Shyama Dogra, Member (J)

1. In this O.A. applicant Shri M.S: Malik, submits that he is an IPS Officer of 1969 Batch of Haryana Cadre. While working as Director General of Police, he was placed under suspension vide order dated 14.6.2005 (Annexure A-3). This order was challenged by applicant in O.A. No. 578-CH-2005, which was allowed vide order dated 6.9.2005, Annexure A-4. Order of suspension of applicant was quashed by the Bench. It was held that there was no relevant material before the State Government in terms of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 (for short "Rules of 1969"), to pass the order of suspension dated 14.06.2005. However, the order of Tribunal has been challenged by the State of Haryana in a C.W.P. which stands admitted and operation of the order dated 6.9.2005 has been stayed.

2. According to applicant, during pendency of the original application, he had been served with a charge sheet dated 3.8.2005 to justify his illegal suspension order dated 14.06.2005, ignoring the fact that decision had already been taken on the floor of the house to constitute a judicial commission of enquiry on the same issue. However, charge sheet has been challenged by him through separate proceedings. In terms of Rule 3(8)(a) of Rules of 1969, an order of suspension initially passed shall remain valid for a period of 90 days and in case it is not extended within 90 days, it automatically comes to an end. It is claimed that the State Government in violation of the rule aforesaid, has reviewed the case of applicant for extension of suspension on 24.10.2005, i.e. much after the expiry of stipulated period and extended the suspension for a further period of 180 days w.e.f. 13.9.2005, Annexure A-l. Even this extended period came to an end and was extended for another 180 days vide order dated 9.3.2006, Annexure A-2.

3. Applicant claims that Shri Nirmal Singh, IPS is his arch rival. Both of them has history of litigation as they had clash of interest. Despite all this, he was made Member of the Committee to review suspension of applicant and as such the extension is illegal. He submits that Shri Nirmal Singh has been able to misguide the State Government, to act to the prejudice of the applicant. He has also been appointed as Inquiry officer to enquire into the charges levelled against the applicant. Even the subsistence allowance of the applicant has not been increased as per rules, as he is in receipt of such allowance only to the extent of 50%. At all levels, the State Government is dealing with applicant shabbily on account of malafides of officers. There is allegation against Shri G. Madhvan, IAS, also that since he was due to retire on 31.10.2005, he was influenced by the State Government to act to the prejudice of applicant and he was rewarded by appointment as Chief Information Commissioner, Haryana. Similarly, Mrs. Meenakshi Anand Chaudhary, IAS, who chaired second meeting for review of suspension of applicant was also appointed as State Information Commissioner. Both these officers were rewarded for giving opinion for extension of suspension period of applicant. Similarly, Sh. Prem Parshant, IAS, also acted to the prejudice of applicant and was made Chief Secretary, by superseding his seniors. Thus, case of applicant for continuation or revocation of suspension has not been dealt with fairly and on merits.

4. The applicant submitted appeal against the order dated 29.10.2005 and 9.3.2006, on 8.5.2006, to the respondent No. 1 (Annexure A-5). It was followed by a reminder dated 28.7.2006 (Annexure A-6). During the pendency of the O.A. vide order dated 4.9.2006, the suspension for applicant has been extended up to 31.10.2006, i.e. date of retirement of applicant.

5. It is pleaded by applicant that since the basic order of grant of extension of suspension is illegal and violation of Rule 3(8)(2) of the Rules of 1969, further orders extending the suspension of applicant cannot be sustained in the eyes of law. He claims that the impugned orders are arbitrary, discriminatory and violative of Rule ibid and Articles 14 and 16 of the Constitution.

6. He has, thus, prayed for quashing the order dated 29.10.2005, 9.3.2006, 4.9.2006, and for issuance of direction to the respondents to treat the applicant as having been automatically re-instated in terms of Rule 3(8), as there was no valid extension w.e.f. 13.9.2005, onward and to release all consequential benefits, including full pay and allowances w.e.f. 14.6.2005 itself.

7. Respondent No. 1 has filed a short reply. It is submitted that as per Rule 18(4) of Rules of 1969, the respondent No. 2 was required to forward the appeal, with its comments thereon with the relevant record to the respondent No. 1, without any avoidable delay and without waiting for any direction from the Central Government. Respondent No. 1 was not required to give any direction to respondent No. 2 to give its comments on the appeal. However, it requested the State Government to give its comments but no comments were received by them.

