MURAHARI SRI RAMAN, J.—

THE CHALLENGE:

1. Assailing an Order dated 19.10.2023 passed by the opposite party No.1-Principal Secretary to the Government of Odisha in Works Department (Annexure- 11) rejecting the representation dated 09.01.2023 (Annexure-14) seeking to revoke Order dated 14.12.2022 (Annexure-9) placing the petitioner under suspension while initiation of the Disciplinary Proceeding under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 was under contemplation, the petitioner has come up before this Court by way of filing the instant writ application craving to exercise extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

1.1. In addition thereto, the petitioner made prayer to quash the Order dated 07.12.2023 of the opposite party No.1 (Annexure-12) appointing Inquiring Officer under Rule 17 read with Rule 15(4) of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 for the purpose of inquiring into the charges levelled against the petitioner-delinquent.

1.2. The prayers made by the writ petitioner are as follows:

“Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to:

(i) quash the Orders dated 07.12.2023 and 19.10.2023 under Annexures-12 and 11 respectively by concurrently holding the same as bad, illegal and not sustainable in the eye of law and thereby direct reinstatement of the petitioner immediately for the interest of justice;

(ii) pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice;

And for this act of kindness, the Petitioner shall as in duty bound, ever pray.

THE FACTS:

2. Factual details as unfurled by the writ petitioner reveals that while working as Administrative Officer, one Sri Tapan Kumar Patra having approached the Promotion Adalat for regularisation of his officiating promotion, the Additional Chief Secretary issued following direction on 28.02.2020:

“There are 8 numbers of sanctioned post in the Post of Architectural Draughtsman. As per Cadre Rules 50% will be filled up by promotion from among the Assistant Architectural Draughtsman (feeder grade) and the rest 50% will be by direct recruitment. Now there are 4 numbers of employees are holding the post of Architectural Draughtsman, who have been promoted from among the Assistant Architectural Draughtsman. The vacant 4 posts are to be filled up by direct recruitment as per Cadre Rules after obtaining approval of Empowered Committee. So the applicant’s representation merits no consideration.

The Department should take a quick decision on the regularisation of the officiating position of Sri Patra.”

2.1. Accordingly the petitioner has stated to have placed files of Sri Tapan Kumar Patra— provisionally appointed as Tracer on purely temporary and on officiating basis vide Office Order No.889, dated 23.02.1989 and promoted as Assistant Architectural Draughtsman on officiating basis vide Office Order No.540, dated 08.02.1990— before the Chief Architect, who accorded deemed promotion in the post of Assistant Architectural Draughtsman on regular basis by virtue of Office Order No.576—EAPF-18/2022, dated 13.04.2022. However, realising mistake committed, the Chief Architect cancelled said Office Order dated 13.04.2022 vide Office Order No.640— EAPF-18/2022, dated 29.04.2022.

2.2. A show cause notice bearing No.8200—WORKS-CON- CASE5-0051-2022/W, dated 22.06.2022 was issued by the Principal Secretary to Government of Odisha in Works Department, the opposite party No.1, to four employees including the petitioner citing that:

“*** Sri Patra filed another case before the Hon’ble High Court of Orissa, Cuttack bearing W.P.(C) No.34598 of 2021 challenging the Works Department Order No.11399, dated 13.08.2021, which is pending before the Hon’ble High Court, Orissa, Cuttack. While the matter is sub judice as such the Office Order by the Chief Architect, Odisha and his officials dated 13.04.2022 contradict the Order No.11399, dated 13.08.2021 of this Department, seems completely biased and misinterpreted with an intention to favour Sri Tapan Kumar Patra (the petitioner of W.P.(C) No.34598 of 2021) by undermining the very rules and regulations of the Government, which has future repercussions to the State Exchequer and tantamount to (a) gross misconduct; (b) dereliction of duty; (c) causing wrongful pecuniary loss to Government; (d) not maintaining absolute integrity; (e) disobedience of Government Orders which amounts to violation of Odisha Government Servants’ Conduct Rules, 1959.

They are, therefore, instructed to explain the reason as to why suitable action as deemed proper shall not be initiated against them for such lapses.

***”

2.3. In terms of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (“OCS CCA Rules”, for brevity), object of which is deterrent from wrong doing for Government servant, when the Disciplinary Proceeding under Rule 15 ibid.—“Procedure for imposing Major Penalties”— was under contemplation, the opposite party No.1 placed the petitioner under suspension vide Order No.18076— WORKS-CON- CASES-0051-2022, dated 14.12.2022 (Annexure-9).

2.4. Filing petition, being W.P.(C) No.30112 of 2023 on 12.09.2023 before this Court, the petitioner complained that “neither any charge has been framed nor the Order of suspension revoked”. This Court disposed of the said case on 26.09.2023 with the following Order:

“Considering the submissions, the writ application is disposed of directing the Principal Secretary, Works Department (opposite party No.1) to consider and dispose of the representation submitted by the petitioner on 09.1.2023 in accordance with law positively within a period of ten days under intimation to the petitioner.”

2.5. However, in the meanwhile, a Memorandum bearing 15441—CON-CASES-0051-2022/W., dated 14.09.2023 has been issued to the petitioner by the opposite party No.1 proposing to hold inquiry under Rule 15 of the OCS CCA Rules on the Article of Charge that the petitioner “has shown undue favour to Sri Tapan Kumar Patra, by proposing to regularise his officiating service period in the post of Tracer and Assistant Architectural Draughtsman and deliberately disobeyed the Government Order as well as misinterpreted the Order of the Promotion Adalat”.

2.6. In compliance of direction contained in the Order dated 26.09.2023 passed in W.P.(C) No.30112 of 2023, the opposite party No.1 disposed of the representation with the following observation:

“***

And whereas, the petitioner the petitioner was served a Show Cause Notice No.8200/W, dated 22.06.2022 with a direction to explain as to why suitable action as deemed proper shall not be initiated against him. In response, he submitted his reply on dated 05.07.2022;

And whereas, the reply to the Show Cause Notice, as above, was considered with reference to the allegations levelled against him & the relevant records available, Since the reply was not satisfactory, it was rejected and decided to place Shri Matia under suspension;

And whereas, accordingly Shri Matia, the petitioner was placed under suspension vide this Department Order No. 18076/W., dated 14.12.2022;

And whereas, the Suspension Case of the Petitioner was placed before the concerned Suspension Review Committee in its meeting held on dated 01.07.2023. Taking into account the gravity of the case, the Committee didn't recommend to re-instate the petitioner into Govt. Service and accordingly the Govt. decided not to re-instate the petitioner into Govt. Service for the time being;

And whereas, a Disciplinary Proceedings has been instituted against him under Rule 15 of the OCS(CC&A) Rules, 1962 vide Memorandum No. 15441/W., dated 14.09.2023;

And whereas, the Written Statement of Defence, as called for in the Memorandum dated 14.09.2023 is yet to be received from the petitioner. The case of suspension of the petitioner shall be placed before the next periodical Suspension Review Committee for a decision;

Now therefore, in obedience to the order of Hon'ble High Court, as above, the representation of the petitioner dated 09.01.2023 was examined with reference to the above facts, materials & records available & the decision of the Govt. in the matter of reinstatement into Govt. Service and was rejected.

Communicate to all concerned.”

2.7. The opposite party No.1 issued Order dated 07.12.2023 appointing the Commissioner for Department Inquiry (CDI), General Administration and Public Grievance Department, Odisha, Bhubaneswar as the Inquiring Officer under Rule 17 read with Rule 15(4) of the OCS CCA Rules.

2.8. Being aggrieved by order of rejection of representation of the petitioner for revocation of prolonged suspension by the opposite party No.1 on the ground that suspension should be of short duration, the afore-noted writ petition has been preferred.

Hearing:

3. Ms. Saswati Mohapatra, learned Advocate for the petitioner insisted for setting aside the order of rejection to revoke order of suspension, and the pleadings being completed, on consent of Sri Tarun Patnaik, learned Additional Standing Counsel, the matter is taken up for final hearing.

3.1. This matter is heard on 26.07.2024 and kept reserved for Judgment.

Submissions of the counsel for respective parties:

4. It is submitted by Ms. Saswati Mohapatra, learned Advocate that the order of suspension cannot be kept for a long period. Since the Works Department delayed in commencing the Disciplinary Proceeding and there is feeble scope for its culmination in near future, the Order of suspension dated 14.12.2022 is required to be revoked. Notwithstanding period stipulated in the Guidelines dated 06.03.2010 issued by the Government of Odisha in General Administration Department to the effect that Disciplinary Proceeding is required to be initiated within 30 days from the date of suspension, it is only on 07.12.2023 that the Works Department has appointed Inquiring Officer even while the Memorandum was issued on 14.09.2023. Since the action of the opposite party No.1 is not in consonance thereof, she insisted for indulgence by issue of direction to the opposite party No.1 to revoke the suspension.

4.1. Ms. Saswati Mohapatra, learned Advocate amplified her argument further by urging that the appointing authority of the petitioner being the opposite party No.2, the opposite party No.1 has no authority to place the petitioner under suspension.

4.2. She would further submit that mere placing the file concerning Sri Tapan Kumar Patra on oral instruction before the competent authority-opposite party No.2 cannot be attributed as grave misconduct. It is the competent authority, who is required to take decision whether to regularise the promotion. Using the expression “gravity of the case” without ascribing reason to refuse to revoke order of suspension would not tantamount to fair and even handed exercise of power. There being no allegation of embezzlement of money or serious dereliction of duty, the Order of suspension which was passed on 14.12.2022 could not have continued till date particularly when the Disciplinary Proceeding was not initiated within the period stipulated in the Guidelines dated 06.03.2010.

4.3. She would also submit that the petitioner has placed the concerned file before the opposite party No.2, who is the competent authority to take decision on regularising officiating service in the posts of Tracer and Assistant Architectural Draughtsman of Shri Tapan Kumar Patra in obedience to his oral instructions pursuant to the direction of the Promotion Adalat. Had he not placed the file before the opposite party No.2, he would have disobeyed the direction of the Additional Chief Secretary in Promotion Adalat.

4.4. It is contended that as the Chief Architect got retired in the meantime and thereby he is left scot free as no Disciplinary Proceeding could be initiated against him.

4.5. Therefore, it is strenuously argued that continuance of suspension of the petitioner would not enure to the benefit of none. This apart, the terms of Guidelines dated 06.03.2010 of the General Administration Department though are requires to be followed scrupulously, no Suspension Review Committee is held monthly.

5. Sri Tarun Patnaik, learned Additional Standing Counsel having forcefully argued would submit that the petitioner misled the Chief Architect by submitting the files relating to Sri Tapan Kumar Patra, whose case for promotion was sub judice before this Court in W.P.(C) No.34598 of 2021 challenging the Order dated 13.08.2021 of the Works Department, with positive note to grant regular promotion in the rank of Architectural Draughtsman.

