Sh. G.L. Gupta vs Delhi Urban Shelter Improvement Board

Valmiki J Mehta, J.—In this writ petition, two reliefs are claimed by the petitioner who was an employee of the respondent and who superannuated on 31.10.2011. First relief which is claimed is the challenge to the continuation after 90 days of the suspension order dated 29.9.2010. Second relief which is claimed is for release of terminal benefits of pension, commutation of pension, gratuity and earned leave encashment alongwith interest accrued thereon. Though, the first relief which is claimed as per the relief clause in the writ petition, is the challenge to the suspension order dated 29.9.2010 itself, however what is argued before me on behalf of the petitioner is that the petitioner questions the continuation of suspension after 90 days inasmuch as no order was passed within a period of 90 days either by the review committee or by the appropriate authority extending the suspension. I have allowed the petitioner to so argue as there exists the requisite averments in the writ petition. It is argued that when the second order of suspension dated 20.6.2011 was passed, review committee had not recommended for continuing of the suspension and review committee only so recommended on the date of retirement of the petitioner vide order dated 31.10.2011.

At this stage, it would be relevant to reproduce the relevant rule pertaining to suspension with its sub-Rules and the same reads as under:-

Suspension

(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 President, 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

(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

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

Provided that, except in case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), 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.

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(5)(a) Subject to the provisions contained in sub-rule (7), 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.

(b) 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.

(c) 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.

(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.

A reference to aforesaid sub-Rules and more importantly sub-Rules (6) and (7) show that for continuation of the suspension, suspension has to be reviewed by the authority which is competent to modify or revoke the suspension before 90 days of the order of suspension, and that also there has to exist the recommendation of the review committee constituted for the purpose. In the present case, admittedly no fresh order of suspension was passed within 90 days of passing of the first order dated 29.9.2010. Therefore, the period of suspension in terms of the order dated 29.9.2010 will come to an end after 90 days of passing of the order dated 29.9.2010 viz. on 27.12.2010. A reference to the second order of suspension dated 20.6.2011 shows that admittedly there is no reference to any orders passed by the suspension review committee enabling passing of this order dated 20.6.2011. Also, no copy of the order of the suspension review committee entitling the competent authority to pass the suspension order dated 20.6.2011 has been filed before me.

The consequence of the facts as found and stated above would be that the order dated 20.6.2011 would be invalid because before passing of the order dated 20.6.2011 there had to be recommendation of the suspension review committee and admittedly the suspension review committee had not met and recommended the passing of the suspension order dated 20.6.2011. Hence, it is held that the suspension of the petitioner would expire w.e.f. 28.12.2010, and petitioner will be entitled to the consequential benefits from the respondent taking the petitioner as not under suspension w.e.f. 28.12.2010. The necessary monetary benefits be now paid to the petitioner within a period of two months from today. The payments will be made to the petitioner alongwith interest @ 5% per annum simple from the date from which the amounts became payable till the amounts are actually paid.

That takes us to the issue of entitlement of the petitioner to claim release of pension, commutation of pension, gratuity and earned leave encashment etc.

Counsel for the petitioner states that petitioner has not filed a comprehensive petition in this regard and the petitioner seeks liberty to file a fresh comprehensive petition to show the disentitlement of the respondent to withhold the monetary benefits which are claimed in this writ petition. Therefore without observing one way or the other on merits, the writ petition is dismissed as withdrawn so far as the reliefs claimed of pension, commutation of pension, gratuity and earned leave encashment are concerned reserving liberty to the petitioner to file a comprehensive petition as to the entitlement of the petitioner of the same and disentitlement of the respondent to withhold the same. Writ petition is accordingly disposed of with the aforesaid observations.