IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.628/2002 Reserved on.25.5.2007 Decided on.14.6.2007 Kiran Agarwal …Petitioner. Versus High Court of H.P. …Respondent Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1.Yes. For the petitioner : In person For the respondent No.1 Mr. Bipin Chand Negi, Advocate. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that a memorandum was issued to the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on 4th November, 1996. She was put under suspension on 4.4.1997. The Inquiry Officer had come to the conclusion in his report dated March 27, 1997 that all the three charges (articles) stand conclusively proved against the petitioner. In sequel to the inquiry report dated 27th March, 1997 vide notification dated 29th April, 1997, she was dismissed from the H.P. Higher Judicial Service with immediate effect. She had filed CWP No. 527/1997 in this Court. The CWP No. 527 of 1997 was partly allowed by this Court on July, 2001 and the operative portion of the judgment is reproduced as under: “For the reasons aforesaid, the petition deserves to be partly allowed. The enquiry initiated against the petitioner is held to 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 be legal, valid and in accordance with law, so also the findings arrived at by the Inquiry Authority do not call for any interference and the charges levelled against the petitioner are held proved but an order of penalty of dismissal passed against the petitioner is disproportionate, excessively high and unreasonable. The order of penalty is, therefore, set aside and the matter is sent back to the Disciplinary Authority for reconsideration and to take appropriate decision in accordance with law. In the light of the decisions of the Hon’ble Supreme Court, as also the observations made in the earlier part of the judgment. The petition is accordingly partly allowed. In the facts and circumstances of the case, there shall be no order as to costs.” In sequel to the judgment, order was issued on 9th August, 2001 and the relevant portion of the same is reproduced as under: “Now, therefore, in view of the provisions of Rule 10 (4) of the CCS (CCA) Rules, 1965, it is hereby notified that the order of suspension of the said Smt. Kiran Agarwal as notified vide order No.HHC/GAZ/14-30/74-II-5530-5537, dated 4.4.1997, shall be deemed to have continued in force on and from the date of the aforesaid order of dismissal, i.e. 29.7.1997, and shall remain in force until further orders. The Headquarters of the said Smt. Kiran Agarwal during the deemed suspension shall remain the same as fixed, vide initial order of suspension dated 4.4.1997.” Thereafter vide notification dated 27th September, 2001; the penalty of dismissal was substituted by the penalty of compulsory retirement from the H.P. Higher Judicial Service (Annexure P-15). Respondent had issued office order dated February 8, 2002 and the operative portion of the same is reproduced below: 3 “The subsistence allowance as fixed above shall be paid to Smt. Kiran Agarwal for the period from 5.4.1997 to 9.8.2001 by the office of the District and Sessions judge, Hamirpur. Thereafter, the subsistence allowance as referred to above for the period from 10.8.2001 to 27.9.2001 along with capital allowance and House Rent allowance as admissible under the rules shall be paid to Smt. Kiran Agarwal, by the High Court of H.P. as her headquarter was fixed at Shimla in place of Hamirpur, vide this Registry order No.HHC/GAZ/14-30/74-II- 2160 dated 10/13.8.2001.” She was also called upon by the respondent to send the requisite forms for processing the pension case. The respondent had filed reply to the writ petition and the petitioner had also filed rejoinder to the same. The petitioner had appeared in person. She had submitted that after the order of dismissal was set aside by this Court on 30th September, 2001 in CWP No. 527/1997, she could not be put under suspension with effect from 4.4.1997 as per Annexure P-3 dated August 9, 2007. She had also contended that the Annexures P-1 and P-2 were not in accordance with law. Mr. Bipin Chand Negi, Advocate appearing on behalf of the respondent had supported the orders impugned in the writ petition. I have heard the parties and perused the record. For better appreciation of the rival submissions of the parties it will be pertinent to reproduce sub rule 4 of Rule 10 of the CCS (CCS) Rules, 1965 as under: “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, 4 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: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.” The contention of the petitioner on the basis of sub Rule 4 of Rule 10 of the CCS (CCA) Rules, 1972 is that the same could not have been invoked by the respondent since the conditions stipulated therein were not applicable to her more particularly when no further inquiry was to be held against her. Mr. Bipin Chand Negi, Advocate had contended that since the Division Bench of this Court had only held the penalty imposed upon the petitioner disproportionate and had directed to re-consider the same, sub Rule (4) of Rule 10 of the CCS (CCA) Rules, 1965 was applicable and the decision to put her under suspension with effect from 4.4.1997 was valid. The employer must always be guided by the principles laid down in Chapter 3 – General Instructions of Swamy’s Compilation of CCS (CCA) Rules which are reproduced as under: “(1) Guiding Principles for placing a Government servant under suspension. – It has been decided that public interest should be the guiding factor in deciding to place a Government servant under suspension, and the Disciplinary Authority should have the discretion to decide this taking all facts into account. However, 5 the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government servant under suspension. These are only intended for guidance and should not be taken as mandatory:- (i) Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g., apprehended tampering with witnesses or documents); (ii) Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working; (iii) Where the continuance in office of the Government servant will be against the wider public interest other than those covered by (i) and (ii) such as there is a public scandal; and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption; (iv) Where allegations have been made against the Government servant and the preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or his being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service. NOTE(a).