5.1. He further went on to submit that since the Departmental Proceeding has been pending and now that the Inquiring Officer in terms of Rule 17 read with Rule 15(4) of the OCS CCA Rules being appointed, reinstating the petitioner in service by revoking Order of suspension would affect the course of such proceeding.

5.2. Mere non-institution of the Disciplinary Proceeding within 30 days from the date of suspension as per Guidelines dated 06.03.2010 would vitiate neither the Disciplinary Proceeding nor the Order of suspension, more so when the petitioner has not submitted his written statement of defence.

5.3. Refuting the allegation with regard to competence of the opposite party No.1 to suspend the petitioner, the learned Additional Standing Counsel vehemently submitted that though the Head of Office in respect of the petitioner is the opposite party No.2, the Administrative Department is opposite party No.1 and the Order of suspension being issued by the latter, no illegality can be attached to such action so as to exercise power of judicial review.

Perspective of suspension:

6. Before delving into examine whether continuance of suspension of the petitioner is justified even after initiation of Disciplinary Proceeding by issuing Memorandum along with Charges, it may be convenient to understand the purport of “suspension”.

6.1. The dictionary meaning of the word “suspend” is “to debar; usually, for a time, from any privilege, from the execution of an office or from the enjoyment of an income”. It is temporary deprivation of office, or privilege. By reason of suspension the person suspended does not lose his office nor does he suffer any degradation. He ceases to exercise the powers and to discharge the duties of the office for the time being. His rank remains the same and his pay does not suffer any deduction. He cannot draw his salary during the period of suspension. His powers, functions and privileges remain in abeyance.

6.2. In Khem Chand Vrs. Union of India, (1963) Supp.1 SCR 229 it has been succinctly stated that,

“An order of suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. *** There is no basis for thinking however that because of the order of suspension he ceases to be a member of the service.”

6.3. In Mohammad Ghouse Vrs. State of Andhra, (1957) 1 SCR 414 it has been observed that an order of suspension pending final orders is neither one of dismissal nor of removal of service within Article 311 of the Constitution of India.

6.4. It has been observed in Nahid Jahan Vrs. State of M.P., 2017 SCC OnLine MP 2173 = ILR 2017 MP 2947 as follows:

“13. The Supreme Court emphasized the need of applying mind before placing an employee under suspension. Author M.S. Nila in the Book “Law of Suspension” (Eastern Book Co., Lucknow) expressed the view that “suspension on technical irregularities and lapses is unreasonable” (Page 20). Another Author Shri S.K.P. Shriniwas in “Law of Suspension and Reinstatement” (Orient Publishing Co.) opined that authority passing suspension order must not be afflicted with suspension syndrome. An order of suspension must not be passed whimsically, capriciously, unduly, fancifully and unreasonably. Contrary to these, such an order must be a reasoned one.

14. Wording of suspension order clearly shows that the allegations against the petitioner are relating to a clerical error of including the name of a dead person in the portal. For this alleged “misconduct”, the respondents placed her under suspension. It is profitable to refer to the judgment of Supreme Court in this regard. In (1979) 2 SCC 286 (Union of India Vrs. J. Ahmed), Desai J. held that

‘it is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability is very high.’

***”

6.5. Gamut of “suspension” has been discussed by the Uttarakhand High Court in the case of Naresh Kumar Vrs. State of Uttarakhand, Special Appeal No.576 of 2019, vide Judgment dated 18.06.2019 in the following lines:

“10. Suspension means the action of debarring, for the time being, from a function or privilege or temporary deprivation of working in the office. [Union of India Vrs. Ashok Kumar Aggarwal, (2013) 16 SCC 147]. Suspension, according to the Oxford Dictionary, means the action of suspending, or the condition of being suspended; the action of debarring or state of being debarred, especially for a time, from a function or privilege; temporary deprivation of one’s office or position. One of the meaning of the word “suspension”, as given in the Chambers 20th dictionary, is: to defer, to debar from any privilege, office, emolument etc., for a time. Suspension is, ordinarily, a temporary act. [Dr. G. Thimma Reddy Vrs. State of Andhra, AIR 1958 AP 35; Govt. of India, Ministry of Home Affairs Vrs. Tarak Nath Ghosh, (1971) 1 SCC 734; Halsbury’s Laws of England, Third Edn., Vol. 25, Article 9895; Buddana Venkata Murali Krishna Vrs. State of A.P., 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

11. A public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him, or the statutory provisions governing his service, provide for such suspension. He may merely be forbidden from discharging his duties during the pendency of an enquiry against him, which act is also called suspension. The right to suspend as a measure of punishment, as well as the right to suspend the contract of service during the pendency of an enquiry, are both regulated by the contract of employment or the statutory provisions regulating the conditions of service. But the last category of suspension is the right of the master to forbid his servant from doing the work, which he had to do, under the terms of the contract of service or the provisions governing his conditions of service, at the same time keeping in force the masters’ obligations under the contract. In other words the master may ask his servant to refrain from rendering his service, but he must fulfil his part of the contract. [V.P. Gidroniya Vrs. State of M.P., (1970) 1 SCC 362; B.R. Patel Vrs. State of Maharashtra, AIR 1968 SC 800 and R.P. Kapur Vrs. Union of India, AIR 1964 SC 787]. So far as suspension as a punishment is concerned, it is a disciplinary matter. [R.P. Kapur, AIR 1964 SC 787 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

12. Suspension, in the present case, is not a substantive punishment, and is an interim order pending enquiry/criminal proceedings. [Sasa Musa Sugar Works (P) Ltd. Vrs. Shobrati Khan, AIR 1959 SC 923]. Suspension of this kind is not a punishment, but only forbids or disables the petitioner from discharging the duties of his office or the post held by him. In other words it is to restrain him from availing further opportunities of perpetrating the alleged misconduct, or to remove the impression among members of the service that dereliction of duty would pay and the offending employee can get away pending inquiry without any impediment, or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses, or affording the delinquent the opportunity in office to impede the progress of the investigation or inquiry etc. [State of Orissa vs. Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

13. An order of interim suspension can be passed against the employee while an inquiry/investigation is pending against him. Suspending an officer, and thereby disabling him from performing the duties of his office on the basis that the contract is subsisting, is always an implied term in every contract of service. When an officer is suspended, in this sense, it means that the Government merely issues a direction to the officer that, so long as the contract is subsisting and till the time the officer is legally 6 dismissed, he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. [Balvantrai Ratilal Patel Vrs. State of Maharashtra, AIR 1968 SC 800; T. Cajee Vrs. U. Jormanik Siem, AIR 1961 SC 276; R.P. Kapur, AIR 1964 SC 787; Bimal Kumar Mohanty, (1994) 4 SCC 126; V.P. Gidroniya, (1970) 1 SCC 362; Jammu University Vrs. D.K. Rampal, AIR 1977 SC 1146 and Buddana Venkata Murali Krishna, 2016(3) ALT 727]. Where the power to suspend is provided for either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service, and the master is not bound to pay his full salary and allowances. [Balvantrai Ratilal Patel, AIR 1968 SC 800; Hanley Vrs. Pease & Partners, Ltd., (1915) 1 KB 698; Wallwork Vrs. Fielding and Boston Deep Sea Fishing and Ice Co. Vrs. Ansell, (1922) 2 KB 66 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183).

14. If the order of suspension is a valid order, it has suspended the contract of service and the government servant is entitled to receive only such subsistence allowance as might be payable under the rules and regulations governing his terms and conditions of service. (D.K. Rampal, AIR 1977 SC 1146). As an employer can suspend an employee pending an inquiry into his conduct, the only question that can arise, on such suspension, will relate to the payment during the period of such suspension. If there is a provision in the Rules providing for the scale of payment during suspension, the payment would be in accordance therewith. On general principles, therefore, the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental inquiry against him. [R.P. Kapur, AIR 1964 SC 787; V.P. Gidroniya, (1970) 1 SCC 362; U. Jormanik Siem, AIR 1961 SC 276; Balvantrai Ratilal Patel, AIR 1968 SC 800; Tarak Nath Ghosh, (1971) 1 SCC 734; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

15. An order of suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority should also keep in mind the public interest of the impact of the delinquents’ continuance in office while facing departmental inquiry or trial of a criminal charge. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126; R.P. Kapur, AIR 1964 SC 787; Balvantrai Ratilal Patel, AIR 1968 SC 800 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. The importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons, cannot be over emphasised. While such action may be against the immediate interest of the government servant, yet it is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant, pending an enquiry, is a necessary part of the procedure for taking disciplinary action against him. [Khem Chand Vrs. Union of India, AIR 1963 SC 687].

16. Ordinarily, a Government servant is placed under suspension to restrain him from availing the further opportunity to perpetrate the alleged misconduct or to scuttle the inquiry or investigation or to win over the witnesses or to impede the progress of the investigation or inquiry, etc. It would also remove the impression, among members of the service, that dereliction of duty would pay. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. When serious allegations of misconduct are imputed against a member of a service, normally it would not be desirable to allow him to continue in the post where he is functioning. The Government may rightly take the view that an officer, against whom serious imputations are made, should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings. [Tarak Nath Ghosh, (1971) 1 SCC 734]. The purpose of suspension is generally to facilitate a departmental enquiry and to ensure that, while such enquiry is going on, it may relate to serious lapses on the part of a public servant, he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry. [R.P. Kapur, AIR 1964 SC 787 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

17. The effect on public interest, due to the employees’ continuation in office, is also a relevant and determining factor. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings, so that the delinquent may not gain custody or control of papers or take advantage of his position. At this stage, it is not desirable for the court to find out as to which version is true when there are claims and counter claims on factual issues. [Ashok Kumar Aggarwal, (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183]. No conclusion can be arrived at without examining the entire record. It is always advisable to allow disciplinary proceedings to continue unhindered. If he is exonerated, he would then be entitled to all the benefits from the date of the order of suspension. [U.P. Rajya Krishi Utpadan Mandi Parishad Vrs. Sanjiv Rajan, 1993 Supp (3) SCC 483; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. The usual ground for suspension, pending a criminal proceeding, is that the charge is connected with his position as a government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. [R.P. Kapur, AIR 1964 SC 787 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

18. The power of suspension should, however, not be exercised in an arbitrary manner and without any reasonable ground or as a vindictive misuse of power. A suspension order cannot be actuated by mala fides, arbitrariness, or be passed for an ulterior purpose. [Ashok Kumar Aggarwal, (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. An order of suspension should not be passed in a perfunctory or in a routine and casual manner, but with due care and caution after taking all factors into account. [Ashok Kumar Aggarwal, (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. It should be made after consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The authority should also take into account all available material as to whether, in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. [Ashok Kumar Aggarwal, (2013) 16 SCC 147 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. Ordinarily, an order of suspension is passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated, and the nature of the evidence placed before it, on application of mind by the 9 disciplinary authority. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727].