8. Respondents Nos. 2 and 3 have filed a joint written statement. They submit that the suspension of the applicant has been extended after due consideration by the Competent Authority. Case of applicant for review of his suspension was considered in the meeting of the Review Committee held on 24.10.2005 and since charges were serious in nature and applicant, if reinstated could be in a position to tamper with the records and influence the concerned officer/official, and as such he was not liable to be reinstated and as such his suspension was extended from time to time, till he retired. Thus, there is no illegality with the impugned orders. The applicant has not availed of the remedy available to him under the rules of filing an appeal. The impugned orders are not in contravention of Rules of 1969. The decision taken by the Review Committee, consisting of three members, is not on account of anymalafide but is based upon relevant material. A rejoinder has also been filed by the applicant.

9. We have heard learned Counsel for the parties and perused the material on the file.

10. The facts apparent on the face of record are that applicant was placed under suspension on 14.6.2005, in exercise of powers conferred by Clause (a) of Sub-rule (i) of Rule 3 of Rules of 1969. This suspension order was challenged by the applicant in O.A. No. 578-CH-2005. The Bench considered the rule position and law and observed that on the date of passing the order of suspension, the Competent Authority was under obligation to bear in mind that disciplinary proceedings are either pending or are contemplated and then the Competent Authority could place the member of service under suspension in exercise of relevant rule. The order dated 14.6.2005, does not give even an inkling as to whether any decision had been taken to initiate disciplinary proceeding against the applicant on that date and as such it was held that order is definitely not as per provisions of Rule 3 of the Rules of 1969, as the elements required for passing an order under this provision have not been shown to exist on that day. It was held that respondents were required to show the Court the grounds which existed on 14.6.2005 and validity of suspension order 14.6.2005, cannot be judged by the actions taken later and the reasons being supplied subsequent to that event, i.e. by serving of charge sheet. It was observed that one can be placed under suspension if his being in service would interfere with the disciplinary proceedings or as to whether such person can interfere with the evidence available or to be gathered or the witnesses, or as to whether it would embarrass the Government due to the nature of allegations in the charge sheet. This does not appear to be the case once the applicant had been shifted from the post of DGP to OSD (Rules). Placing reliance on Smt. S.R. Venkataraman v. Union of India and Ors. , it was held that malice in law may be assumed in the case.The Court refrained from giving any findings on the allegations of malafide, a concerned persons were not impleaded as parties by name. Thus the initial suspension of the applicant stands quashed and set aside. Though order of this Tribunal has been challenged in the Honble High Court and has been stayed also, but one thing is clear that the findings given by this Tribunal have not been reversed and are still there.

11. Be that as may we would examine the issue raised in this case independently. The fact remains that in terms of Rule 3(8)(a) of Rules of 1969, an order of suspension initially passed remains valid for a period of 90 days. The question that needs to be answered is, as to whether if such suspension is not extended within a period of 90 days, would it automatically come to an end The relevant part of the Rules of 1969, dealing with suspension is reproduced as under:

8 (a) An order of suspension made under this rule which has not been extended shall be valid for a period not exceeding ninety days and an order of suspension which has been extended shall remain valid for further period not exceeding one hundred eighty days at a time, unless revoked earlier.

(b) An order of suspension made or deemed to have been made or continued shall be reviewed by the Competent Authority on the recommendations of the concerned Review Committee.

(c) The composition and functions of the Review Committees and the procedure to be followed by them shall be as specified in the schedule annexed to these rules.

(d) The period of suspension under Sub-rule (1), may, on recommendations of the concerned Review Committee, extended for a further period not exceeding one hundred and eighty days at a time. Provided that where no order has been passed under this clause, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed.

12. A bare perusal of the rule produced above leaves no scope of doubt in our mind that an order of suspension passed under Rules of 1969, which has not been extended, shall be valid for a period not exceeding ninety days and if it is extended, it shall remain , valid for a further period of not exceeding 180 days at a time, unless it is revoked earlier. The order of suspension is to be reviewed by the Competent Authority on the recommendation of the Review Committee and the composition and functions of the Review Committee and the procedure to be followed by them is specified in the Schedule. Thus, the framers of the rules were very clear in their mind that the suspension ordered under Rules of 1969, shall be valid for a period of 90 days only and if it is to be extended, it shall not be beyond 180 days and the most relevant part is that such extension has to be made prior to expiry of period given in the suspension order of an officer. Thus, if a running suspension order is not extended before it completes its life term given in that order, such suspension shall come to an end and die its natural death.

