Pratima K. Gupta, Member (J)

1. Heard Shri B.N. Singh, learned counsel for the applicant and Shri Krishna Kant Ojha, learned counsel for respondents at length and perused records.

2. By way of the instant Original Application, the applicant has prayed for following reliefs:-

"(i). To issue a suitable order or direction to call for record and set-aside the impugned order dated 03.01.2020 and 07.12.2020 (Annexure No. 1) and put back in duty with all consequential benefits.

(ii). To issue a suitable order or direction to the respondents put back in duty and pay fill admissible allowances for the period of put off duty.

(iii). To pass such other and further order as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.

(iv). To award cost of the petition in favor of the applicant.".

3. The brief facts of the case are that the applicant was placed under suspension vide order dated 03.01.2020 invoking rule 12(1)(a) of G.D.S. (Conduct and Engagement) Rules 2011 for contemplated disciplinary proceedings. Thereafter, he was served with a charge-sheet dated 29.10.2020 (Annexure A-2). The applicant was once again placed under suspension vide order dated 07.12.2020. The applicant assails the suspension orders on the ground that review as provided under Sub Rule 2 of Rule 12 of G.D.S. (Conduct and Engagement) Rules 2011 has not been done. He further argues that there is no order in respect of review of the subsistence allowance as well, the applicant is in receipt of 25% of TRCA as subsistence allowance till date and he is under continued suspension since 03.01.2020. In support of his contention, learned counsel for the applicant has placed reliance on the decision of Hon'ble Apex Court in Civil Appeal No. 1912/2015-Ajay Kumar Chaudhary Vs. Union of India through its Secretary & Anr. reported in

4. Learned counsel for the respondents, on the other hand, opposes the claim of the applicant and submits that the case of the applicant is covered by the GDS (Conduct) Rules 2011. He further submits that the applicant has been issued a charge-sheet dated 29.10.2020 in respect of financial irregularities. Learned counsel for the respondents draws our attention to Para (ii) (page 19 of counter affidavit), which is reproduced below:-

"(ii). The amount of the compensation of ex-gratia payment may be reduced by a suitable amount not exceeding 50% of such compensation admissible during the first 90 days, if in the opinion of the said authority, the period of put off duty has been prolonged due to reasons to be recorded in writing directly attributable to the Sevak.

In accordance with the aforesaid provisions the increase in ex gratia payment to GDS can be made by 50% only when the period of prolonged put off duty is due to the reason not directly attributable to the put off duty GDS. And further there is also a provision to decrease it by 50% in case the prolongness is directly attributable to GDS. In this case applicant's prolonged put off duty is directly attributable to the applicant himself because of his misconduct as aforesaid and hence there was no scope to increase it whatsoever. However, no increase was made to the ex-gratia payment of the applicant although the prolonged put off duty is directly attributable to the applicant. However, no application was made by the applicant in this regard in this office. Instead he directly approached to the Hon'ble this Tribunal.

In view of the aforesaid submissions, the applicant's present application (OA) is premature and hence liable to be dismissed at admission stage...."

5. This matter was listed on 21.07.2022 under the heading of "Directions". However, with the consent of learned counsel for both the parties, the OA was heard finally.

6. It is not disputed that the applicant was placed under suspension on 03.01.2020. There is nothing on record to establish that his suspension was reviewed from time to time as prescribed under the rules. It is not understood as to what prompted the respondents to pass another order of suspension on 07.12.2020 while the applicant was already under suspension w.e.f. 03.01.2020. In order to place the applicant under suspension from 07.12.2020, it was incumbent upon the respondents to reinstate the applicant first and then place him under suspension again, which has not been done by the respondents. In the event that it was a continued suspension, there is a gap of 11 months between the two suspension orders and there is no order of review of suspension, on record. It is also seen that the relevant rules relied upon by the learned counsel for the respondents correspond to Rule 10 of CCS (CCA) Rules. The applicant had already been issued a chargesheet dated 29.10.2020 i.e. well before his second suspension order was passed on 07.12.2020.

7. Before proceeding further, it would be relevant to reproduce Para 14 of the judgment of Hon'ble Apex Court in the case of Ajay Kumar (Supra):-

"14. We therefore, direct the currency of a suspension order should not extend beyond three months, if within this period the memorandum of charges/charge sheet is not served on the delinquent officer/employee. ...".

8. From the above, it is clear that suspension must be reviewed within 90 days, which in the instant case has not been done either for the continuation of suspension or subsistence allowance. It is also a fact that the applicant has already been served with a charge sheet dated 29.10.2020, therefore, no

purpose will be served by keeping the applicant under further suspension. It is also a fact that almost 18 months have elapsed since the applicant had been placed under suspension without conducting a review as prescribed under the rules. Moreover, the said suspension order is in contravention of the judgment of the Hon'ble Apex Court in Ajay Kumar Chaudhary's case (supra).

9. For the forgoing reasons, the OA is allowed and the impugned orders dated 03.01.2020 and 07.12.2020 are hereby quashed. The respondents are directed to reinstate the applicant in service within a period of two weeks from the date a copy of this order is produced before them by the applicant. The applicant shall be entitled for the arrears of TRCA as per rules.

10. No order as to costs.