19. Whether the employee should or should not continue in office during the period of inquiry is a matter to be assessed by the concerned authority. Ordinarily, the Court should not interfere with orders of suspension unless they are passed mala fide, and without there being even prima facie evidence on record connecting the employee with the misconduct in question. [Sanjiv Rajan Vrs. Director, Rajya Krishi Utpadan Mandi Parishad, 1993 Supp (3) SCC 483]. The court cannot act as if it is an appellate forum de hors the power of judicial review. [Ashok Kumar Aggarwal, (2013) 16 SCC 147]. The Court or the Tribunal must consider each case on its own facts, and no general law or formula of universal application can be laid down in this regard. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. Each case must be considered depending on the nature of the allegations, gravity of the situation, and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. The authority should also keep in mind the public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial on a criminal charge. [Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

20. Bearing these principles in mind, let us now examine the submission of Sri Tapan Singh, learned counsel for the appellant, that, in view of the law declared by the Supreme Court, in Ajay Kumar Choudhary, (2015) 7 SCC 291, and since neither a charge memo was issued to the petitioner nor a charge sheet filed in the criminal case within 90 days of his being placed under suspension, the order of suspension stands automatically revoked.

21. Where there is power to suspend under a statute, or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant. [Balvantrai Ratilal Patel, AIR 1968 SC 800; Bimal Kumar Mohanty, (1994) 4 SCC 126 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727]. The Supreme Court, in Ajay Kumar Choudhary, (2015) 7 SCC 291, drew a distinction between cases where a charge sheet is filed within 90 days of the order of suspension, and cases where it is not. The latter has been held to result in putting to an end the order of suspension, while the former has been held to require a reasoned order, extending the period of suspension, to be passed by the Government. However, in Tarak Nath Ghosh, (1971) 1 SCC 734, the Supreme Court held that, in principle, there is no difference between the position of an officer against whom definite charges have been framed to which he is required to put in his written statement and a situation where, on receipt of allegations of grave misconduct against him, the Government is of opinion that it would not be proper to allow the officer concerned to function in the ordinary way. Again, in Ashok Kumar Aggarwal, (2013) 16 SCC 147, the Supreme Court held that the delinquent cannot be considered to be any better off, after the charge-sheet has been filed against him in the Court on conclusion of the investigation, than his position during the investigation of the case itself.

22. After referring to the earlier Judgments in O.P. Gupta Vrs. Union of India, (1987) 4 SCC 328, where it was held that suspension of an employee was injurious to his interests and must not be continued for an unreasonably long period and, therefore, an order of suspension should not be lightly passed; to K. Sukhendar Reddy Vrs. State of A.P., (1999) 6 SCC 257, which castigated selective suspension perpetuated indefinitely in circumstances where other persons involved had not been subjected to any scrutiny; and State of A.P. Vrs. N. Radhakishan, (1998) 4 SCC 154, wherein it was observed that it would be fair to make the assumption of prejudice if there was unexplained delay in the conclusion of proceedings; the Supreme Court, in Ajay Kumar Choudhary, (2015) 7 SCC 291, observed:

‘*** Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh Vrs. State of Bihar, (1986) 4 SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. ***’

23. As reliance was placed by the Supreme Court, in Ajay Kumar Choudhary, (2015) 7 SCC 291, on the earlier decision in O.P. Gupta, (1987) 4 SCC 328, it is necessary to take note of the law declared therein. In O.P. Gupta, (1987) 4 SCC 328, the Supreme Court held that there is no presumption that the Government always acts in a manner which is just and fair; there was no occasion to protract the departmental inquiry for a period of 20 years, and keeping the appellant under suspension for a period of nearly 11 years, unless it was actuated with the mala fide intention of subjecting him to harassment; while the charge framed against the appellant was serious enough to merit his dismissal from service, the departmental authorities were not in a position to substantiate the charge; but that was no reason for keeping the departmental proceedings alive for a period of 20 years, and not to have revoked the order of suspension for over 11 years; an order of suspension of a government servant does not put an end to his service under the Government; and he continues to be a member of the service in spite of the order of suspension.

24. Unlike in O.P. Gupta (1987) 4 SCC 328, where the Government servant was kept under suspension for more than eleven years, in the case on hand the petitioner was placed under suspension around a year ago. Long periods of suspension do not make the order of suspension invalid. [Ashok Kumar Aggarwal, (2013) 16 SCC 147]. Ordinarily, when serious imputations are made against the conduct of an officer, the disciplinary authority cannot immediately draw up the charges. Considerable time may elapse between receipt of imputations against an officer, and a definite conclusion by a superior authority, that the circumstances are such that definite charges can be levelled against the officer. Whether it is necessary or desirable to place the officer under suspension, even before definite charges have been framed, would depend upon the circumstances of the case and the view which is taken by the Government concerned. [Tarak Nath Ghosh, (1971) 1 SCC 734]. It is possible that, in some cases, the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an explanation from the authorities in the matter and, if it is found unsatisfactory, to direct them to complete the inquiry within a stipulated period and to increase the 13 suspension allowance adequately. The Court has to examine each case on its own facts and decide whether the delay in serving the charge-sheet and completing the inquiry is justified or not. [Sanjiv Rajan, 1993 Supp (3) SCC 483; Buddana Venkata Murali Krishna, 2016 (3) ALT 727].

25. Even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review the order of suspension. While exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if he is satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. In case the Court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have, and it results in prolongation of suffering of the delinquent employee, the Court may issue directions. The Court may, in case the authority fails to furnish proper explanation for the delay in conclusion of the enquiry, direct it to complete the enquiry within a stipulated period. However mere delay, in conclusion of the enquiry or the trial, cannot be a ground for quashing the suspension order, if the charges are grave in nature. But whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority and, ordinarily, the Court should not interfere with the order of suspension unless they are passed mala fide, and without there being even prima facie evidence on record connecting the employee with the misconduct in question. [Ashok Kumar Aggarwal, (2013) 16 SCC 147; Sanjiv Rajan, 1993 Supp (3) SCC 483; Secretary to Government, Prohibition and Excise Deptt. Vrs. L. Srinivasan, (1996) 3 SCC 157; Allahabad Bank Vrs. Deepak Kumar Bhola, (1997) 4 SCC 1 = (1997) 2 SCR 1055 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727].

26. On the question of the binding effect of the law declared by the two judge bench of the Supreme Court in Ajay Kumar Choudhary, (2015) 7 SCC 291, it must be borne in mind that the doctrine of binding precedents has the merit of promoting certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of the transactions forming part of his daily affairs. [Central Board of Dawoodi Bohra Community Vrs. State of Maharashtra, (2005) 2 SCC 673; Union of India Vrs. Raghubir Singh (dead) by L.Rs, (1989) 2 SCC 754]. The law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co- equal strength. A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of a larger quorum. [Central Board of Dawoodi Bohra Community, (2005) 2 SCC 673].

27. In Khem Chand, AIR 1963 SC 687, the Constitution Bench of the Supreme Court held that suspension of a Government servant pending enquiry is a necessary part of the procedure for taking disciplinary action against him; and such action is necessary in the interest of the general public for serving whose interests the Government machinery exists and functions. In V.P. Gidroniya, (1970) 1 SCC 362, the Constitution bench of the Supreme Court held that suspending an employee, from performing the duties of his office, is an implied term in every contract of employment; when an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a particular period; in other words, the employer is regarded as issuing an order to the employee, which, because the contract is subsisting, the employee must obey.

28. In R.P. Kapur, AIR 1964 SC 787, the Constitution Bench of the Supreme Court held that the public servant may be suspended pending investigation, enquiry or trial relating a criminal charge; if the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted; even in case of acquittal, disciplinary proceedings may follow where the acquittal is other than honourable; the usual practice is that where a public servant is being tried on a criminal charge, the Government postpones holding a departmental enquiry, and awaits the result of the criminal trial; and therefore suspension, during investigation, enquiry or trial relating to a criminal charge, is intimately related to disciplinary matters.

29. While taking note of the fact that disciplinary proceedings may commence after completion of the criminal proceedings, the Constitution Bench, in R.P. Kapur, AIR 1964 SC 787, was of the view that suspension during investigation, enquiry or trial relating a criminal charge is intimately related to disciplinary matters. The fact that an order of suspension could continue during the trial of a criminal charge, and even thereafter till completion of disciplinary proceedings, if any, initiated against the Government servant was recognised in R.P. Kapur, AIR 1964 SC 787 by the Constitution bench of the Supreme Court. None of the aforesaid Constitution bench judgments of the Supreme Court in Khem Chand, AIR 1963 SC 687; V.P. Gidroniya, (1970) 1 SCC 362 and R.P. Kapur, AIR 1964 SC 787 were noticed in the latter two-bench judgment of the Supreme Court in Ajay Kumar Choudhary, (2015) 7 SCC 291.

30. All subsequent decisions by benches comprised of lesser number of Judges should be read in the light of the earlier Constitution Bench decisions. [N. Meera Rani Vrs. Govt. of T.N., AIR 1989 SC 2027]. In cases where a High Court finds any conflict between the views expressed by larger and smaller benches of the Supreme Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court, in such a case, is to try to find out and follow the opinion expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law, is followed by the Supreme Court itself. [State of U.P. Vrs. Ram Chandra Trivedi, AIR 1976 SC 2547; Union of India Vrs. K.S. Subramanian, AIR 1976 SC 2433]. The legal position is that, in the hierarchical set up of Courts, the High Court is bound by the decisions of the Supreme Court. However, when a smaller bench of the Supreme Court lays down a proposition contrary to and without noticing the ratio decidendi of the earlier larger Benches, such a decision will not become the law declared by the Supreme Court so as to have a binding effect under Article 141 of the Constitution on all the Courts within the country.

[Sakinala Harinath Vrs. State of A.P., 1993 (3) ALT 471]. Judicial discipline requires that the opinion expressed by larger benches of the Supreme Court, in preference to those expressed by smaller benches of the Supreme Court, should be followed. [K.S. Subramanian, AIR 1976 SC 2433; O. Ramachandra Reddi Vrs. The Director, DRDL, Hyderabad, 1993 (1) ALT 221 and Buddana Venkata Murali Krishna, 2016 (3) ALT 727 = 2015 SCC OnLine Hyd 183].