- In the first three circumstances, the disciplinary authority may exercise his discretion to place a Government 6 servant under suspension even when the case is under investigation and before a prima facie case is made out. NOTE (b).- Certain types of misdemeanour where suspension may be desirable in the four circumstances mentioned, are indicated below- (i) any offence or conduct involving moral turpitude; (ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official power for personal gain. (iii) Serious negligence and dereliction of duty resulting in considerable loss to Government; (iv) Desertion of duty; (v) Refusal or deliberate failure to carry out written orders of superior officers. In respect of the type of misdemeanour specified in sub-clauses (iii), (iv) and (v), discretion has to be exercised with care. [G.I.’M.H.A.’ Letter No. 43/56/64-AVD, dated the 22nd October, 1964.] The circumstances in which an employee will be deemed to be under suspension along with procedure have been laid down in Chapter-2 (Deemed suspension) of Swamy’s Compliation of CCS (CCA) Rules as under: “7. Deemed suspension (a) While in service.- 1. Under Rule 10 (2) CCS (CCA) Rules, 1965, a Government servant shall be deemed to have been placed under suspension by an order of appointing authority in the following circumstances:- (a) If he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty eight hours. 7 Cases of detention in custody under any law providing for preventive detention or as a result of proceedings for arrest for debt will also fall in this category. (b) If in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours. 2. If a Government servant who has been detailed for a period exceeding forty eight hours is later on released on bail, such release will not affect the deemed suspension which will continue to be in force until revoked by the competent authority. 3. The period of forty-eight hours referred to in Para 1 category (b) above will be computed from the commencement of imprisonment after the conviction and intermittent periods of imprisonment, if any, will be taken into account as provided in Explanation under Rule 10 (2). 4. A duty has been cast on the Government servant who is arrested for any reason to intimate promptly the fact of his arrest and the circumstances connected therewith to his official superior even though he might have been released on bail subsequently. Failure to do so will be regarded as suppression of material information rendering him liable to disciplinary action on this ground alone, apart from the action that may be called for on the outcome of the Police case against him. 5. Cases of suspension during pendency of criminal proceedings or proceeding for arrest for debt or during detention under a law providing for preventive detention will be dealt with in the following manner:- (a) A Government servant who is To be deemed to be 8 detained in custody under any law providing for preventive detention or as a result of a proceeding either on criminal charge or for his arrest for debt-if the period of detention exceeds forty eight hours. under suspension under Rule 10 (2). (b) A Government servant who is undergoing a sentence of imprisonment-pending decision on the disciplinary action to be taken against him. To be deemed to be under suspension under Rule 10 (2). (c) A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g. a person released on bail) – if the charge is connected with the official position of the Government servant or involved moral turpitude on his part. To be placed under suspension under Clause (b) of Rule 10 (1), unless there are exceptional reasons for not adopting this course. (d) A Government servant against whom a proceeding has been taken for arrest for debt but who is not actually detained in custody. To be placed under suspension under Clause (a) of Rule 10 (1), only if a disciplinary proceeding against him is contemplated. (b) While not in service.- 6. Under Rule 10 (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 revision and the case is remitted by the appellate or revising authority for further enquiry or action or with any other direction, the order of suspension will be deemed to 9 have been continued in force on and from the date of original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. 7. Similarly, 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, recourse can be had to Rule 10 (4). It has been clarified that the further enquiry contemplated in this rule should not be ordered except in a case where the penalty of dismissal, removal or compulsory retirement has been set aside by a Court of Law on technical grounds without going into the merits of the case or when fresh material has come to light which was not before the Court. A further enquiry into the charges which have not been examined by the Court can, however, be ordered by the departmental authorities under this rule, depending on the facts and circumstances of each case. 8. It may be noted that according to the wording of sub-rules (3) and (4) of Rule 10, while in the case failing under the earlier sub-rule, the Government servant should have been under suspension before dismissal, etc; no such condition has been prescribed for a case falling under the latter sub-rule. 9. Under the said rule, in such a case 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 continue to remain under suspension until further orders. 10. Though in all the above type of cases suspension is deemed to have continued automatically, issue of formal order of suspension is necessary, indicating the specific rule under 10 which the order is issued, after satisfying that the conditions stipulated therein are fulfilled. 11. The Supreme Court has held that the order in terms of Rule 10 (2) is not restricted in its point of duration or efficacy to the actual period of detention only. It continues to be operative unless modified or revoked under sub-rule (5) (C) as provided in sub-rule 5 (a).” It is evident from the instructions quoted above that the employee should be put under suspension if the conditions contained therein are fulfilled. Sub –para 10 of para 7 provides that the issue of formal order of suspension is necessary indicating the specific rule under which the order is issued, after satisfying that the conditions stipulated therein are fulfilled. The close scrutiny of Annexure P-3 does not disclose due application of mind before its issuance though the relevant provisions of sub rule (4) of Rule 10 of the CCS (CCA) Rules, 1965 has been quoted. The Annexure P-3 should have been a speaking order reflecting due application of mind more particularly when the order of dismissal has been set aside by this Court. The question