V. Ajay Kumar, Member (J).
1. The applicant, an Assistant Director General, Ministry of Tourism, was placed under suspension vide Order dated 21.11.2012, with immediate effect, on the ground that a disciplinary proceedings is contemplated/pending against him. The Suspension Review Committee of the respondents reviewed the suspension of the applicant on 08.02.2013 and extended the period of suspension of the applicant for a further period of three months with effect from 21.02.2013, vide Order dated 20.02.2013. Again the respondents vide Order dated 06.06.2013 extended the period of suspension of the applicant for a further period of three months w.e.f. 21.05.2013. Thereafter, the respondents extended the period of suspension of the applicant from time to time and accordingly, he is being continued under suspension as on today.
2. The applicant filed the present OA questioning his suspension and extension of suspension orders on the ground that the same are violative of Rule 10(6) and (7) of the CCS (CCA) Rules, 1965 and for consequential benefits.
3. The learned counsel for the applicant placed reliance on the Judgment of the Honble Apex Court in Union of India v. Deepak Mali, (2010) 2 SCC 222, and on other Judgments of this Tribunal.
4. Heard Shri Amit Anand, learned counsel for the applicant and Shri M.S.Reen, learned counsel for the respondents and have perused the pleadings on record.
5. Rule 10 (6) and (7) of the CCS (CCA) Rules, 1965 read as follows:
(6). An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
(7). An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days :
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later.
6. The Honble Apex Court in Deepak Malis case (supra), categorically held that having regard to the amended provisions of sub-rules (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days.
7. In view of the unambiguous language of Rule 10 (6) and (7) of the CCS (CCA) Rules, 1965 and the Judgment of the Honble Apex Court, unless the suspension of a public servant was reviewed and an order extending the suspension is issued within the prescribed period of 90 days, any subsequent review or even if the review was conducted within time but the order extending the period was not issued within the time, the suspension became invalid after the expiry of the earlier 90 days period.
8. The applicant contends that he was placed under suspension by order dated 21.11.2012, with immediate effect, and hence, the period of 90 days expired on 18.02.2013. But the respondents passed the 1st extension of suspension order on 20.02.2013, i.e., after the period of expiry of 90 days, w.e.f. 21.02.2013. Even the said extended period of 90 days expired on 20.05.2013. The respondents extended the suspension for a further period of 90 days by passing an order only on 06.06.2013, i.e., again after expiry of 90 days.
9. Per contra, the respondents submit that though the initial suspension Order is dated 21.11.2012, but the same was received by the applicant only on 23.11.2012, and in view of the clarifications issued with regard to Rule 10 of the CCS (CCA) Rules, 1965, i.e., Chapter Suspension, where, however, a Govt. Servant has performed his prescribed hours of duty on any particular day, suspension can be effective for the subsequent day, and since the applicant performed his duty upto 22.11.2012 and received the suspension order only on 23.11.2012, the period of 90 days expired only on 20.02.2013. The suspension review committee reviewed the suspension of the applicant on 08.02.2013, i.e., well within the period of 90 days, and since the respondents passed an order extending the period of suspension on 20.02.2013, there is no violation of the aforesaid Rules. Further, the respondents passed orders extending the period again on 06.06.2013 w.e.f. 21.05.2013, and hence, there is no illegality or irregularity in the orders of the respondents.
10.Even if the contention of the respondents is accepted that the 1st Order of suspension came into effect on 23.11.2012, i.e., the date on which the suspension order was received by the applicant, but the period of 90 days from 23.11.2012 expired on 20.02.2013. The extension period of 90 days under Order dated 20.02.2013 w.e.f. 21.02.2013 expired by 21.05.2013. Admittedly, the respondents passed the next extension of suspension order only on 06.06.2013, which does not indicate whether any review was conducted before passing the said order. Even from the counter averments of the respondents, it is not forth coming on what date the suspension of the applicant was reviewed before passing the said order dated 06.06.2013.
11.Even if it is considered that the review was conducted before 21.05.2013, but admittedly the extension order passed only on 06.06.2013 and in view of the aforesaid Rule and the categorical declaration of law by the Honble Apex Court in Deepak Malis case (supra), unless the order extending the period of suspension is passed before the expiry of the 90 days period of suspension, the subsequent order shall become invalid. Consequently, the other orders subsequent to the invalid order would also become invalid.
12.The learned counsel for the respondents further submits that against an order of suspension, issued under Rule 10 of the CCS (CCA) Rules, 1965, an appeal under Rule 23(1) of the said Rules is available, and as the applicanthas approached this Tribunal without exhausting the said alternative and effective statutory remedy, the present OA is liable to be dismissed. The learned counsel also placed reliance on the Judgment of this Tribunal in OA No.82/2014. The learned counsel for the respondents further submits that the applicant filed another OA No.2877/2013 for the same relief, and hence, on this ground also, the OA is liable to be dismissed.
13.Per contra, the learned counsel for the applicant submits that since the Order dated 20.02.2013 and 06.06.2013 extending the period of suspension of the applicant became invalid as the same were not passed within the prescribed period under Rule 10 (6) and (7) of the CCS (CCA) Rules, 1965, not availing the alternative remedy, cannot come in his way in preferring the present OA. The learned counsel also submits that availability of an alternative remedy is a rule of discretion and not one of compulsion, and hence, the OA is maintainable. He further submits that he has not suppressed the fact of filing of OA No.2877/2013 and that he duly mentioned the same in the present OA, and the same was filed questioning the Charge Memorandum and for other consequential reliefs. He further submits that he has already filed an application seeking withdrawal of the same.
14.As per Section 20(1) of the Administrative Tribunals Act, 1985, a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules, as to redressal of grievances. In the circumstances of the case, and in view of the law on the point of alternative remedy, and in view of the fact that the present OA is pending for a considerable period, and pleadings are complete, and also that giving liberty to the applicant to exhaust the alternative remedy available to him would be an empty formality at this stage, keeping in view the peculiar circumstances of the case and in the interest of justice, we do not consider it proper to reject the OA on the ground of non availing of the alternative remedy.
15.Since the OA 2877/2013 is filed mainly seeking quashing of the Charge Memorandum, and even other wise the same was withdrawn on 7.03.2014, we reject the contention of the respondents.
16.In view of categorical declaration of law by the Honble Apex Court in Deepak Malis case (supra), we do not propose to discuss the decisions of other Courts, which are also in line with the said decision.
17.In the circumstances and in view of the finding that the Order dated 06.06.2013 extending the period of suspension of the applicant is passed after the expiry of the 90 days period on 21.05.2013, the OA is allowed and the respondents are directed to treat the applicant in service w.e.f. 22.05.2013 for all purposes and with consequential benefits. The respondents shall pass orders forthwith for reinstatement of the applicant w.e.f. 22.05.2013 and shall pay the consequential pay and allowances within eight weeks from the date of receipt of a copy of this order. No order as to costs.