13. This issue also came to be considered by a Division Bench of this Tribunal in two cases filed by same persons i.e. Farooq Khan, IPS v. State of J&K and Ors., O.A. No. 59-JK-2004 and O.A. No. 241-JK-2004, decided on 29.10.2004. The observations and findings recorded by the Bench being relevant are reproduced as under:

In these circumstances, one has to fall back to the provisions of Rule 3(8), which, in mandatory terms lays down that initial period of suspension shall be valid for a period not exceeding 90 days. If an order of suspension has been extended within the period of 90 days, it can remain valid for a further period not exceeding 180 days at a time, unless revoked. However, in Clause (d) it has been laid down that where no order has been passed under this clause, then the period of 90 days or the extended period, ordered validly, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed by the Review Committee, meaning thereby that if order of extension is not passed within the period of 90 days, the first order of suspension comes to an end automatically, standing revoked under the provisions of the rules itself. We are also reminded of Govt, of India, Ministry of Personnel Public Grievances & Pensions (Deptt. of Personnel & Training) instructions dated 7.1.2004 on the subject of suspension of Govt. Servants. By making reference to Rule 10 of the CCS (CCA) Rules, 1965, which are other than AIS (D&A) Rules, as applicable to other Central Govt. employees, the principle as indicated in the form of Rule 3 of AIR 1969 Rules has been recognized. It has been reiterated in this O.M. that period of suspension, or deemed suspension shall not be valid after 90 days unless it is extended after a review for further period before the expiry of 90 days. Similar is the provision regarding extension of suspension which shall not be or a period exceeding 180 days at the time.

14. Taking note of the provisions of Rules of 1969, and finding that the order of suspension dated 29.7.2003 in case of Shri Farooq Khan, IPS, having not been reviewed and extended by an order to be passed before expiry of the initial period of 90 days, his suspension was treated as revoked on expiry of 90 days w.e.f. 29.7.2003 i.e. on 25.10.2003 and it was held that any order of continued suspension of applicant after such date, has to be treated as illegal and was quashed. Thus, the issue is no longer res-integra and stands settled that unless a suspension order is extended for further period before its expiry, it automatically comes to an end.

15. In this case, it is not in dispute that initially the applicant was placed under suspension on 116.2005, which was valid for 90 days i.e. up to 12th September, 2005 whereas the said suspension was reviewed by the "Review Committee" in its meeting held on 24.10.2005 and the suspension was extended for 180 days w.e.f. 13.9.2005, vide order dated 29.10.2005. Annexure A-l. Thus, considering the rules of 1969 and law discussed above, it is apparent that the suspension order of the applicant had come to an end on 12.9.2005, as no review had taken place prior to 12.9.2005 and as such it could not be extended retrospectively, which is the mandate of Rules of 1969. We would, however, not like to record any finding with regard to allegations of malafide levelled by applicant against various officers, as none of them is a party before us in this O.A.

16. Respondents Nos. 2 and 3 have taken an Objection that this O.A. is not maintainable as applicant has not availed of remedy of appeal, against the impugned order. On the other hand it has come on record that applicant had filed an appeal dated 8.5.2006, Annexure A-5, which was followed by reminder dated 28.7.2006, to the respondent No. l. It is specific stand of respondent No. 1 that it was expected of the respondents 2 and 3 to have sent the appeal of the applicant with comments. However, despite a letter written by the respondent No. 1, such comments were not forwarded by respondent Nos. 2 and 3. Thus, respondent No. 1 was unable to take a decision on the appeal preferred by the applicant. Thus, the respondents Nos. 2 and 3 on the one hand plead that applicant has not exhausted remedy of appeal and on the other hand when the applicant filed an appeal, they did not take steps, as expected of them under the rules, to send the comments to the Competent Authority and as such they cannot be allowed to say that O.A. is not maintainable. Objection of the respondents on this aspect is, therefore, rejected.

17. In view of the above discussion, this O.A. is allowed. The impugned orders, Annexure A-1 dated 29.10.2005, Annexure A-2, dated 9.3.2006, Annexure A-2/A dated 4.9.2006 are quashed and set aside. It is held that applicant is deemed to have been reinstated into service w.e.f. 13.9.2005 and as such is entitled to all the consequential benefits, as if he remained in service including full pay and allowances, with arrears thereon and revised pensionary benefits.

18. Respondents are directed to pass necessary orders granting the relief to the applicant, within a period of three months from the date of receipt of copy of this order. There shall, however, be no order as to costs.