31. In Ashok Kumar Aggarwal, (2013) 16 SCC 147, the Supreme Court held:

“*** The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. Vrs. Shardul Singh, 1993 Supp (3) SCC 483, P.V. Srinivasa Sastry Vrs. Comptroller & Auditor General, (2001) 3 SCC 414, ESI Vrs. T. Abdul Razak (1983) 1 SCR 828 = (1983) 1 SCC 124, Kusheshwar Dubey Vrs. Bharat Coking Coal Ltd., (1966) 3 SCR 682 = AIR 1966 SC 1942, Delhi Cloth & General Mills Ltd. Vrs. Kushal Bhan AIR 1955 SC 549, U.P. Rajya Krishi Utpadan Mandi Parishad Vrs. Sanjiv Rajan, (1975) 3 SCC 503 = AIR 1975 SC 984, State of Rajasthan Vrs. B.K. Meena, (1968) 1 SCR 111 = AIR 1967 SC 1910, Prohibition and Excise Deptt. Vrs. L. Srinivasan, AIR 1976 SC 2547 and Allahabad Bank Vrs. Deepak Kumar Bhola, Deepak Kumar Bhola, (1997) 4 SCC 1 = (1997) 2 SCR 1055, wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial cannot be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.”

32. In Sanjiv Rajan, 1993 Supp (3) SCC 483, the Supreme Court observed:

‘*** In matters of this kind, it is advisable that the concerned employees are kept out of mischiefs range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension. Whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the authority concerned and ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. In the present case, before the preliminary report was received, the Director was impressed by the first respondent employees representation. However after the report, it was noticed that the employee could not be innocent. Since this is the conclusion arrived at by the management on the basis of the material in their possession, no conclusions to the contrary could be drawn by the Court at the interlocutory stage and without going through the entire evidence on record. In the circumstances, there was no justification for the High Court to revoke the order of suspension. In L. Srinivasan, (1996) 3 SCC 157, the respondent, while working as Assistant Section Officer, Home, Prohibition and Excise Department, was placed under suspension. Departmental inquiry was in process. Charge-sheet was laid for prosecution and the trial of the case was pending. The Tamil Nadu Administrative Tribunal set aside the departmental enquiry and quashed the suspension and the charge-sheet on the ground of delay in initiation of disciplinary proceedings. It is in this context that the Supreme Court held:

*** In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied.’

33. In Deepak Kumar Bhola, Deepak Kumar Bhola, (1997) 4 SCC 1 = (1997) 2 SCR 1055, the Supreme Court observed:

‘*** We are unable to agree with the contention of the learned counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the CBI which resulted in the filing of a charge-sheet, alleging various offences having been committed by the respondent, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for allowing the respondent to come back to duty on a sensitive post in the Bank, unless he is exonerated of the charge. ***’

34. The attention of the Supreme Court, in Ajay Kumar Choudhary (2015) 7 SCC 291, was not drawn to its earlier judgments in Ashok Kumar Aggarwal, (2013) 16 SCC 147; Sanjiv Rajan, 1993 Supp (3) SCC 483; L. Srinivasan, (1996) 3 SCC 157 and Deepak Kumar Bhola, (1997) 4 SCC 1 = (1997) 2 SCR 1055, wherein it was held that mere delay in conclusion of disciplinary proceedings or criminal cases or long period of suspension would not render the order of suspension invalid.”

6.6. In the case of The Superintending Engineer Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) Vrs. Mohan Kumar, 2022 SCC OnLine Mad 8787 the issue cropped up was whether a delinquent employee is suspended from service on registration of a criminal case or in contemplation of disciplinary proceedings and if charge-sheet or charge memo is not filed or served on the delinquent-employee within three months, the order of suspension has to be revoked. Under such circumstance, the following was the discussion:

“13. To analyse the argument, we would refer to the judgment of the Apex Court in the case of Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291. In the case of Ajay Kumar Choudhary (supra), the Apex Court did not cause interference with the order of suspension as the charge-sheet was served on the delinquent. *** A perusal of the judgment in the case of Ajay Kumar Choudhary (supra) shows a reference to Section 167(2) of the Cr.P.C. to consider the legality of an order of suspension from service. We, therefore, find substance in the argument of learned Additional Advocate General that the revocation of an order of suspension merely on the ground that charge memo was not filed within three months cannot be driven by the provisions of the Cr.P.C., but has to be guided by service rules governing the employee and the guidelines issued by the Government. The period of three months stipulated in the case of Ajay Kumar Choudhary (supra) was taken in reference to Section 167(2) of the Cr.P.C. which is the period given for submission of final report within sixty days or ninety days depending on the sentence provided for the offence.

14. The judgment in Ajay Kumar Choudhary (supra) was otherwise considered by the Division Bench of this Court in the case of Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) Vrs. A. Srinivasan, 2020 Lab IC 3814 [vide judgment dated 2.9.2020 passed in W.A. No. 599 of 2020], wherein it referred to relevant paragraph of the judgment in the case of Ajay Kumar Choudhary (supra) to distinguish it on the facts. The Larger Bench judgment of the Supreme Court in the case of R.P. Kapur Vrs. Union of India, AIR 1964 SC 787 was also referred to justify the continuance of the suspension and thereby the Division Bench in the said case caused interference with the similar judgment of the learned Single Judge. A reference to the judgment of another Division Bench of this court in the case of Director General of Police Vrs. T. Kamarajan [Judgment dated 19.11.2019 passed in W.A. No. 3957 of 2019] was also given, wherein the judgment of the Apex Court in the case of Ajay Kumar Choudhary (supra) was distinguished to hold that the said judgment does not lay down an absolute proposition that an order of suspension cannot go beyond three months. Paragraphs 7 to 11 of the judgment in A. Srinivasan (supra) are quoted hereunder for ready reference:

‘7. The principal question that arises for consideration is whether the order of suspension is liable to be revoked in the facts and circumstances of the case. The undisputed position, in this case, is that criminal proceedings were initiated against the Respondent on the basis of the trap laid by the Vigilance and Anti-Corruption Department. Such proceedings are admittedly pending before the Chief Judicial Magistrate, Thiruvannamalai in S.C. No. 53 of 2018. Therefore, this is clearly a case wherein a charge sheet was filed and the criminal process is underway. The law relating to suspension orders and their revocation should be examined against this background.

8. On perusal of the Full Bench judgment in S. Ravi, it is clear that the Court did not direct the revocation of suspension if the suspension period exceeds a specific duration. This is clear from paragraph-48 and 49 of the said judgment which read as under:

‘48. Tracing the rule from 1930, the first one Madras Civil Services (Classification, Control and Appeal) Rules; thereafter called as Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, 1953, and then the present rules, namely, Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, having been experienced by the administrative set up, the order of suspension made or deemed to have been made under the rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. When the dominant position of the rules from 1930 does not distinguish the conflicting interest of the delinquent employee of revocation at any time and not categorising the clauses, the executive order, which has been brought into action on 30.01.1996, has not been incorporated in the rules till now. Therefore, the force of law as to the application of rule is that notwithstanding the pendency of any case and the Government servant is placed under suspension, the authority competent is empowered to revoke the suspension at any point of time. Keeping the Government servant in a hanging position of prolonged suspension without revocation or review of such order, taking into account various factors, such as, investigation and the other mechanism involved in the process of conclusion of the enquiry for certain reasons not to conclude the enquiry, may not be right on the executive authority and, therefore, we feel, the said issue needs to be considered either by amending the rules or by bringing a proper legislation in regulating the order of suspension.

49. The Constitution of India guarantees the right of public employment and the equality thereof guaranteed to everyone under Article 16(1) shall be made available to every citizen, including the delinquent employee. Such a right has to be enjoyed by the Government servant during the pleasure of the Governor of the State. Therefore, the executive order, taking away the rights conferred upon the citizens, without making necessary amendment to the rules or bringing proper legislation, is bad in law and the review of the order of suspension by the authority without giving any distinction of the category of cases shall be made as a mandatory requirement by prescribing a period of review, otherwise, there will be a serious prejudice and continued apathy over the issue of keeping the Government servant for an unending period under suspension.’

9. The sheet anchor of the Respondent’s case is the judgment in Ajay Kumar Choudhary. Therefore, it is necessary to extract paragraphs 21 and 22 thereof which are 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 Charges/ Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.

22. So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review.’

10. On perusal of the judgment in Ajay Kumar Choudhary, it is clear that the Hon’ble Supreme Court was dealing with a case wherein the Appellant had been served with a charge sheet before the judgment was pronounced. On that basis, on the facts of that case, paragraph 22 reflects that the order of suspension was not set aside although the suspension period exceeded three months. However, while disposing of the case, the Hon’ble Supreme Court held that the suspension period should not extend beyond three months if the memorandum of charges/ charge sheet is not served on the delinquent officer/employee. The judgment in Ajay Kumar Choudhary was dealt with in detail by a Division Bench of this Court in Director General of Police [cited supra]. In the said judgment, this Court held as follows in paragraphs 9-11:

‘9. We are of the view that Ajay Kumar Choudhary (supra) does not lay down any absolute proposition that an order of suspension should never extend beyond three months. In fact, in Ajay Kumar Choudhary (supra), the Supreme Court observed that the directions regarding the restriction on extension of a suspension order beyond three months would not apply as the appellant had been served with a charge sheet. The appellant had only been given the liberty to challenge his continued suspension in any manner known to law, if so advised, and it was clarified that the action of the respondents in continuing suspension would be subject to judicial review. In our view, the learned Single Bench erred in setting aside the suspension placing reliance on Ajay Kumar Choudhary (supra).

10. It is well settled that a judgment is to be understood in the context of the facts in which the judgment is rendered. Sentences in a judgment cannot be read in the same manner as a statute and in any case, words and sentences in a judgment cannot be read out of context. In Padma Sundara Rao (Dead) Vrs. State of Tamil Nadu, (2002) 3 SCC 533, cited by Mr. S. Saji Bino, learned counsel appearing on behalf of the appellant, a Five Judge Bench of the Supreme Court held as under:

‘9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vrs. British Railways Board, (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.’

11. In the instant case, as observed above, a charge sheet had been issued, though after five months and four days of the suspension. The learned Single Bench ought to have considered the question of whether the suspension should outright be set aside or allowed to continue upon consideration of all relevant facts and circumstances, including the nature of the charges.

Likewise, the Division Bench of this Court in R. Elumalai Vrs. District Collector, [2020 SCC OnLine Mad 1472], considered the Ajay Kumar Choudhary case and the judgment of the Delhi High Court in Government of NCT of Delhi (cited supra) and concluded that in cases relating to suspension for alleged involvement in graft charges leading to a criminal trial, interference with the suspension order on the basis that the suspension period exceeded three months is not justifiable.

