Suspension not reviewed for more than 5 years. validity?!
velmurugan
(Querist) 11 August 2017
This query is : Resolved
Dear learned experts,
I am a central govt employee.I was suspended in the year 2011 because of criminal case (RC) registered under prevention of Corruption act by CBI, subsequent to a raid in my office. I was detained in custody and came out on bail in 5 days. The initial order of suspension was not reviewed with in 90 days as per CCS (CC&A) rules 1965. There were no subsequent and periodical reviews at every 180 days. My subsistence allowance of initial 50% of leave salary was never enhanced till date, as there were no periodical reviews, till date. I have not received any renewed orders for extention of my suspention,too.ll.
Simply put, my Ministry has simply forgotten me and my file. In the meanwhile, CBI (ACB) have filled charge sheets in the year 2012 itself. Charges have not yet been framed in CBI criminal cases yet. There were no simultaneous departmental proceedings by my ministry so far. It has been almost 5 and half years since I was arrested and was placed under suspension.
I have sent 2 representations/appeals in the last two months to my appellate authority for revocation of my suspension , citing also that my prolonged suspension without any reviews whatsoever, so far, is not technically valid.
Till date, I have not heard from my ministry. My ministry is not taking any action and they are simply passing the buck?
I request the learned experts here to kindly guide me, what course of action can I resort to, next, so that i may get reinstated and my suspension revoked.!
Thanking you.,
Guest
(Expert) 11 August 2017
Were you placed under suspension after arrest and detention in custody by the ACB?
velmurugan
(Querist) 11 August 2017
Sir,
I was arrested on 1/10/2011 and my suspension order was dated 03/10/2011, which was served by hand to me personally after I came out of bail on 7/10/2011. ( as I was then staying in office quarters right next to my office)
My subsistence allowance (in the form of cheque) is sent to my residence each month and the declaration (that i am not doing any other work) is signed by me and sent to my local office from my residence. The Ministry clearly knows that i am under bail.
In my Original suspension order quotes both Rule 10 (1) (Criminal charge) and Rule 10 (2) ( detention in police custody beyond 48hours) as reasons for placing me under suspension. On my side too,I intimated subsequently my arrest to my next higher authority as per procedure which was never acknowledged. Sanction for prosecution is given by competent authority etc. It may take another 2 to 3 years for even framing of charges to happen in my case.
I have given all the facts now sir ! Pls guide me what should i do now.?
P.S: I have immensely benefited earlier from you and Mr.Sudhir Kumar in understanding many aspects of my criminal case and how to defend it. ( I read both yours advice and guidance to people who are similarly placed like me too). Hence I thank both of you profusely for your clear and correct guidance all the time, to one and all !
velmurugan
(Querist) 11 August 2017
I have given all the facts now and awaiting for your guidance,Sir!
dr g balakrishnan
(Expert) 11 August 2017
you can move a writ under art 226 r/w 227 seeking to quash the case for the case has been just going on and on and your right under art 21 is in jeopardy.
Guest
(Expert) 11 August 2017
Your case pertains to the deemed suspension on account of your detention and custody by the ACB. Such suspension is not reviewed like suspension made in departmental proceedings. Your suspension can be revoked if you can bring NOC from the ACB, provided the case is not still under investigation by the ACB.
Further, subsistence allowance was to be revised after 3 months of suspension up to 75% of your pay, if delay in investigation was not attributed on your part. You may take up the cases at two levels separately, (1) for enhancement of your subsistence allowance by the disciplinary authority, and (2) requesting the ACB to issue NOC for revocation of suspension.
I do not contribute to the views of Dr. G. Balakrishnan, as until the corruption case under the PC Act is decided by the court, department is neither bound to take any favourable action, except revocation of your suspension on NOC by the ACB, nor the corruption case be quashed without trial.
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velmurugan
(Querist) 12 August 2017
Sir.,
Even in the case of deemed suspension, is it not mandatory to review the suspension in 90 days (90 days from the date of my release on bail) by disciplinary authority.? My Ministry have simply forgotten my case for all these years, with no periodical reviews at all. My case is not the one of continued detention.
As per CCS (CC&A) rules 1965, is it not that my suspension is technically valid., as there was no review all these 5 and half years?
velmurugan
(Querist) 12 August 2017
Can i go for quashing the original suspension order dated 3/10/2011? Pls guide me sir!
Guest
(Expert) 12 August 2017
Review in deemed suspension is not mandatory. That is subject to the instructions of the ACB or the court, where your case is under trial.
