TaxTMI 
TaxTMI 
2017 (9) TMI 2005
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....unal has allowed the O.A. on the very first day of hearing by placing reliance on the decision of the Supreme Court in Ajay Kumar Choudhary v. Union of India & Anr., (2015) 7 SCC 291. Consequently, the continued suspension of the respondent beyond the initial period of 90 days, vide orders dated 27.09.2016 and 07.04.2017 was quashed. The respondent was directed to be reinstated within one week. The Tribunal also directed that the respondent shall be entitled to full salary for the period w.e.f. 10.10.2016. With regard to the earlier period, the determination of the manner of treatment of the suspension period of 90 days was left to be undertaken under FR 54B. 3. The facts, in brief, are that the respondent while working as a Specialist ENT and Medical Officer-in-charge of Satyawadi Raja Harish Chander Hospital, GNCTD was placed under suspension vide order dated 12.07.2016 in contemplation of disciplinary proceedings under Rule 10(1) of the CCS (CCA) Rules, 1965. His suspension was extended by 180 days vide order dated 27.09.2016 with effect from 10.10.2016 to 07.04.2017 pursuant to the recommendations of the review committee. The charge sheet was issued to the respondent on 01.03.....
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....der of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the charged officer. As such, it should be ensured that the charge sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensure that charge sheets are issued in time. 3. It should also be ensured that disciplinary proceedings are initiated as far as practicable in cases where an investigating agency is seized of the matter or criminal proceedings have been launched. Clarifications in this regard have already been issued vide O.M. No. 11012/6/2007- Estt.A-Ill dated 21.07.2016.... ....". 5. Since the petitioner is aggrieved by the aforesaid directions contained in the impugned order, the petitioner has preferred the present petition. 6. The submission of learned counsel for the petitioner is that, firstly, a suspended employee, whose suspension has been extended beyond the period of 90 days under sub-rule (6) of Rule 10 does not acquire a statutory right to seek revocation of his suspension, even if the charge memo is not issued within ....
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....been suspended with effect from 30.09.2011 and the Supreme Court observed that the same "has been extended and continued ever since". 11. In the said case, the tribunal had directed that if no charge memo was issued to the appellant Ajay Kumar Choudhary before the expiry of 21.06.2013, then he would be reinstated in service. The said order was assailed by the Union of India before the High Court. The High Court disposed of the petition by issuing a direction to the Central Government to pass appropriate orders "as to whether it wishes to continue with the suspension or not having regard to all the relevant factors, including the report of CBI, if any, it might have received by now. This exercise should be completed as early as possible and within two weeks from today". 12. The appellant then approached the Supreme Court to assail the said direction of the High Court. The Supreme Court observed in its decision that till arguments were heard on 09.09.2014, neither the charge sheet, nor the memorandum of charge had been served on the appellant. It was represented before the Supreme Court that the charge sheet was expected to be served on the appellant before 12.09.2014. The Supreme ....
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....d on the appellant Ajay Kumar Choudhary when he initially assailed his suspension, or even till the hearing of the appeal took place before the Supreme Court on 09.09.2014 (it was only between 09.09.2014 and the date of decision on 16.02.2015 that the charge sheet appears to have been served), the Supreme Court held that since the charge sheet had been served on the appellant, therefore, the directions issued by it would not be relevant to his case. Despite the fact that the appellant Ajay Kumar Choudhary had remained under suspension right from 30.09.2011, the Supreme Court did not set aside the order of suspension since, in the meantime, Ajay Kumar Choudhary had been served with a charge sheet sometime after 09.09.2014, i.e. nearly three years after his suspension. 15. The O.M. dated 23.08.2016 and even the earlier O.M. dated 03.07.2015 issued by the DoPT (a copy whereof has been tendered in court by counsel for the respondent) evidently have misconstrued the said decision of the Supreme Court, since the facts of the said case and the eventual directions issued in para 22 of the said decision, appear to have escaped attention. 16. There can be no quarrel with the proposition th....
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....Others, AIR 2005 SC 2441, while examining the issue: whether the obligation cast on the defendant to file the written statement to the plaint under Rule (1) of Order 8 CPC within the specified time was directory or mandatory i.e. whether the Court could extend the time for filing of the written statement beyond the period specified in Rule 1 of Order 8, the Supreme Court held that the Court had the power to extend the time for filing of the written statement, since there was no consequence prescribed flowing from non-extension of time. In para 29 of this decision, the Supreme Court observed as follows: "29. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision c....
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....ore 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." (Emphasis supplied) 22. Thus, it is only if the suspension is not extended after review within the initial period of 90 days (in a case to which sub-rule (2) does not apply), that the suspension of the government servant would lapse automatically. In all other cases, the suspension would continue unless and until it is modified or revoked by the competent authority though it would not imply that there is no requirement to conduct periodic renewal of the suspension. This is so provided in sub-rule (5)(a) of Rule 10, which reads as follows: "10 (5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this....