11. Upon considering the law laid down in the judgments that have been discussed herein above, it is clear that there is no absolute rule in respect of the validity of suspension orders from the perspective of duration especially when such suspension is in the context of a pending criminal proceeding. In other words, in these situations, the law on suspension as laid down in paragraph 11 of R.P. Kapur Vrs. Union of India, AIR 1964 SC 787, by a Five Judge Bench upholding suspension pending enquiry subject to payment of subsistence allowance as per service conditions and that in Union of India Vrs. Ashok Kumar Aggarwal, (2013) 16 SCC 147, wherein it was held that the court does not sit in appeal and that such orders would be interfered with only if the charges are patently baseless, mala fide or vindictive would continue to hold the field. In this case, as stated earlier, there is a pending criminal proceeding, wherein the Respondent is being prosecuted for corruption. In these circumstances, the decision of the learned single Judge to direct the Chief Judicial Magistrate to conclude the proceeding within four months is justified and does not warrant interference. On the other hand, especially in light of the above direction, the revocation of the suspension on the ground that it is prolonged is clearly unsustainable. The consequential direction to post the Respondent in a non-sensitive post is also not sustainable especially in view of the fact that the Respondent is an Assistant Engineer and it is difficult to find a post that may be termed non- sensitive in that cadre. Therefore, we allow the appeal in part insofar as it directs the Appellants to revoke the suspension and to post the Respondent in a non-sensitive post. On the other hand, we affirm the impugned order to the extent that the Chief Judicial Magistrate, Thiruvannamalai, has been directed to conclude the criminal proceedings within a period of four months, albeit with the qualification that the said period shall run from the date of receipt of a copy of the judgment in this appeal.”

15. The issue is required to be considered on facts and in the light of the Tamil Nadu Electricity Board Employees’ Discipline and Appeal Regulations where there is no provision to deem revocation of the order of suspension if it goes beyond the period of three months. The Regulations does not prescribe a specified period of suspension. It only provides for periodical review of the order. It is, however, with a rider that in a case involving corruption, the order of suspension would not be revoked without consulting the Director of Vigilance and Anti-corruption.

16. In the case on hand, the writ petitioner/non- appellant is facing a criminal case for the offence under the provisions of the Prevention of Corruption Act, 1988. He was caught red-handed accepting the bribe. The learned Single Judge passed the judgment under appeal without referring to the Regulations applicable to the case and without realizing the seriousness of the offence. This is apart from the fact that there exist Government instructions dated 26.04.2016, where referring to various judgments of the Supreme Court, which include Ajay Kumar Choudhary (supra) and R.P. Kapur (supra), it was instructed that the time limit of three months on suspension cases is applicable only to the cases arising out of departmental disciplinary enquiries pertaining to non-vigilance and/or any non-criminal cases and the said time limit is not applicable to suspension of an employee facing criminal case or grave corruption charges pending against him. The learned Single Judge has not referred to the aforesaid Government directives, despite a resolution by the appellants for adoption of the guidelines to their Corporation as well.

17. The Larger Bench judgment of the Apex Court in the case of R.P. Kapur (supra) has been referred by the Division Bench of this court in A. Srinivasan (supra). The judgment in the case of R.P. Kapur (supra) was not cited in the case of Ajay Kumar Choudhary (supra) despite being a Larger Bench judgment and, thus, was distinguished by the Division Bench of this court in A. Srinivasan (supra) on facts as well as on legal position after discussing the judgment in the case of Ajay Kumar Choudhary (supra). As stated supra, the judgment in the case of Ajay Kumar Choudhary (supra) otherwise provides the period of three months in reference to Section 167(2) of the Cr.P.C., which stipulates time period for filing the final report in criminal cases, if accused is behind the bars. Thus, the judgment in the case of Ajay Kumar Choudhary (supra) does not lay down the ratio that a suspension order would be illegal if it is continued beyond the period of three months of registration of the criminal case, rather in the case of Ajay Kumar Choudhary (supra) itself the order of suspension was not interfered because charge-sheet was later on filed, though after three months since the date of initial suspension of the delinquent therein.

18. In the case of State of Orissa Vrs. Bimal Kumar Mohanty, (1994) 4 SCC 126, the Apex Court caused interference with the interim order passed by the State Administrative Tribunal against the order of suspension despite registration of the criminal case in reference to allegation of acquisition of property disproportionate to the sources. The Supreme Court held that exercise of judicial review to interfere with a suspension order which has been passed despite a vigilance investigation which led to registration of a criminal case against the delinquent, is thus uncalled for. In the said judgment, the Supreme Court referred to the earlier decision of the Larger Bench in R.P. Kapur (supra). Paragraphs 7 and 10 to 13 of the said judgment are quoted hereunder:

‘7. A Constitution Bench of this Court three decades ago in R.P. Kapur Vrs. Union of India, AIR 1964 SC 787 = (1964) 5 SCR 432 laid the law that:

‘The general principle therefore is that an employer can suspend an employee pending an inquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in this statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the Government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of Government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental inquiry against him.’

***

10. This Court in another case titled Government of India, Ministry of Home Affairs Vrs. Tarak Nath Ghosh, (1971) 1 SCC 734 = (1971) 3 SCR 715 held:

‘Serious allegations of corruption and malpractices had been made against the respondent, a member of the Indian Police Service, serving in the State of Bihar. Inquiries made by the State Government revealed that there was a prima facie case made out against him. He was suspended by an order which stated that disciplinary proceedings were contemplated against the respondent.

On the question whether the suspension of a member of the service can only be ordered after definite charges have been communicated to him in terms of Rule 5(2) of the All India Services (Discipline and Appeal) Rules, 1955, or whether the Government is entitled to place him under suspension even before that stage has been reached after a preliminary investigation.

Held:

(1) The fact that in other rules of service there is specific provision for an order of suspension even when disciplinary proceedings were contemplated, does not mean that a member of the All India Service should be dealt with differently. It would not be proper to interpret the Rules, which form a self-contained Code, by reference to the provisions of other rules even if they were made by or under the authority of the President of India.’

(Quoted from the SCR Headnote)

11. This Court in U.P. Rajya Krishi Utpadan Mandi Parishad Vrs. Sanjiv Rajan, 1993 Supp (3) SCC 483 held that:

‘Ordinarily when there is an accusation of defalcation of monies the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow disciplinary proceedings to continue unhindered.

From the charge-sheet it is clear that the allegations against the first respondent are grave inasmuch as they indicate that the amounts mentioned therein are not deposited in the bank and forged entries have been made in the pass-book and the amounts are shown as having been deposited. In the circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. In matters of this kind, it is advisable that the concerned employees are kept out of the mischief’s range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension.’

12. That was also a case in which the High Court passed interlocutory order and this Court, while reiterating that this Court does not interfere with the interlocutory orders, held that the Court was constrained to do so when the court had overlooked the serious allegations of misconduct.

13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.’

19. In Secretary to Government Vrs. K. Munniappan, (1997) 4 SCC 255 referred by learned counsel for the appellants, the Apex Court considered the power of the Government to suspend an employee who was involved in embezzlement of public funds and held that even if there is a time gap, a threadbare investigation is required to be undertaken, and it would be difficult to find fault with the authorities for not completing investigation expeditiously when many persons were involved. The Apex Court, however, directed expeditious completion of the investigation.

20. In the case of Bimal Kumar Mohanty (supra), the Apex Court held that suspension is not a punishment, but only one for forbidding or disabling an employee to discharge the duties of office or post held by him. It is with the direction that each case may be considered on its facts and taking into account the gravity of the offence or the misconduct. The interference with the order of suspension should not be driven in reference to a judgment, but needs to be determined on facts and after considering the rules governing the delinquent. Judicial review in such matters should be minimal. In the instant case, the allegation against the delinquent is quite serious, as he not only demanded but accepted bribe and was caught red-handed by the Anti-Corruption Department. The aforesaid were the relevant facts, but were not considered by the learned Single Judge while causing interference with the order of suspension. It is even after ignoring the earlier judgment of the Division Bench in the case of A. Srinivasan (supra), wherein it was categorically held that the judgment of the Apex Court in the case of Ajay Kumar Choudhary (supra) does not evolve a general principle for causing interference with the order of suspension if charge-sheet is not served or charge memo is not filed within three months of the order of suspension. The finding of the Division Bench of this Court in the case of A. Srinivasan (supra) has even been ignored, though binding in nature.”

6.7. Full Bench of Madras High Court in P. Kannan Vrs. Commissioner for Municipal Administration, 2022 SCC OnLine Mad 1154 = (2022) 2 CTC 353 (FB) considering the effect of Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 made the following observation:

“32. At this stage, it is to be noted that in certain cases where memorandum of charges/charge-sheet was not filed within three months, the order of revocation was passed with a direction to the employer to post the delinquent in a non-sensitive post. In our considered view, such direction may have serious repercussions. For instance, when an employee makes an allegation of rape against a co-employee, followed by registration of criminal case, then merely for the reason that charge-sheet could not be submitted within three months if the order of suspension is revoked with a direction to post the employee in a non-sensitive post, it may have serious repercussions. Thus, the court should analyze each case on its facts when a challenge to the order of suspension has been made.

33. Moreover, an order of suspension is not considered to be a punishment, as has been held by the Apex Court in State of Orissa Vrs. Bimal Kumar Mohanty, (1994) 4 SCC 126. For ready reference, paragraph 13 of the said judgment is reproduced hereunder:

‘13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.’

***

35. For the foregoing reasons, the reference is answered by holding that:

(i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge- sheet has not been served within three months, or if memorandum of charges/charge-sheet is served without reasoned order of extension.

(ii) The judgment in Chairman-cum-Managing Director, TANGEDCO Vrs. R. Balaji [Judgment dated 27.8.2021 passed in W.A. No. 68 of 2021], has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam.

(iii) The issue of challenge to the order of suspension should be analyzed on the facts of each case, considering the gravity of the charges and the rules applicable.

(iv) Revocation of suspension with a direction to the employer to post the delinquent in a non- sensitive post cannot be endorsed or directed as a matter of course. It has to be based on the facts of each case and after noticing the reason for the delay in serving the memorandum of charges/charge-sheet.”

6.8. Drawing distinction between Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 and the case in Union of India Vrs. Deepaindra Kumar, 2016 SCC OnLine Del 2344, the Delhi High Court made observation as follows:

“22. Learned counsel for the petitioners has also referred to the decision in Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291. The said decision has no application to the facts of the present case. In the said case, the government employee was placed under suspension which was extended from time to time without departmental proceedings being initiated against him by serving a charge-sheet. The suspension order had been passed in contemplation of the departmental proceedings. In the said context and factual background, the Supreme Court had made adverse observations and quashed the suspension order. In the present case, the respondent has been suspended pursuant to his arrest in a case relating to the Prevention of Corruption Act.”

