Gauri Shankar vs State Of H.P And Others

Tarlok Singh Chauhan, J

The instant writ petition has been filed for the grant of following substantive reliefs:

i) "That in view of the above mentioned facts and circumstances the impugned extension order of the petitioner dated 26.06.2020 may kindly be quashed and set­ aside and revoke the suspension of the petitioner in the interest of justice and fair play.

ii) That the respondents may kindly be directed to revoke the suspension order of the petitioner and re­instate the petitioner as per law laid down in CWP No. 4915 of 2010 titled Puran Chand Sharma vs. State of H.P. & another vide judgment dated 31.12.2010 on a verdict rendered by the Hon'ble Apex Court in Union of India and others vs. Dipak Mali (2010) 2 SCC 222 (Annexure P­8) alongwith all consequential benefits."

Brief facts of the case are that the petitioner while working as Principal in Govt. Senior Secondary School, Barsar was arrested in FIR No. 79 of 2019 dated 29.5.2019 registered with the Police Station, Barsar, District Hamirpur, H.P. under Sections 8 and 12 of the POCSO Act, Section 67A of the IT Act, Section 3(i) (S) W (i) (ii) of SC & ST (POW) Act, and Sections 435 A & 506 IPC.

On 30.05.2019 the petitioner after being arrested was put under suspension and his headquarter was fixed in the office of the Directorate of Higher Education, Shimla.

On 09.09.2019, the petitioner was released on bail by this Court. Thereafter, on 16.09.2019 the petitioner submitted his joining which was not acceded to and now the grievance of the petitioner is that since the order of suspension was not reviewed by the respondents within a period of 90 days, therefore, his further suspension is not tenable and is liable to be revoked.

The respondents have filed the reply and the only justification offered by them in not reviewing the order of suspension within 90 days is that the fact of detention of the petitioner in police custody came to the notice only on 28.02.2020 and as per the provision of Rule 10(7) of the CCS (CCA) Rules, 1965, the first spell of ninety days of suspension will count from the date when information in respect of his detention is intimated to his appointing authority.

We have heard the learned counsel for the parties and have gone through the material placed on record.

Rule 10(7) of CCS (CCA) Rules reads as under:

["(7) An order of suspension made or deemed to have been made under sub­rule (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 sub­rule (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.]"

The aforesaid rule came up for consideration before the Hon'ble Supreme Court in Union of India and others vs. Dipak Mali, AIR 2010 SC 336, wherein it was held that if the initial or subsequent period of extension has expired, the suspension order comes to an end because of the expiry of the period provided under Rule 10(6) of the Rules 1965. It was further held that the suspension order reviewed or extended thereafter is not permissible after expiry of the original period of 90 days. It shall be apposite to reproduce the necessary observations as contained in paras 10 and 11, which read as under:

"10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the Respondent and when the Petitioner's case came up for review on 20th October, 2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, 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.

The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of Sub­rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension."

The learned Advocate General does not dispute the legal position, but would contend that the respondents were not aware of the detention of the petitioner, therefore, in terms of the provision of Rule 10(7) of the Rules, the period would only commence from the date of knowledge which in this case happens to be 29.02.2020 and the meeting of the Review Committee held on 12.06.2020 was well within the period prescribed. He would further contend that the suspension order of the petitioner could not be reviewed and extended because of the outbreak of COVID­ 19 pandemic and came to be reviewed only on 12.06.2020 and therefore, the order passed by the Review Committee needs to be upheld.

We find no merit in the first contention of the learned Advocate General for the simple reason even if it is assumed that the respondents were not aware of the arrest of the petitioner and this fact only came to their knowledge on 29.02.2020, even then, the order of suspension ought to have been reviewed from this date which expired in May, 2020 itself.

This submission is otherwise not factually correct and was very much in the knowledge of respondent No.1, because earlier to that it is this respondent, who while suspending the petitioner vide order dated 30.05.2019 has categorically observed as under:

"Department of Higher Educational

No.EDN­B­B(14)­14/2019 Dated:Shimla­2, the 30.05.2019

ORDER

Whereas, it has come to the notice of undersigned through a fact finding enquiry report submitted by the Dy. Director Higher Education, Hamirpur regarding involvement of Sh. Gauri Shankar Bhardwaj, Principal, GSSS Barsar, Distt. Hamirpur in sexual harassment of girl student (10+1 class) by sending obscene messages on her mobile.

Whereas, as per report of DDHE Hamirpur, it has been found that Sh. Gauri Shankar Bhardwaj, Principal, has given a mobile and transferred Rs.3000/­ in the account of girls student and also send obscene message on her mobile.

Whereas, the accused Principal Sh. Gauri Shankar was taken in police custody and an FIR No.70 of 2019 dated 29.05.2019 (at 13:32 hrs) under Section 12 of POCSO Act, 2012, 67­A of II Act, 2000 and Section 506 of IPC was lodged against him on the complaint made by Sh. Pyar Chand (father of the girl student).

Now, therefore, the undersigned in exercise of the powers conferred by sub­rule (1) of Rule 10 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 hereby places the said Sh. Gauri Shankar Bhardwaj, Principal GSSS Barsar District Hamirpur under suspension with immediate effect.

It is further ordered that during the suspension period, the headquarter of Sh. Gauri Shankar Bhardwaj, Principal, GSSS Barsar, District Hamirpur H.P. is fixed in the O/O Directorate of Higher Education, Shimla­1 and he shall not leave the headquarter without obtaining prior permission of the undersigned.

By name and in the name of Governor.

Sd/­

(Kamlesh Kumar Pant,IAS)

Principal Secretary (Education) to the Government of Himachal Pradesh."

As regards the issue of COVID­19, the respondents cannot take advantage in not reviewing the order of suspension in view of the decision rendered by this Court in CWP No. 2171 of 2020 titled Suneel Dutt vs. State of H.P. and others, decided on 13.7.2020, wherein it was observed as under:

"7. It is not in dispute that in view of the outbreak of COVID­19 pandemic, lockdown was announced by the Government only on 24.03.2020 and the time 90 days for review of the suspension order in terms of the Rules 10(7) had already expired. Therefore, the respondents can take no advantage of the lockdown that was imposed subsequently.

In addition to the aforesaid, we find it extremely disturbing that the members of the Review Committee which had failed to review the case of the petitioner for extending/revocation of his suspension order would blame it on the lockdown as if that had foreseen it earlier to its actually being enforced.

This tendency of inventing reasons for one's failure, when practically none exist, needs to be strongly deprecated. We observe so because in another CWP No. 2168 of 2020 titled Gauri Shankar vs. State of H.P. and others', we have already vide separate order of the day asked the members of the Review Committee to explain their position as therein also these very members had tried to justify their inaction for no plausible reasons whatsoever.

It cannot be disputed that Rule 10(7) of the CCS (CCA) Rules confers a valuable right on a person placed under suspension and as held by the Hon'ble Supreme Court in Dipak Mali's case (supra) the subsequent review and extension of the order cannot revive the order of suspension which has already become invalid after the expiry of the 90 days from the date of the suspension."

Consequently, we find merit in this writ petition and the same is accordingly allowed. The impugned extension order of the suspension of the petitioner dated 26.06.2020 is quashed and set aside and resultantly the suspension of the petitioner is revoked. The petitioner shall be entitled to all consequential benefits after completion of the 90 days' suspension period which are admissible to him as per rules. Pending application, if any, also stands disposed of. No order as to costs.