whether the employee after setting aside the penalty imposed upon him will be deemed to be under suspension or not has been considered by the Supreme Court in H.L. Mehra V. Union of India and others, AIR 1974 SC 1281 as under: “The suspension of the appellant was originally made under an order dated 11th April, 1963 in exercise of the power conferred under sub rule (1) of Rule 12 of the CCS (CCA) Rules, 1957 and it was this suspension which was purported to be continued by the impugned order under sub-rule (5) (b) of Rule 10 of the CCS (CCA) Rules, 1965. There was some controversy before the Delhi High Court as to which set of Rules would be applicable for continuing the suspension of 11 the appellant at the date when the impugned order was passed. The appellant contended that the Rules applicable would be the CCS (CCA) Rules 1957 and the impugned order made under the CCS (CCA) Rules, 1965 was, therefore, bad. But this contention was rejected by the Delhi High Court and rightly because R. 34 of the CCS (CCA) Rules, 1965, which repeals the CCS (CCA) Rules, 1957 provides in Proviso (b) for the application of the CCS (CCA) Rules, 1965 to pending proceedings. This being the clear position, the learned counsel for the appellant conceded that the validity of the impugned order continuing the suspension of the appellant would have to be judged by reference to the CCS (CCA) Rules, 1965. Now the only provision in the CCS (CCA) Rules, 1965 which deals with suspension is Rule 10. It would be convenient at this stage to refer to the relevant provisions of that rule: “10. (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…. (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 e is remitted for further inquiry or action or with any other directions, the order of the suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or 12 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. (b) Where a Government servant is suspended or it 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.” Since the impugned order continuing the suspension of the appellant is purported to be made under sub-rule (5) (b) of Rule 10, we may first examine whether it is justified on the 13 terms of that sub-rule. Sub-rule (5) (b) postulates that a Government servant is suspended or deemed to have been suspended – this latter contingency would arise where a case falls within sub rule (2) – and during the continuance of his suspension “any other disciplinary proceedings” is commenced against him and provides that in such a case, a direction may be given that he shall continue under suspension until the termination of such disciplinary proceeding. The words “Government servant shall continue to be under suspension” in the juxtaposition of the opening clause clearly suggest that the basic condition for the applicability of sub-rule (5) (b) is that the Government servant should be under co0ntinuing suspension at the date when “any other disciplinary proceeding” is commenced against him and direction is given for continuance of the suspension. It is indeed difficult to see how a Government servant can be directed to continue to be under suspension unless he is under suspension at the time when such direction is given. There can be fresh suspension of a Government servant but we fail to see how there can be continuance of a suspension which does not exist. Two conditions must, therefore, co-exist before action can be taken under sub rule (5) (b): one is that the Government servant must be under continuing suspension and the other is that during the continuance of such suspension “any other disciplinary proceeding” should be commenced against him. Now in the present case, we will assume with the respondents that under the second part of the impugned order, a disciplinary proceeding was commenced against the appellant, though it was really a revival of the old inquiry 14 instituted under the Memorandum dated 8th March, 1965 and not the commencement of a new disciplinary proceeding. But even so, the question would still remain whether the appellant was under suspension at the date when the impugned order was made. It is only, if he was, that he could be continued under suspension under sub-rule (5) (b) of R. 10. The appellant was originally suspended under the order dated 11th April, 1963 because a case against him in respect of a criminal offence was under investigation. This was followed by the institution of a criminal case against him and in this criminal case he was convicted by the Special Judge and his conviction was confirmed by the Bombay High Court. On the basis of the judgment of the Bombay High Court confirming his conviction, he was dismissed by the President by an order dated 26th October, 1967. The argument of the appellant was that on the passing of the order of dismissal his suspension came to an end and even though the order of dismissal was subsequently set aside by the President by the first part of the impugned order, that did not have the effect of reviving the suspension and the appellant was accordingly not under suspension at the date when the impugned order was made. The respondents, on the other hand, contended that by reason of sub-rule (5) (b) of Rule 10 the order of suspension passed on 11th April, 1963 continued to remain in force despite the making of the order of dismissal and in any event, even if the suspension came to an end as a result of the passing of the order of dismissal, it was revived with retrospective effect when the order of dismissal was set aside by the President by the first part of the impugned order and, therefore, at the instant of time when the third part of the impugned order was 15 made under sub rule (5) (b) of Rule 10, the appellant was under suspension. We find there is great force in the argument of the appellant and the contention of the respondents to the contrary must be rejected. Both principle as well as precedent compel us to this conclusion. Let us first examine the question on principle. When an order of suspension is made against a Government servant pending an enquiry into his conduct, the relationship of master and servant does not come to an end. What the Government, as master, does in such a case is merely to suspend the Government servant from performing the duties of his office. The Government issues a direction forbidding the Government servant from doing the work which he was required to do under the terms of the contract of service or the statute or rules governing his conditions of service, at the same time keeping in force the relationship of master and servant. In other words, to quote Hegde, J.’ from V.P. Gindroniya v.