6.9. In Dr. Rashmi Rekha Mishra Vrs. State of Madhya Pradesh, Writ Petition No.9657 of 2023, vide Judgment dated 11.10.2023, it has been observed by the Madhya Pradesh High Court as follows:

“23. The ancillary question is whether in the instant case the petitioner is placed under suspension in a routine manner. It is noteworthy that the purpose of placing an officer under suspension is to keep her away from the mischief range. The purpose is to complete the proceedings unhindered. The suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not get custody or control of papers or take any advantage of her position. [See: Union of India Vrs. Ashok Kumar Aggarwal, (2013) 16 SCC 147 and order of this Court in Smt. Nahid Jahan, 2017 SCC OnLine MP 2173].”

6.10. Delhi High Court in the case of Vikash Kumar Vrs. Union of India, (2023) 6 HCC (Del) 78 = 2023 SCC OnLine Del 5402 = 2023:DHC:6249-DB observed as follows:

“8. We have given considered thought to the contentions raised.

8.1. It is well settled that even though suspension is not specified under Rule 11 of Central Civil Services (Classification, Control & Appeal) Rules, 1965, as a punishment, an order of suspension affects a Government servant injuriously in case departmental inquiry is not concluded within a reasonable time. In that sense, the continued suspension in a pending departmental inquiry becomes punitive in nature and as such if any employee is kept under suspension for unreasonably long period, the same may be unjustified.

8.2. However, at the same time, it may be noticed that the suspension is considered imperative in order to refrain an employee to perpetrate the alleged misconduct and to remove the impression that offending employee can get away even pending inquiry, without any impediment, and also in order to prevent the effort by delinquent employee to scuttle the inquiry or investigation or to win the witnesses. The circumstances may vary and have to be assessed on a case-to-case basis, factoring the nature of misconduct, gravity of allegations and the indelible impact it creates on the service pending inquiry or contemplated inquiry or investigation. The public interest remains one of the prime governing factors in this regard.

***

11. Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 relied upon by learned counsel for the petitioner also came up for consideration in Rakesh Kumar Garg Vrs. Union of India, 2019 SCC OnLine Del 9100 by the High Court of Delhi, wherein a challenge was made to continued suspension of the petitioner since 16.07.2018. The petitioner therein who was posted as Chief Engineer in MES, Ministry of Defence faced serious allegations of corruption and investigation under Section 120-BIPC read with Sections 7, 8, 10 and 12 of the Prevention of Corruption Act. The charge memorandum was yet to be issued for initiation of disciplinary proceedings, since the investigation was pending. This Court relying upon earlier orders passed in State (NCT of Delhi) Vrs. Rishi Anand, 2017 SCC OnLine Del 10506 declined to interfere with the continued suspension order of the petitioner considering the allegations against the petitioner and held that there was serious and valid consideration to justify the continued suspension of the petitioner.

11.1. The observations in paras 20 to 23 in State (NCT of Delhi) Vrs. Rishi Anand, 2017 SCC OnLine Del 10506 are also apt to be noticed and clearly spell out that power of competent authority to pass orders of suspension have not been extinguished in Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 merely because the charge-sheet is not issued within three months of suspension but the said power can be exercised if good reasons are forthcoming:

‘20. It may not always be possible for the Government to serve the charge-sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons. At the same time, there may be cases where the conduct of the government servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitising the environment so that he may not interfere in the proposed inquiry. On a reading of Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291, we are of the view that the Supreme Court has not denuded the Government of its authority to continue/extend the suspension of the Government servant before, or after the service of the charge-sheet if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months if within this period the memorandum of charges/charge- sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/charge-sheet is not issued within three months of suspension, the suspension of the Government servant shall automatically lapse, without any further order being passed by the Government. No such consequence of the automatic lapsing of suspension at the expiry of three months if the charge memo/charge-sheet is not issued during that period, has been prescribed. ***

21. The direction issued by the Supreme Court is that the currency of the suspension should not be extended beyond three months, if the charge memorandum/charge-sheet is not issued within the period of 3 months of suspension. But it does not say that if, as a matter of fact, it is so extended it would be null and void and of no effect. The power of the competent authority to pass orders under Rule 10(6) of the CCS (CCA) Rules extending the suspension has not been extinguished by the Supreme Court. The said power can be exercised if good reasons therefor are forthcoming.

22. The decision of the Supreme Court in Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 itself shows that there cannot be a hard and fast rule in this regard. If that were so, the Supreme Court would have quashed the suspension of Ajay Kumar Choudhary. However, in view of the fact that the charge memo had been issued to Ajay Kumar Choudhary though after nearly three years of his initial suspension, the Supreme Court held that the directions issued by it would not be relevant to his case.

23. From a reading of the decision in Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 and Rule 10 of the CCS (CCA) Rules, it emerges that the Government is obliged to record its reasons for extension of the suspension which, if assailed, would be open to judicial scrutiny not as in an appeal, but on grounds available in law for judicial review of administrative action.’

11.2. The ratio as laid down in State (NCT of Delhi) Vrs. Rishi Anand, 2017 SCC OnLine Del 10506 has also been reiterated by this Court in Dinesh Bishnoi Vrs. Union of India, 2023 SCC OnLine Del 4023.”

6.11. Bombay High Court in the case of Nivedan Bhimrao Torne Vrs. The Municipal Corporation of Greater Mumbai, Writ Petition No.4185 of 2022, vide Judgment dated 18.10.2022 observed with respect to the disciplinary proceedings as follows:

“14. There can be no gainsaying that the disciplinary proceedings must not be kept pending indefinitely and that the same ought to be completed within the shortest time. At this stage, we are reminded of the decision of the Supreme Court in Prem Nath Bali Vrs. Registrar, High Court of Delhi and Anr., (2015) 16 SCC 415 wherein, the Supreme Court had the occasion to rule as follows:

‘33) Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year.’

***”

Analysis and Discussions:

7. Ms. Saswati Mohapatra, learned counsel appearing for the petitioner drew attention of this Court to the “Guidelines of Suspension and Disciplinary Proceedings” issued by the General Administration Department vide Letter No.5144-SC/3-27/2009/Gen, dated 06.03.2010, which laid as follows:

“ As a corrective measure to maintain discipline among Government servants and to award suitable penalties to the recalcitrant officials, disciplinary proceedings are initiated against them under the statutory provisions of the OCS. (CCA) Rules, 1962; Disciplinary proceedings under Rule 15 of the OCS (CCA) Rules, 1962 are intended for award of any major penalties like removal/dismissal from service, compulsory retirement, reduction to a lower post and withholding of increments with cumulative effect. Quite often it is seen that the sense of urgency and promptitude in drawal of disciplinary proceedings under Rule 15 dissipates over time for lack of timely follow up and review at appropriate level. Ultimately the changes cannot be proved and the delinquent officer goes scot-free; There is a misconception among disciplinary authorities that minor penalty proceedings under Rule 16 are all about fine or censure. But there is enough scope for adequate punishment under minor penalty proceedings. Apart from censure and withholding of increments without cumulative effect, which are ordinarily taken recourse to, there are also minor penalties such as recovery of pecuniary loss sustained by Government or withholding of promotion. Unfortunately, these provisions are never at best very rarely, availed by disciplinary authorities. If such penalties-are awarded in disciplinary proceeding under Rule 16, it will definitely save time and ensure adequate punishment of the guilty.

2. Sometimes it is required to place the delinquent Government servant under suspension. Earlier instructions have been issued to the effect that an officer shall be placed under suspension when there is prima facie evidence of gross misconduct or serious dereliction in duty, especially in financial matters on his/her part and there is a reasonable presumption that the proceedings are likely to culminate in the award of major penalty. But there are instances where suspensions have been made for minor offences. Besides, unusual delay occurs in initiating disciplinary action against the delinquent Government Servant placed under suspension. Moreover in many cases of suspension, proceedings initiated against the Government servant are handled in very casual manner. Continuance under suspension for a prolonged period not only adds to the suffering and humiliation of the delinquent Government servant, but also costs heavily to the State Exchequer in terms of payment of subsistence allowance without getting any work from them.

2.1. It is often noticed that an absconding Government Servant or a recalcitrant employee avoiding posting to an inconvenient place, is placed under suspension. Prima facie it seems to be a smart decision. But at times this turns out to be a blessing to the delinquent employee, since now he is entitled to subsistence allowance, which is upto 75% of his emoluments. It is therefore imperative to see if placing a delinquent employee under suspension would serve the objectives of discipline and control. A routine recourse to the provisions of suspension may be avoided.

3. In the past a number of circulars have been issued to regulate disciplinary proceedings and suspension. But the situation has remained unchanged over the years. To tide over the situation following Guidelines are prescribed:

3.1. Disciplinary proceedings:

The disciplinary authority should carefully examine the circumstances while deciding whether the delinquency on the part of the Government servant is grave enough warranting a major penalty proceeding under Rule 15 of the OCS (CCA) Rules, 1962. Cases of gross indiscipline, misconduct and cases involving integrity or moral turpitude shall normally be dealt with under Rule 15. As minor penalties of withholding of increments without cumulative effect, withholding of promotion and recovery of loss to Government can be awarded easily under Rule 16 without taking recourse to the lengthy procedure under Rule 15, full potential of minor penalty proceedings shall be made use of by the disciplinary authorities. For expeditious disposal, of disciplinary proceedings, the disciplinary authority may observe the following date line:

i. Disciplinary proceedings shall be initiated within 30 days of suspension of the delinquent Government servant.

ii. The delinquent Government servant shall be allowed 30 days time from the date of receipt of charges by him to submit his written statement of defence.

iii. Appointment of Inquiry Officer shall be made within a period of 30 days from the date of receipt of written statement of defence.

iv. Submission of inquiry report by the Inquiry Officer within a period of 90 days from the date of his appointment.

v. The disciplinary authority shall ensure expeditious conclusion of the proceeding after receipt of the inquiry report by following the procedure under Rule 15(10) of the OCS (CCA) Rules, 1962.

vi. Minor penalty proceeding shall be concluded within a period of 60 days.

3.2 Suspension:

Suspension of the delinquent Government Servant shall be limited to instances of gross misconduct, serious dereliction in duty, financial irregularity causing huge loss to the state exchequer, misappropriation of Government money, gross indiscipline, cases involving integrity or moral turpitude on the part of the Government Servant. As soon as the Government servant is placed under suspension, efforts should be made to initiate disciplinary proceeding under Rule 15 of the OCS (CCA) Rules, 1962 preferably within thirty days from the date of suspension.

3.3 Periodical Review:

The disciplinary authorities shall review the pending disciplinary proceedings and suspension cases every month. The Administrative Department will undertake constant checks so as to ensure that pending cases are dealt with expeditiously.

It is impressed upon all disciplinary authorities that the above instructions be followed meticulously.

Sd/-

Chief Secretary.”

