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Bomana Chander v/s Union of India & Others

    WP. No. 8168 (W) of 2019

    Decided On, 26 August 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MRS. JUSTICE AMRITA SINHA

    For the Petitioner: Ajeya Mitra, Kamal Krishna Chakrabarti, Advocates. For the Respondents: Debapriya Gupta, Advocate.



Judgment Text

The petitioner is a field worker of the Airport Health Organisation, Kolkata. He was arrested on 3rd July, 2018 in connection with a criminal case under Section 104 of the Customs Act, 1962. The petitioner was in custody till 24th August, 2018 when he was enlarged on bail by the Court of the learned Chief Judicial Magistrate, Barasat.

By an order dated 6th July, 2018 the petitioner was put under deemed suspension with effect from his date of detention i.e. 3rd July, 2018. The petitioner was informed that in terms of Rule 10(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 he shall remain under suspension until further orders.

The order of suspension was reviewed by the Review Committee as per Rule 10(6) of the Central Civil Servants (Classification, Control and Appeal) Rules, 1965 [CCA(CCS) Rules] and the period of suspension was extended for a period of 90 days beyond 4th October, 2018. The said order of suspension was again reviewed and the period of suspension was extended for a further period of 90 days with effect from 3rd July, 2019. The petitioner filed the instant writ application in April, 2019 with the prayer for setting aside the impugned order of suspension.

The primary contention of the petitioner is that the order of suspension cannot continue for an indefinite period. The 'deemed suspension' is liable to be restricted only for the period during which the petitioner was in custody. The moment the petitioner obtained bail from the learned Court the authority ought to permit the petitioner to join his service. The petitioner made representation before the respondent authority with a request to permit him to join his duty.

The petitioner is receiving 75% of his emoluments with effect from 4th October, 2018 as suspension allowance.

The petitioner relies upon the judgment delivered by this court in the matter of Ayub Ali vs State of West Bengal reported in 2005(1) Cal LJ 362 wherein the court held that when an employee is arrested in connection with a criminal case and consequently detained in the jail custody beyond 48 hours he should be deemed to have been suspended during the period of detention and the employer is not required to pass any formal order of suspension. The employee should be deemed to be under suspension. But, the moment the employee is released from detention by the competent court, "deemed suspension" would come to an end and he should be permitted to join his duty, subject to the final decision in the criminal case.

The learned court passed the said order relying upon a judgment delivered by this court in the matter of Basudev Malik vs State of West Bengal reported in (2004)1 CHN 32. The court, in the said matter took into consideration the fact that the petitioner was arrested for an alleged offence committed beyond the scope of his duty. The said offence was neither directed against the employer nor against the institution in question. The court held that so long as the criminal proceeding was not concluded and the petitioner was not found guilty there was no scope for initiating proceeding against the petitioner. The court further held that the employer did not have any right to suspend the employee merely because a criminal proceeding was initiated against him.

The petitioner also relied upon a judgment delivered by this court in the matter of Chhabi Chakraborty vs State of West Bengal reported in (2006)1 CHN 34. In the said case the court decided the point of effective period of deemed suspension. While deciding the said case the court took into consideration the judgment delivered by the Hon'ble Supreme Court in the matter of Union of India vs Rajiv Kumarreported in (2003) 6 SCC 516. The Supreme Court in the said case observed that Rule 10(2) CCS(CCA) Rules, 1965 creates a legal fiction. The suspension is deemed to have been passed by operation of the legal fiction. No actual order is required to be passed. It does not speak of any period of its effectiveness. The court held that whenever an order of suspension is passed in contemplation of a disciplinary proceeding, the authority concerned should issue charge sheet within a reasonable time if the rule is silent, and the authority should conclude the same within a reasonable time. The employee cannot be kept under suspension for an indefinite period and the employer also cannot adopt a dilatory tactics to victimise the employee. The order of suspension touches the right to livelihood and the provisions of Article 21 of the Constitution of India are attracted. A person cannot be kept under suspension for years together without any departmental proceeding. The court held that, normally, an employee is suspended to keep him away, from the place of his work, so that he cannot influence the proceeding which is contemplated or continuing.

The petitioner prays for a direction upon the respondent authorities to set aside and quash the impugned orders of suspension and to allow him to join his duties with full salary and allowances.

The learned advocate appearing on behalf of the respondents submits that the writ petition is liable to be dismissed on the ground of suppression, misstatement or distortion of relevant facts. It has been submitted that the petitioner has intentionally and deliberately suppressed the fact that he was placed under suspension on earlier occasions. In the year 1998 the petitioner was placed under suspension on the offence of consumption of alcohol and gambling inside the protected place. He also tried to assault the superior officers and teased female nurses in an inebriated state. The petitioner preferred a mercy petition and considering his financial hardship, a lenient stand was taken and suspension was withdrawn.

In 2005, the petitioner absented from duty without prior intimation. He returned in an inebriated state and damaged furniture and office vehicles. In the course of inquiry the petitioner furnished an undertaking not to commit any offensive act in future. On consideration of such undertaking the suspension was withdrawn.

In the year 2010 he committed the offence of assaulting senior officers showing insubordination, disrespect and did not discharge his service duties. A departmental proceeding was initiated and he was found guilty. He was punished by imposition of minor penalty and his pay scale was reduced by two stages.

In the year 2012 the petitioner suffered a decree against him and the Court directed the authority to deduct an amount from his salary for satisfaction of the decreetal amount.

