Harbhajan Singh vs Indore Municipal Corporation

The petitioner before this Court Superintending Engineer, Indore Municipal Corporation, who is under suspension, has filed this present petition for

issuance of an appropriate writ, order or direction, directing the respondent to treat him on duty for all purposes including payment of salary,

increments, posting commensurate to its state.

The facts of the case reveal the petitioner was placed under suspension on 23.09.2012 by the competent disciplinary authority in exercise of power

contained under Rule 9 of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. The undisputed fact is that the petitioner himself has

lodged a First Information Report and a crime has been registered at Crime No.405/2019 against certain persons who were allegedly blackmailing the

petitioner.

The petitioner's further contention is that after expiry of 45 days, no charge-sheet has been issued and the suspension order has not been revoked nor

the suspension order has been extended by the respondent. It has been stated that the petitioner is the complainant in the criminal case and now he is

being treated as an accused by the respondent. A prayer has been made for revocation of suspension on expiry of 45 days and payment of salary as

well as consequential benefits.

A reply has been filed in the matter by the Indore Municipal Corporation and the respondent has admitted the factum of placing the petitioner under

suspension on 23.09.2019. It has also been stated that no charge-sheet has been issued within a period of 45 days nor any charge-sheet has been

issued so far.

It has been argued by Shri Rishi Tiwari that suspension is not a punishment and merely because charge-sheet has not been issued within 45 / 90 days,

the suspension order does not become a nullity in light of the judgment delivered by Division Bench of Delhi High Court in the case of Government of

NCT of Delhi v/s Dr. Rishi Anand reported in 2017 SCC OnLine Del 10506.

This Court has carefully gone through the aforesaid case. In the aforesaid case, Dr. Rishi Anand, the employee therein, was placed under suspension

vide order dated 12.07.2016 in contemplation of disciplinary proceeding under Rule 10 (1) of the CCS (CCA) Rules, 1965, his suspension was

extended vide order dated 27.09.2016 w.e.f. 10.10.2016 to 07.04.2017 pursuant to the recommendation of the Review Committee. The charge-sheet

was issued on 01.03.2017.The Government Servant, in those circumstances, preferred an original application before the Central Administrative

Tribunal i.e. O.A. No.1785/2017 and took a plea that his suspension, after 90 days, is illegal as no charge-sheet was issued within 90 days and in those

circumstances, the judgment has been delivered by the Division Bench of Delhi High Court. Whereas, in the present case, the facts are altogether

distinguishable.

In the present case, the petitioner was placed under suspension by an order dated 23.09.2019. The order of suspension has not been extended by the

disciplinary authority till date, no charge-sheet has been issued by the disciplinary authority till date and the petitioner is still under suspension.

Rule 9 of the M.P. Civil Services (Classification, Control & Appeal) Rules reads as under:-

“9. (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the

Governor by general or special order, may place a Government servant under suspension-

(a) where a disciplinary proceeding against him is contemplated or is pending, or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry of trial :

[Provided that a Government servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude

is filed against him :]

Provided further that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the

appointing authority the circumstances in which the order was made.

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority-

(a) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty-eight hours;

(b) with effect from the date of his conviction, if, in the event of conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and

is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

Explanation. - The period of forty- eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the

conviction and for this purpose, intermittent periods of imprisonment,, if any, shall be taken into account.

[(2-a) Where a Government servant is placed under suspension under clause (a) of sub-rule (1), the order of suspension shall contain the reasons for making such

order and where it is proposed to hold an enquiry against such Government servant under Rule 14, a copy of the articles of charges, the statement of imputations of

misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained shall be issued or caused to be

issued by the disciplinary authority to such Government servant as required by sub-rule (4) of Rule 14, within a period of 45 days from the date of order of

suspension :

Provided that where the disciplinary authority is the [State Government or the High Court], the copy of charges and other documents mentioned above shall be

issued or caused to be issued to such Government servant within a period of 90 days from the date of order of suspension.]

(2-b) Where the disciplinary authority fails to issue to the Government servant, a copy of the charges and other documents referred to in sub-rule (2-a) within the

period of 45 days, the disciplinary authority shall, before expiry of the said period, obtain orders in writing of the State Government for extension of the said period of

suspension :

Provided that the period of suspension shall in no case be enhanced beyond a period of 90 days from the date of the order of suspension.