7.1. She submitted that the disciplinary proceeding stated to have been instituted on 14.09.2023 against the petitioner almost nine months after passing of order of suspension not only runs counter to the express requirement of Guidelines, but also tainted and vitiated for having not been in adherence to the time line stipulated in the Guidelines.

7.2. To buttress her argument, she placed heavy reliance on a Single Bench decision of Madras High Court in the case of N. Annapoorani Vrs. District Collector, W.P. No.23238 of 2020, vide Judgment dated 06.03.2020, wherein referring to the decision of the Hon’ble Supreme Court of India in the case of Ajay Kumar Choudhary, (2015) 7 SCC 291 it is held that prolonged suspension is not only unreasonable but also without any justification. Relying on said decision it is urged that prolonged suspension casts stigma on the delinquent and shadow on the Government servant’s character and integrity on one hand and on the other, the subsistence allowance which is required under law to be paid to the suspended employee would be a loss to the public exchequer as the suspended Government employee draws subsistence allowance without any corresponding discharge of duty. Ms. Saswati Mohapatra, learned Advocate also referred to an Order dated 24.08.2022 of High Court of Jammu & Kashmir and Ladakh passed in the case of Union Territory of J&K Vrs. Hilal Ahmad Rather, W.P.(C) No.1771 of 2022, wherein identical view has been expressed that continuance of order of suspension beyond four years being “very strong stigmatic social connotations” and having “put to lot of stress and temporary deprivation of his full wages over this period” while dismissing the petition filed at the behest of the Union of India.

7.3. Nonetheless, on examination such contention, this Court finds support from decision of the Madurai Bench of the Madras High Court (Division Bench) rendered to in The Superintending Engineer Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) Vrs. Mohan Kumar, 2022 SCC OnLine Mad 8787 and the Full Bench Judgment of said High Court in P. Kannan Vrs. Commissioner for Municipal Administration, 2022 SCC OnLine Mad 1154 = (2022) 2 CTC 353 (FB), to dissipate such a stance taken by the learned advocate for the petitioner. The Madras High Court has referred to Ajay Kumar Choudhary, (2015) 7 SCC 291 and held that the Hon’ble Supreme Court having not taken note of earlier Bench decisions of larger strength, held that Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the Memorandum of charges/Charge- sheet has not been served within three months, or if Memorandum of charges/Charge-sheet is served without reasoned order of extension.

7.4. It may be apposite to refer to Vikash Kumar Vrs. Union of India, (2023) 6 HCC (Del) 78 = 2023 SCC OnLine Del 5402 = 2023:DHC:6249-DB of the Delhi High Court wherein it has observed that the decision of the Supreme Court in Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 itself shows that there cannot be hard and fast rule in this regard and if that were so, the Supreme Court would have quashed the suspension of Ajay Kumar Choudhary.

7.5. The Uttarakhand High Court in Naresh Kumar Vrs. State of Uttarakhand, Special Appeal No.576 of 2019, vide Judgment dated 18.06.2019, having discussed with respect to binding effect of Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 did not wish to interfere with the order of suspension by observing thus:

“This Court may not, therefore, be justified in quashing the order of suspension following the judgment of the Supreme Court in Ajay Kumar Choudhary, (2015) 7 SCC 291, as that would require it to ignore the Constitution bench judgments of the Supreme Court in Khem Chand, (1963) Supp.1 SCR 229 = AIR 1963 SC 687; R.P. Kapur, AIR 1964 SC 787 and V.P. Girdroniya, (1970) 1 SCC 362, as also the other judgments of the Supreme Court in Ashok Kumar Aggarwal, (2013) 16 SCC 147; Sanjiv Rajan, 1993 Supp (3) SCC 483; L. Srinivasan, (1996) 3 SCC 157; and Deepak Kumar Bhola, Deepak Kumar Bhola, (1997) 4 SCC 1 = (1997) 2 SCR 1055. The order under appeal does not, therefore, necessitate interference on this score.”

7.6. Ms. Saswati Mohapata, learned Advocate also made attack on the conduct of the opposite parties in delaying the process of initiation of Disciplinary Proceeding while placing the petitioner under suspension and forcefully submitted that the argument of hers is countenanced by the ratio of State of Tamil Nadu represented by Secretary to Government (Home) Vrs. Promod Kumar IPS & Anr., Civil Appeal No.8427-8428 of 2018 (arising out of S.L.P.(C) No.12112-12113 of 2017, vide Judgment dated 21.08.2018 of Supreme Court of India [(2018) 17 SCC 677].

7.7. In Promod Kumar IPS (supra) against the refusal to set aside the charge memo while allowing revocation of suspension by the Central Administrative Tribunal, Madras Bench, writ petition being preferred before the Madras High Court, the Disciplinary Proceeding initiated was quashed holding that charge memo as non est in law. Questioning the order of the High Court, the State of Tamil Nadu proceeded to the Supreme Court wherein two issues were considered, viz., validity of charge memo and continuance of suspension. The Hon’ble Supreme Court after observing “it is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer.”, on an interpretation of Rule 14(3) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, having regard to Taylor Vrs. Taylor, (1875) 1 Ch.D. 426— if the rule requires something to be done in a particular manner, it should be done either in the same manner or not at all— held that “if any other authority other than the disciplinary authority is permitted to draw the charge memo, the same would result in destroying the underlying protection guaranteed under Article 311(2) of the Constitution of India”. Having held so, while addressing second issue with respect to “suspension”, it has been held as,

“23. This Court in Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration.”

7.8. Perusal of downloaded copy of Judgment rendered in Promod Kumar IPS (supra) furnished by learned Advocate reveals that the same is marked “NON-REPORTABLE”. Furthermore, this Court as has already recorded findings of the Hon’ble Supreme Court in the said case of Promod Kumar IPS, (2018) 17 SCC 677, relying on Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291, needs to be read in the context and the circumstance in which the case was decided.

7.9. It is trite that, observations of Courts are neither to be read as Euclid’s theorems nor as provisions of statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. [Reference may be had to Bharat Petroleum Corpn. Ltd. Vrs. NR Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV), Mumbai Vrs. State of Maharashtra, (2008) 1 SCC 494; Bhuwalka Steel Industries Limited Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273; Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1 = (2011) 7 SCC 397.

7.10. Bearing in mind aforesaid dicta, it may be noteworthy to have glance at the following observation of the Full Bench of Madras High Court with respect to observations made in Promod Kumar IPS (supra):

“31. At this stage, we need to refer to the judgment of the Apex Court in the case of Promod Kumar, supra. The aforesaid judgment is again to be read in the context of the facts given therein. That was a case of deemed suspension, as the employee therein remained behind bars for more than 48 hours. Wherein, largely the issue was in reference to challenge to the charge memo. In paragraph (27) of the said judgment, the court analyzing the facts did not find it appropriate to continue the order of suspension, as there would be no threat to the fair trial. The judgment in the said case was on its own facts. Thus, we are of the view that the judgment of the Apex Court in the case of Ajay Kumar Choudhary, supra, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet is not served within three months. Rather, the issue of challenge to the order of suspension should be analysed on the facts of each case. It is keeping with the gravity of the charges and the period therein because in case of trap, the order of interference with the order of suspension may have serious consequences.”

7.11. Thus, Promod Kumar IPS, (2018) 17 SCC 677 and Ajay Kumar Choudhary Vrs. Union of India, (2015) 7 SCC 291 may not be construed to have laid down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the Memorandum of charges/Charge-sheet is not served within three months, the decisions on which heavy reliance has been placed on by Ms. Saswati Mohapatra, learned Advocate is distinguishable on facts and has no application to the present fact-situation.

7.12. Coming back to the instant case, the Statement of Imputation as at Annexure-II appended to Memorandum dated 14.09.2023 (Annexure-10 to the writ petition) reveals that,

“While no specific order of the Promotion Adalat was there on regularise the officiating period of Sri Patra in the Posts of Tracer and Assistant Architectural Draughtsman and his such claims being rejected by Works Department vide Order No.11399 dated 13.08.2021, the proposal for regularisation of the officiating service period of Sri Tapan Kumar Patra in the posts of Tracer from 23.02.1989 to 07.02.1990 and Assistant Architectural Draughtsman for the period from 08.02.1990 to 11.09.1990 was process in File No.EAPF-18/90, but the signature of the dealing Assistant was found missing in the file. Sri Pabitra Matia, Administrative Officer of the Office of the Chief Architect endorsed the proposal to the Chief Architect to regularise the officiating service periods of Sri Tapan Kumar Patra in the posts of Tracer and Assistant Architectural Draughtsman as per the decisions of the Promotion Adalat and Works Department Letter No.11399 dated 13.08.2021 and the Chief Architect approved the same. It clearly indicates that with ulterior motive, Sri Matia, the Administrative Officer misled the Chief Architect to approve the regularisation proposal which is unexpected and unbecoming on the part of an officer of his rank. It seems that Sri Matia has not exercised due diligence in submission of his proposal.

Such acts of Sri Matia amount to gross misconduct, negligence in Government duty, misleading the higher authorities and violation of [Rule 3 and Rule 4] of the Odisha Government Servants’ Conduct Rules, 1959.”

7.13. On the facts narrated and elicited through documents enclosed to the writ petition, whether the circumstances do exist warranting suspension depends upon careful analysis of documents and evidence on concerned record. Such determination is within the domain of the Disciplinary Authority or Suspension Review Committee while reviewing if there is requirement to extend the period of suspension. Each case must be considered depending on the nature of the allegations, gravity of the situation, and the indelible impact it creates on the service for the continuance of the petitioner in service pending inquiry or contemplated inquiry or investigation or disciplinary proceeding. In the present case, vide Order dated 07.12.2023 the Disciplinary Authority has appointed Inquiring Officer by declining to allow the prayer to revoke order of suspension on 19.10.2023. Having glance at said Order dated 19.10.2023 passed by the Disciplinary Authority it appears that in connection with Memorandum dated 14.09.2023 the petitioner has not yet filed written statement of defense and, therefore, the Disciplinary Authority considered it appropriate to place the case of the petitioner relating to suspension in the subsequent Suspension Review Committee for appropriate decision.

7.14. The averment in the writ petition is silent about furnishing of written statement of defense by the petitioner. In view of the legal aspect as set forth with regard to continuance or revocation of suspension, merely because there is delay in initiation of the Disciplinary Proceeding from the date of order of suspension, the contention of the petitioner to revoke the suspension and reinstatement in service is liable to be rejected.

8. Another factor which is highlighted by way of written note of submission (paragraph 8), but was not available in the pleadings, is with respect to subsistence allowance. It seems misleading fact has been put forth in the written note of submission filed on 26.07.2024 by the petitioner that he “has not been sanctioned with 75% of subsistence allowance as per the provision of law” and it is submitted that “continuance under suspension for a prolonged period, not only adds to the suffering and humiliation of the delinquent Government servant, but also costs heavily to the State Exchequer in terms of payment of subsistence allowance without getting any work from them”. Both the submissions appear to be contradictory to each other.

