Samar Bhusan Sarkar VsState of Tripura and Others

S.C. Das, J.—Heard learned counsel, Mr. B. Banerjee for the petitioner and learned G.A., Mr. T. Datta Majumder for respondent No. 1 and learned senior counsel, Mr. S. Deb, assisted by learned counsel, Mr. Somik Deb for respondent Nos. 2 and 3. The matter seems to be very simple and the same is taken up for-disposal.

The petitioner, while was working as a Cashier-cum-Typist under respondent Nos. 2 and 3, was placed under suspension, contemplating a criminal proceeding on 18.03.1996. A criminal proceeding was initiated against him and he was placed under suspension for last seventeen years.

It is submitted by learned counsel, Mr. Banerjee that at no point of time the matter of suspension of the petitioner was reviewed by the authority. Once the order of suspension was passed on 18.03.1996, it was continued without any review and the petitioner is getting the subsistence allowance for last seventeen years. Since the suspension order was not reviewed as required under Rule 10 of the CCS (CC & A) Rules, 1965 (for short, Rules of 1965), the continuance of suspension was altogether illegal and wrong. Learned counsel, therefore has prayed for quashing the order of suspension dated 18.03.1996 (Annexure-1 to the writ petition). In support of his contention learned counsel has referred to the provisions of Rule 10(6 and 7) of the Rules of 1965. He has also referred to a decision of the Hon''ble Apex Court in the case of

Union of India & Ors. Vs. Dipak Mali reported in : 2010 AIR SCW 158

. In course of argument, learned counsel, Mr. Banerjee also placed on record a Memo. vide No. F. 3(22)-ard/98 dated 19.6.1998, issued by the Chief Secretary to the Government of Tripura. He has also referred Rule 53 of the Fundamental Rules in support of his contention.

Learned senior counsel, Mr. Datta Majumder has submitted that the Government has received a communication from respondent Nos. 2 and 3 that the petitioner has already been dismissed from service.

Learned senior counsel, Mr. Deb appearing for respondent Nos. 2 and 3 submits that there was a communication made to the Government for concurring the proposal regarding dismissal of the petitioner from service but no order has been passed as yet dismissing the petitioner from service. It is submitted by learned senior counsel, Mr. Deb that the petitioner is still under suspension and that there is no illegality in the continuation of the suspension order. It is further contended by Mr. Deb, learned senior counsel that the amended provision of Rule 10 of the Rules of 1965 is not applicable to the employees of the State Government since those amendments were not adopted by the State Government. In support of his contention, learned senior counsel has referred to a decision of the Division Bench of the Gauhati High Court in the case of

Kinkar Sarkar Vs. State of Tripura & Ors. reported in (2012) 4 GLR 88

. In course of his argument learned counsel, Mr. Deb has also contended that the petitioner was found guilty of the charges framed against him by the trial Court but on an appeal filed by the petitioner the Sessions Court acquitted him from the charge. An appeal has been preferred against the order of acquittal before this Court and the appeal is pending. Therefore, the criminal proceeding against the petitioner is still pending and, hence, his suspension order for last seventeen years or more as may require is justified.

In course of hearing learned counsel, Mr. Banerjee has fairly admitted that the amended provision of Rule 10 of the Rules of 1965 has not been adopted by the State Government by notification but Memo. dated 19.06.1998 issued by the Chief Secretary (copy placed on record by the learned counsel, Mr. Banerjee) clearly shows that there was a Government decision for periodical review of suspension of Government employees. The Memorandum, dated 19.06.1998, reads thus--

MEMORENDUM

Subject: Compulsory periodic review for suspension of government employees.

The rules of natural justice require that when a government servant is placed under suspension, charges against him should be framed within a reasonable period of time and a final decision taken expeditiously and suspension terminated. If suspension is unduly prolonged it, also entails infructuous expenditure to Government by way of payment of subsistence allowance without in any way utilizing his services. Therefore, it is laid down that,

i) in case involving criminal proceedings against the Government Servant every effort should be made to compete the investigations and file the charge sheet in the Court of Law with in 3 months of the date of suspension, and

ii) In case other than these pending in the Courts, the total period of suspension, viz., both in respect of investigation and disciplinary proceedings, should not ordinarily exceed Six months.

2) The first review of suspension is prescribed to be under taken at the end of 3 months from the date of suspension. Simultaneous with the review FR 53 makes it obligatory to review the subsistence allowance at the end of Three months of suspension period.

3) In exceptional cases where it is not possible to conduct this prescribed review, the matter should be recorded to the next higher authority explaining the reasons of delay. All the authorities competent to order suspension of officials are directed to strictly follow these instructions.

Sd/- illegible (V. Thulasdas) Chief Secretary to the Govt. of Tripura

Even if it is accepted that the amended provision of Rule 10 of the Rules of 1965 is not applicable to the State Government employees but the above notification shows that an administrative decision was taken by the State Government as per the above Memo. issued by the Chief Secretary, Government of Tripura that there must be a periodical review of the suspension.

Admittedly, no disciplinary proceeding was drawn up by the authority against the petitioner for the alleged misconduct, which resulted in the criminal proceeding against him. When the petitioner was found guilty by the trial Court, the respondents would proceed against the petitioner under Rule 19 of the Rules of 1965 but neither the respondents proceeded against him under Rule 19 of the Rules nor had withdrawn the suspension order. After he was acquitted from the charge by the appellate Court, the respondents would proceed against the petitioner either with a disciplinary proceeding or would withdraw the suspension order. It is quite unusual that a man has been kept under suspension for seventeen years and he has been obviously paid the subsistence allowance for no service rendered by him during the period of last seventeen yeas. The action of the respondents can in no way be supported and, therefore, I think the suspension order should be set aside at this stage irrespective of the ultimate result of the criminal proceeding, if any, pending before this Court as submitted by learned senior counsel, Mr. Deb.

Accordingly, the order of suspension dated 18.03.1996(Annexure-l to the writ petition) is set aside and quashed and the respondents are directed to allow the petitioner to render the services as before. The writ petition is accordingly allowed and disposed of.