(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension, is set aside in appeal or on

review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have

continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant, is set aside or declared or rendered

void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further

inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be

deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and

shall continue to remain under suspension until further orders.

(5)(a) An order of suspension made or deemed to have been made under this rule, shall continue to remain in force until it is modified or revoked by the authority

competent to do so :

[Provided that the order of suspension shall stand revoked on expiry of the period of forty-five days from tire date of order of suspension in case a copy of charges

and other documents referred to in sub-rule (2-a) are not issued to such Government servant by the disciplinary authority (if it is not the State Government) without

obtaining the orders of the State Government for extension of the period for issue of the said documents, as required under sub-rule (2-b) :

Provided further that the order of suspension shall stand revoked on expiry of the period of 90 days from the date of order of suspension, in case the copy of charges

and other documents referred to in sub-rule (2-a) are not issued to such Government servant.]

[(b) In respect of a Government servant, whose orders of suspension stand revoked in accordance with the first or second proviso of clause (a) the authority

competent may, if it considers expedient so to do, place him under suspension after a copy of charges and other documents, as required by sub-rule (4) of Rule 14,

have been issued to him.]

[(c) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any

other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for

reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such

proceedings.

[(d)] An order of suspension made or deemed to have been made under this Rule may at any time be modified or revoked by the authority which made or is deemed to

have made the order or by any authority to which that authority is subordinate :]

[Provided that an order of suspension made under the first proviso to sub-rule (1) of Rule 9 shall not be revoked except by an order of the Government made for

reasons to be recorded.â€​

The aforesaid statutory provision of law makes it very clear that in case, an employee is placed under suspension by the disciplinary authority, a

charge-sheet has to be issued within a period of 45 days. If the order of suspension is passed by the State Government then charge-sheet has to be

issued within 90 days. There is a power also to extend the period of suspension. The aforesaid rule also provides for revocation of suspension, in case,

charge-sheet is not issued within a period of 45 / 90 days, and therefore, the present case, as the charge-sheet has not been issued within 45 days by

the competent disciplinary authority, the suspension order stands revoked on expiry of 45 days from the date of issuance of charge-sheet.

A similar view has been take by co-ordinate Bench of this Court in W.P. No.3230/2016 (Dr. Amar Singh Vishnar v/s Public Health Department)

decided on 04.05.2016. Otherwise also, the statutory provisions on the subject are very clear, as the charge-sheet was not issued within a period of 45

days, the order of suspension has become illegal non-est in law after expiry of 45 days.

The Hon'ble Supreme Court in the case of Union of India & Another v/s Ashok Kumar Agrawal (Civil Appeal No.9454/2013) decided on 23.11.2013

in paragraph â€" 26 has held as under:-

“26. In Union of India & Ors. v. Dipak Mali, AIR 2010 SC 336, this court dealt with the provisions of Rules 1965 and the power of renewal and extension of the

suspension order. The court 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. Subsequent review or extension thereof is not permissible for the reason that earlier order had become invalid after

expiry of the original period of 90 days or extended period of 180 days.â€​

In light of the aforesaid judgment, as there was no extension order passed by the respondent extending the suspension, subsequent review of extension

thereof is not permissible for the reason that earlier order has become invalid after expiry of original period of 45 days. In the present case, there was

not extension at all, and therefore, the order has become non-est in law after expiry of 45 days.

Resultantly, the present Writ petition stands allowed with the following directions:-

(a) The petitioner shall be entitled for subsistence allowance for the period w.e.f. 23.09.2019 up to 45 days. In respect of the period after 45 days from the date of

suspension, the petitioner shall be entitled for full salary

(b) In case, the department serves a charge-sheet and proceeds ahead with the Departmental Enquiry, the payment of salary for the period w.e.f. 23.09.2019 up to 45

days shall depend upon the final outcome of the Departmental Enquiry.

(c) The respondent is directed to issue appropriate order of posting to the petitioner keeping in view the post which he is holding. The exercise of

payment of salary (difference of salary) be concluded within a period of 60 days from the date of receipt of certified copy of this order.

Certified copy, as per rules.