) remains in its original form, nor it was interpreted to mean something different. In Gurnam Kaur's case (supra), the Hon'ble Supreme Court laid down the principles as regards the binding precedents that too in the context of Article 141 of the Constitution of India. The relevant portion reads as under:- "10. It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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