During the pendency of the instant writ petition the respondent received two notices from the learned Small Causes Court, Sealdah, 24 Parganas, North under Order 21 Rule 48 of the Code of Civil Procedure for attachment of the salary of the petitioner for satisfaction of the decreetal amount.

The respondents have submitted that the petitioner was put under deemed suspension in accordance with Rule 10(2) CCS(CCA) Rules, 1965. The Suspension Review Committee of the Directorate General of Health Services, New Delhi reviewed the suspension order of the petitioner and extended the same, from time to time, as per law.

It has been submitted that the aforesaid actions of the petitioner together with his involvement in the criminal case involves moral turpitude and the respondents are contemplating disciplinary action against him.

The respondents rely upon the decision delivered by the Hon'ble Supreme Court in the matter Rajiv Kumar (supra) paragraphs 14, 15, 17, 18 and 26 wherein the court held that the order of suspension does not lose its efficacy and is not automatically terminated the moment the detention comes to an end and the person is set at large. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made the same continues by the operation of Rule 10(5)(a) and the employee has no right to be reinstated in service. The court held that it is a well settled principle in law that the court cannot read anything into a statutory provision or rewrite a provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute or in statutory provision is the determinative factors of legislative intent of policy makers.

The court concluded that the order in terms of Rule 10(2) is not restricted in its point of duration or efficacy to the period of actual detention only. The same continues to be operative unless modified or revoked under sub Rule 5(c), as provided under sub Rule 5(a).

I have heard the submissions made on behalf of both the parties. The petitioner is governed by the CCS (CCA) Rules, 1965. Rule 10 of the said Rules deals with suspension. According to Rule 10(1) the authority may place a government servant under suspension (a) where a disciplinary proceeding against him is contemplated or is pending or; (aa) where, in the opinion of the authority the employee has engaged himself in activities prejudicial to the interest of the security of the State or; (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

As per Rule 10(2) 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, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours.

Rule 5(a) says that the order of suspension made or deemed to have been made shall continue to remain in force until it is modified or revoked by the competent authority.

Rule 5(c) mentions that an order of suspension made or deemed to have been made may, at any time, be modified or revoked by the authority.

Rule 6 lays down that an order of suspension made or deemed to have been made shall be reviewed by the competent authority, to modify or revoke the suspension, before expiry of 90 days on the recommendation of the Review Committee, constituted for the purpose and pass order either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding 180 days at a time.

According to Rule 10(7) an order of suspension made or deemed to have been made under sub Rule 1 or sub Rule 2 shall not be valid after a period of 90 days, unless, it is extended after review, for a further period before the expiry of 90 days.

In conformity with the aforesaid Rules the Suspension Review Committee reviewed the suspension order of the petitioner. The minutes of the said Committee reflects that the Committee took into consideration the present position of the case in which the petitioner was arrested. It noted that, the case has been adjudicated by the adjudicating authority being the Additional Commissioner of Customs (Port) and vide an adjudicating order dated 3rd April, 2019 the goods have been confiscated and a penalty of Rs. 5,00,000/-(five lac) has been imposed upon the petitioner.

Keeping in view the gravity of the offence and involvement of moral turpitude, the members of the Committee were of the view, that apart from continuation of the order of suspension, the disciplinary authority may take proper departmental action against the petitioner on the basis of the report and the order of the adjudicating authority of the Directorate of Revenue Intelligence in terms of Rule 19 of CCS(CCA) Rules, 1965. The suspension of the petitioner has been extended for a further period of 180 days with effect from 2nd July, 2019 to 28th December, 2019.

The provision for suspension entitles the employer to place an employee under suspension where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Admittedly, a criminal case against the petitioner is pending consideration before an appropriate forum. At the same time the employer is contemplating initiating departmental proceeding against him.

The plea of the petitioner that the offence in question is no way connected with the service of the petitioner and accordingly the order of suspension is liable to be revoked does not hold good in the facts and circumstances of the instant case, inasmuch as, the law according to which the petitioner is guided, empowers the employer, to place under suspension, any employee, in respect of whom any criminal offence is under investigation, inquiry or trial. The said provision does not mention that the criminal offence has to be restricted to the work place of the employee. In the absence of any such restriction the employer is justified in placing the employee under suspension regardless of the fact whether the offence related to the work place or not.

The Hon'ble Supreme Court in the matter of Rajiv Kumar (supra) observed that Rule 10(2) is a deeming provision. The same does not require an actual order of suspension to be passed. The suspension comes into operation by legal implication, the moment the government servant it taken in custody.

The order of deemed suspension w

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as duly reviewed by the Suspension Review Committee and a formal order of suspension, extending the period of suspension, has been passed on regular intervals, in accordance with the provision of the Rule. The Hon'ble Supreme Court upheld the said provision and held that the suspension continues to be operative unless the same is modified or revoked. As the authority has thought it fit to extend the period of suspension of the petitioner, in accordance with law, there is no reason for interference in the instant case. No relief can be granted to the petitioner. None of the judgments relied upon by the petitioner will be applicable in the facts and circumstances of the instant case as in the said cases suspension rules were different. The Court in the matter of Chhabi Chakraborty (supra) clearly laid down that the Primary Education Rules and the CCA(CCS) Rules were not pari materia. The case of Ayub Ali was also dealt with in accordance with the Primary Education Rules. The Management Rules as referred to in the case of Basudev Malik is also not pari materia with the CCA(CCS) Rules where there is a specific provision for extension of the period of deemed suspension. Accordingly, the ratio laid down in the said cases does not come to the aid of the petitioner. WP No. 8168 (W) of 2019 is dismissed. Urgent certified photo copy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of necessary formalities.
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