2. Petitioner is working as Junior Special Education Teacher. She was placed under suspension by order dated 16.05.2018 pending initiation of disciplinary proceedings. The said suspension is reviewed from time to time. On 09.08.2019, suspension from service was further extended, valid up to 06.02.2020. On 02.03.2020, Review Committee Meeting was held and a decision was taken to further extend period of suspension. Accordingly, on 03.03.2020, order of extension of suspension was passed. This order is challenged in the present writ petition.
3. Petitioner also challenges the initiation and continuation of disciplinary proceedings against her. However, during the course of arguments, learned counsel for the petitioner seeks leave of the Court to confine the prayer in the writ petition to further extension of suspension and grievance against initiation and continuation of disciplinary proceedings to be left open to be urged after conclusion of the disciplinary proceedings. Leave as sought for is granted.
4. Against the order of suspension, the principal ground of challenge is that it is in violation of Rule 10 (6) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, ‘the Rules’). According to learned counsel for the petitioner, Rule 10 (6) of the Rules requires review of suspension before expiry of the period of suspension or extended period of suspension. Admittedly, review of suspension was not undertaken before the expiry of the time fixed in the Rule and therefore it is in violation of the mandate of Rule 10 (6) of the Rules. Learned counsel also placed reliance on the judgment of the Hon’ble Supreme Court in Union of India and others v. Dipak Mali (2010) 2 SCC 222), particularly paragraph 11 of the said judgment.
5. Learned standing counsel submits that the reason for repeated extension of suspension is that the petitioner is not cooperating in early conclusion of the disciplinary proceedings and as the charges levelled against the petitioner are grave, it is felt desirable to continue suspension pending conclusion of the disciplinary proceedings. According to him, having regard to the nature of allegations made, it is not in public interest to continue the petitioner in service pending finalization of the disciplinary proceedings.
6. Whether petitioner is not cooperating in conclusion of the disciplinary proceedings is entirely different aspect. The competent authority is not without power or helpless in concluding the disciplinary proceedings, even if the delinquent employee is not cooperating. However, delay in conclusion of disciplinary proceedings is not the issue. This Court is also not going into the aspect of prolonged suspension. Only issue is, whether order of continuation of suspension is permissible after the expiry of the period of extension of suspension from service. To appreciate this issue, it is necessary to consider the scope of Rule 10 (6) of the Rules.
7. Rule 10 (6) of the Rules reads as under:
An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders 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 one hundred and eighty days at a time.
8. From the reading of the said Rule, it is apparent that review of further continuation of suspension of an employee has to be undertaken before expiry of the period of suspension or extended period of suspension. Admittedly, the extended period of suspension came to an end on 06.02.2020. After 06.02.2020, petitioner cannot be treated as under suspension, as there was no further order extending the suspension. The Rule 10 (6) of the Rules does not envisage retrospective extension of suspension of an employee.
9. In Dipak Mali, this very issue was considered by the Hon’ble Supreme Court. Paragraph 11 of the said judgment reads as under:
“11. The case sought to be made out on behalf of the petitioner Union of India as to the cause of delay in reviewing the respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension.”
10. In view of the mandate of Rule 10 (6) of the Rules and the law laid down by the Hon’ble Supreme
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Court in Dipak Mali, the order under challenge extending the period of suspension retrospectively, after expiry of the period of suspension, is not sustainable and is liable to be set aside. 11. The Writ Petition is accordingly allowed. However, this order does not come in the way disciplinary authority taking steps to conclude the disciplinary proceedings expeditiously. It is also made clear that on reinstatement of the petitioner, it is open to the competent authority to transfer the petitioner to any other place. Pending Miscellaneous Petitions, if any, shall stand closed.