Apex Court: Currency of a suspension order should not extend beyond three months

Apex Court; Currency of a suspension order should not extend beyond three months:

>>> No employee can be indefinitely suspended; that disciplinary proceedings have to be concluded within a reasonable period.

If it was decided to conduct an Inquiry it had to be concluded “in a time bound manner”.

Even the Tribunal’s have decided that “nothing but a substitution of a judicial determination to that of the authority possessing the power, i.e., the Executive Government as to the justification or rationale to continue with the suspension”.

So far as the question of prejudicial treatment accorded to an employee is concerned, the Apex Court had also observed that:  it would be fair to make this assumption of prejudice if there is an unexplained delay in the conclusion of proceedings. (State of A.P. v. N. Radhakishan 1998 (4) SCC 154)

>>> Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration.

If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.

Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanor, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity.

Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that – “We will sell to no man, we will not deny or defer to any man either justice or right.” In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Article 12 of the Universal Declaration of Human Rights, 1948 assures that – “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. More recently, the European Convention on Human Rights in Article 6(1) promises that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time….” and in its second sub-article that “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

>>> The Supreme Court of India has time and again delivered landmark judgments that have lead to consequential and direct benefits in service matters.

 Once again the Apex Court has come to the rescue of employees and has laid down the legal principle that: Currency of a suspension order should not extend beyond three months

The legal principle laid down by the Apex Court is likely to benefit; employees of PSU’s; public sector undertakings, government banks, in addition to government employees.

>>> Service rules of various Governments give power to the competent authorities to suspend a Government employee.

E.g; CCS (CCA) Rules {The Central Civil Services (Classification, Control and Appeal) Rules, 1965}, govern employees belonging to the Central Civil Services.

Rule 10 of the CCS (CCA) Rules: has a provision; that the suspension order can be issued initially for a period of 90 days, during which period it has to be reviewed by the authority and thereafter it can be extended indefinitely for a period of 180 days at a time subject to further review within such extended period. This means that the suspension can be continued for indefinite periods of time subject to a periodical review.

As: Rule 10(1) of these Rules gives the power of suspension, in conditions contained therein.

Rule 10(2) of the aforesaid CCS (CCA) Rules deals with “deemed suspension” when a Government servant is detained in custody for a period exceeding 48 hours.

Rule 10(5)(a) : provides for continuation of the suspension until it is modified or revoked by, the authority competent, to do so.

Whereas: Rule 10(6) provides: that order of suspension shall be reviewed by the competent authority, before expiry of 90 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, and subsequent reviews shall be made before expiry of the extended period of suspension and that extension of suspension shall not be for a period exceeding 180 days at a time.

Likewise: All India Services (Discipline and Appeal) Rules, 1969, which govern IAS (Indian Administrative Service), IPS (Indian Police Service) and IFS (Indian Forest Service) officers

>>> In a landmark judgment; the Supreme Court of India has extended, the principle of right to speedy trial in a criminal case, to the service law matters.

The Apex Court has laid down that, the suspension of a Government servant, in case of for a departmental enquiry, cannot be continued beyond 90 days if charge sheet is not given on time.

The Apex Court has directed that even where the charge-sheet is served on time and the suspension is required to be extended by the competent authority, a reasoned order must be passed for the extension of the suspension.

>>> The Apex Court referred to its earlier decisions wherein the right to speedy trial in criminal cases was recognized. It observed that “(t)he legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental inquiries has been emphasized by this Court on numerous occasions.”

The Supreme Court specifically referred to the decision of a Constitution Bench in the case of Abdul Rehman Antulay v. R.S. Nayak, 1992 (1) SCC 225, wherein it had been held that the right to speedy trial is a fundamental right implicit in Article 21 of the Constitution and in which detailed directions were issued in this regard. The Supreme Court applied the legal principle evolved in the aforesaid Antulay case in service law jurisprudence and held that the impugned decision of the Delhi High Court in the present case setting aside the decision of CAT which had directed that the appellant’s suspension would not be extended beyond 90 days from 19.3.2013, could not be sustained in view of the pronouncement of the Constitution Bench in the aforesaid Antulay case.

The Supreme Court also referred to the provision contained in the Proviso to Section 167(2) of the Criminal Procedure Code, 1973, which has the effect of circumscribing the power of the Magistrate in criminal cases to authorize detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. The Supreme Court extrapolated the quintessence of the Proviso of Section 167(2) of the Cr.P.C., 1973, to moderate Suspension Orders in cases of departmental / disciplinary inquiries also. 

>>> The apex Court has come down heavily on this type of provisions which allow the competent authorities to extend the period of suspension for indefinite periods after periodical reviews.

The Supreme Court held as under:

“It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Charge sheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.”

Accordingly, the Supreme Court issued the following important directions in the matter of suspension of an employee:

“We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge sheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1912 OF 2015 (Arising out of SLP © No. 31761 of 2013

AJAY KUMAR CHOUDHARY Vs UNION OF INDIA THROUGH ITS SECRETARY & ANR..

>>> Such has been the impact of the above mentioned judgment of Apex Court that; In a stern notice to all the heads in the Central government ministries and departments, the Department of Personnel has directed that charge sheets be served within the stipulated 90 days period to officers placed under suspension in order to ensure that the suspension does not lapse by default.

Charge-sheet – Dopt Order

DoPT OM on Central Civil Services (Classification, Control and Appeal) Rules, 1965 – instructions regarding timely issue of Charge-sheet

Department of Personnel & Training has issued an OM on timely issue of Charge-sheet

F.No.11012/04/2016-Estt.(A)

OFFICE MEMORANDUM

Subject: Central Civil Services (Classification, Control and Appeal) Rules, 1965 – instructions regarding timely issue of Charge-sheet – regarding.

The undersigned is directed to refer to DoP&T’s O.M. No.11012/17/2013-Estt.A-III dated 3rd July, 2015 on the above mentioned subject and to say that in a recent case, Ajay Kumar Choudhary vs Union of India Civil Appeal No. 1912 of 2015 dated 16/02/2015, the Apex Court has directed as follows:

“14 We, therefore, direct that the currency of a Suspension Order should not extend beyond three months

>>> The impact of the above mentioned judgment of Apex Court is immediately visible in judgments delivered by high courts as well, e.g

Madras High Court

M. Karthik vs The Director on 8 August, 2016

7. On a perusal of the Judgment of the Hon'ble Supreme Court in Ajay Kumar Choudary's case [cited supra], it is crystal clear that if no charge memo/charge sheet is issued within a period of three months, an employee cannot be continued to be placed under suspension. However, if the charge memo/charge sheet is issued, then, the Department should decide about the extension of suspension.