8.1. When a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. [Bharat Singh Vrs. State of Haryana, AIR 1988 SC 2181].

8.2. Thus, the writ petition must contain all necessary pleadings disclosing all facts and the rights in favour of the petitioner. It must disclose as to when and how the cause of action had arisen and any action or order passed by the opposite parties which has created any hindrance to the rights of the petitioner. As the aforesaid particulars are not disclosed, the Court refrains from entertaining such point raised by the counsel for the petitioner by way of written note of submission.

8.3. The observation of the opposite party No.1 in the Order dated 14.12.2022 runs contradictory to what is submitted by the petitioner. It is of relevance to take cognizance of the observation contained in the said order to the effect that “Sri Matia, Administrative Officer shall be entitled for payment of subsistence allowances in accordance with Rule 90 of the Odisha Service Code during the period of suspension”.

9. It was next contended that the suspension being clamped by the Principal Secretary to Government of Odisha in Works Department vide Annexure-9, who is not the Appointing Authority, the said Order of suspension is non est in the eye of law. Perusal of record reveals that by issue of Memorandum dated 14.09.2023 (Annexure-10) the Disciplinary Proceeding has been initiated and vide Order dated 07.12.2023, the said Disciplinary Authority has appointed Commissioner for Departmental Inquiry (CDI), General Administration and Public Grievance Department, Odisha, Bhubaneswar as the Inquiring Officer under Rule 17 read with Rule 15(4) of the OCS CCA Rules. Since the Principal Secretary to Government in Works Department is the Disciplinary Authority, he has the Authority to issue order of suspension.

9.1. Rule 12 of the OCS CCA Rules vests power on the following Authorities to pass orders of suspension where a Disciplinary Proceeding is under contemplation or pending; or any Criminal offence is under investigation or trial, against a Government employee:

i. The Appointing Authority; or

ii. Any Authority to which it is subordinate; or

iii. Any Authority empowered by the Governor.

9.2. The terms “APPOINTING AUTHORITY”, “DISCIPLINARY AUTHORITY”, “GOVERNMENT” and “DEPARTMENT OF GOVERNMENT” are defined in clauses (a), (c), (d) and (e) of Rule 2 of OCS CCA Rules.

9.3. The petitioner, suspended Government employee, was posted as the Administrative Officer in the Office of the Chief Architect, the opposite party No.2. In the Odisha Government Rules of Business under Title: “XVI— Works Department”, the “Architectural Wing for all Public Works” has been inserted vide Notification No. 5237, dated 09.03.1994. Thus, the Office of the Chief Architect would come within the control of the Works Department in terms of said Rules of Business.

9.4. Plain reading of Rule 12 read with clauses (a), (c), (d) and (e) of Rule 2 of the OCS CCA Rules admits of no ambiguity that the Office of the Appointing Authority- opposite party No.2, being under the administrative control of the Works Department and said Authority is subordinate to it, the Principal Secretary to the Government of Odisha in Works Department having initiated the Disciplinary Proceeding qua the petitioner, has the Authority to issue Order of suspension.

9.5. The Show Cause Notice dated 22.06.2022 at Annexure-7 transpires that four employees including the Chief Architect and the petitioner are required to face the Disciplinary Proceeding in respect of same factual foundational transaction, i.e., allowing Sri Tapan Kumar Patra to grant him regular promotion from officiating in the promotional post by showing undue favour. It is also clearly depicted in the Order dated 07.12.2023 (Annexure-12) that the Inquiring Officer has been appointed invoking Rule 17 of the OCS CCA Rules.

9.6. It is, thus, manifest from cumulative reading of provisions of Rule 17 read with Rule 14 and the definitions of the relevant terms contained in clauses (c), (d) and (e) of Rule 2 of the OCS CCA Rules and with reference to the Schedule appended thereto vis-à-vis documents referred to above that the Disciplinary Authority in respect of the Chief Architect, the highest Authority in the hierarchy amongst the delinquents, who is facing common Disciplinary Proceeding along with the petitioner and two others, is the Secretary to the Government.

9.7. The challenge as to the jurisdiction of the Principal Secretary to Government of Odisha in Works Department to pass order of suspension and initiate Disciplinary Proceeding is answered accordingly and the objection raised by the petitioner in this regard has no force.

Conclusion:

10. Before recording conclusion whether the order of suspension is liable to be continued, it is apt to observe that any opinion on merit of the matter whether there involves grave misconduct, dereliction of Government duty, disobedience of Government order, negligence in Government duty and misleading the higher Authorities, would affect fair scope for Disciplinary Authority to proceed with the examination of allegations and taking decision thereon. Thus, this Court without expressing opinion on the merit of the inquiry or proceeding of the Disciplinary Authority feels it expedient to indicate such facts for the purpose of determining the question posed by the petitioner.

11. Nevertheless, this Court is called upon to consider whether prolonged suspension can be sustainable beyond period stipulated in the Guidelines dated 06.03.2010. Suffice it to note that the proposal given to the Chief Architect by the petitioner, Administrative Officer, ignoring involvement of custodian of the file, i.e., Dealing Assistant, is a procedural lapse and submitting file to the higher Authority with positive proposal by showing undue favour to Sri Tapan Kumar Patra suggesting to regularize his officiating service period in the posts of the Tracer and the Assistant Architectural Draughtsman, as alleged in the Memorandum dated 14.09.2023 may lead to imposition of penalties specified under Rule 13 of the OCS CCA Rules.

11.1. Regard being had to the pleadings and the averments along with the arguments advanced by counsel for respective parties on the facts and in the circumstances, this Court finds it difficult to interfere with the rejection of representation dated 09.01.2023 vide Order dated 19.10.2023 passed by the opposite party No.1 (Annexure-11).

11.2. For the reasons discussed above inter alia that the ratio of Judgment in Ajay Kumar Choudhary, (2015) 7SCC 291 and Promod Kumar, IPS, (2018) 17 SCC 677 are inapplicable to the present fact-situation, and thereby, the argument of Ms. Saswati Mohapatra, the learned Advocate in this regard cannot derive support to assist the cause of the petitioner. Regard may be had to the observation made by the Hon’ble Supreme Court of India in the case of Kalyan Dombivali Municipal Corporation Vrs. Sanjay Gajanan Gharat, (2022) 4 SCR 453, wherein following distinction feature has been noticed:

“49. We are therefore of the considered view that the High Court has totally erred in setting aside the suspension and the departmental proceedings initiated against respondent No.1. The effect of the impugned judgment is that the respondent No. 1, who has been, prima facie, found to be involved in a serious misconduct, has been left scot-free without requiring to face any departmental proceedings and directed to be reinstated in services.

50. Insofar as the prolonged suspension of the respondent No.1 is concerned, the respondent No.1 has relied on the Judgments of this Court in the cases of Ajay Kumar Choudhary (supra) and State of Tamil Nadu represented by Secretary to Government (Home) Vrs. Promod Kumar, IPS and Another, (2018) 17 SCC 677. Insofar as the Judgment of this Court in the case of Ajay Kumar Choudhary (supra) is concerned, though this Court has deprecated the protracted period of suspension and repeated renewal thereof, in the facts of the said case, this Court found that since the appellant therein was served with a charge-sheet, the direction issued in the said case may not be relevant to him any longer.

51. Insofar as the Judgment of this Court in the case of Promod Kumar, IPS (supra) is concerned, this Court observed thus:

‘24. *** 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 against the first respondent are serious in nature. However, the point is whether the continued

suspension of the first respondent for a prolonged period is justified.”

52. In the said case, the respondent No.1 therein was suspended for more than six years. This Court found that no useful purpose would be served by continuing the respondent No.1 therein under suspension any longer.

53. We find that in the present case, it is the respondent No.1 who, though called upon to participate in the departmental proceedings, has on his own, chosen not to participate therein. It is the respondent No.1, who had objected to the initiation of the departmental proceedings by the Commissioner on the ground of jurisdiction and refused to participate in the departmental proceedings. We therefore find that the respondent No.1 cannot be permitted to take benefit of his own wrong. In any case, we find that the issue of prolonged suspension would be taken care of by directing the Departmental Proceedings to be completed within a stipulated period but the suspension of respondent No.1 would continue till then.

54. We find that the impugned judgment passed by the High Court is not sustainable in law.”

11.3. This Court finds from the observation of the Principal Secretary to the Government of Odisha in Works Department in the impugned Order dated 19.10.2023 that written statement of defense has not yet been filed in connection with the Memorandum dated 14.09.2023. Therefore, no indulgence is warranted to be shown in the present circumstance.

11.4. With regard to submission of the learned counsel for the petitioner that the Authority concerned while rejecting the representation overstepped to take cognizance of the terms of the Guidelines on Suspension and Disciplinary Proceeding as issued by the General Administration Department in its Letter No.5144/Gen, dated 06.03.2010 is hereby rejected, for that such Guidelines are non-statutory in nature. The record unravels that the Disciplinary Authority has recommended the case of suspension of the petitioner to be placed before Suspension Review Committee. Hence, considering the nature of charges imputed in the Memorandum dated 14.09.2023, it cannot be said that the substance of Guidelines are not followed.

12. With delineated conspectus of law as discussed in the paragraphs vis-à-vis the factual matrix obtained on record, since the petitioner has not yet furnished the written statement of defense before the Disciplinary Authority and his case was suggested to be placed before the Suspension Review Committee, this Court does not find merit in the submissions of the writ petitioner that the Authority has, on an erroneous approach, rejected the representation.

13. However, the interest of justice would be subserved with the following directions:

(i) The petitioner shall be at liberty to submit his written statement of defense to the charges vide Memorandum No.15441—CON-CASES-0051- 2022/W., dated 04.09.2023 (Annexure-10) within a fortnight from date;

(ii) On receipt of such written statement of defense the Disciplinary Authority shall proceed with the matter in terms of provisions containing in the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962;

(iii) As suggested in the Order dated 19.10.2023 of the Principal Secretary to Government of Odisha in Works Department, the concerned file of the petitioner shall be placed before the Suspension Review Committee within a period of seven days from the date of receipt of the written statement of defense;

(iv) The Suspension Review Committee shall consider the requirement as to continuance of suspension of the petitioner taking into view the legal perspective as discussed above.

(v) The petitioner shall attend the inquiry as well as the proceeding and co-operate with the Authorities for expeditious disposal of the matter.

(vi) The Disciplinary Authority shall endeavor to conclude the Disciplinary Proceedings within six months, and any final order that may be passed shall be communicated to the petitioner.

14. With the aforesaid directions the writ petition stands disposed of, but in the circumstances there shall be no order as to costs.