Nobody can debar you from wasting your time and money in filing a petition and fighting for quashing your original suspension. But not mere filing of petition, but order of the court on merits of the case is quite necessary.
velmurugan
(Querist) 12 August 2017
Dear Sir,
Thank you so much.
You are well versed in facts. I am just a learner and a layman, forced to go through rules for my own sake now. I will greatly benefit from your expert advice and will act accordingly. While thanking you for your guidance, let me say mine is not continued detention beyond 90 days. But just a weeks time. That's all. In this case, the ministry is supposed to review the suspension 90 days from the date of my release. which they have not done in this 5 and half years.
Rule 10 (Suspension) of the CCS (CCA) Rules, 1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule shall be reviewed by the competent authority on recommendation of the Review Committee constituted for the purpose. It is also being provided in the Rules that an order of suspension made or deemed to have been under sub-Rules (1) or (2) of rule 10 shall not be valid after 90 days unless it is extended after review for a further period before the expiry of 90 days. It is further being provided that extension of suspension shall not be for a period exceeding 180 days at a time.
“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 detention at the time of completion of ninety days of suspension and the ninety days period for review in such cases 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.”
Applying the above rule and taking into account that mine is not continued detention, is it not that my suspension is not technically valid?
Thank you sir for your time.
Guest
(Expert) 12 August 2017
Mr. Velmurugan
So, you were on the spree of testing the knowledge of the experts! When you know too much what was the fun in wasting my precious time by asking such questions, as if you were actually in the need of some help, which you didn't actually had?
Before raising finger on my discussion, you could better have read DOPT's OM, dated 12th July, 2007, pertaining to the review of suspension. Further, when you have raised doubt on my statement, a pertinent question arises, DID YOU ANYWHERE MENTION ON WHICH DATE THE FACT OF YOUR RELEASE FROM DETENTION WAS INTIMATED BY THE ACB TO THE APPOINTING AUTHORITY?
In fact, your present post clearly indicates that you have not been facing any such problem, as you pretended, but you wanted a confirmed answer to some of your academic exercise.
Anyway, best of luck!
velmurugan
(Querist) 12 August 2017
Sir,
My problem is genuine and thank you so much for your valuable replies.
Thank you once again. sorry if i sounded impolite, any where in my discussions.
Mr.Sudhir Kumar and You are two experts I admire the most in this forum, for you have given appropriate advice and guidance to me, as you were always to others.
Thank you once again.
Sudhir Kumar, Advocate
(Expert) 13 August 2017
pleae read some provisions of rule 10
(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.”
dr g balakrishnan
(Expert) 13 August 2017
fact is after 90 days , if u r affected u can seek relief under art 14 r/w Art 21r;w art226 r/w art 227.that way Justice Krishna iyer in the case of pension said it is your property , so too employment too is yr property that cannot be denied ref L chandrakumar v UOI case where it that case really taught a lesson to government.
dr g balakrishnan
(Expert) 13 August 2017
no statute can take you for granted if it violates the fundamental rights, 90 days period is given to the suspending authority but he cannot exceed the limitation if he does he loses his prosecution mechanics, every thing depends on how your advocacy goes - see in a corruption case in MP DA case of a govt servant, trial court and the high court worked on non prosecuted issue and computed the DA that vitiated the proceedings of the courts hon SC set aside their judgements. Art is advocacy what to use what not to use while lawyering a matter.
dr g balakrishnan
(Expert) 13 August 2017
today service law is misused by government obvious issue - in an MTNL suspension matter in Mumbai i made the suspension is obviously misused tool and how i proved in my notice o MTNL mumbai but yet it held tightly that misrule, so when at CAT proceedings it was vindicated, then that person full pension was granted.
dr g balakrishnan
(Expert) 13 August 2017
Always personnel departments called so called HRD violates the right of any employee today.
dr g balakrishnan
(Expert) 13 August 2017
in fact you cannot be sent to jail without deciding in a court of law; so u have every right to seek liquidated damages under law or torts..that way you can seek high court writ intervention, as suspension did not get any logical conclusion as such
velmurugan
(Querist) 13 August 2017
Thank you sirs for your time and replies.
velmurugan
(Querist) 13 August 2017
@ Sudhir Kumar sir., Thank you so much for your kind reply and guidance....I understood what course of action i should take. Thank you once again sir!.
Guest
(Expert) 13 August 2017
Any advice on reading between the lines may not help the querist in any way. It is not the order or non-review of suspension by the MTNL, but the need is for the remedy against the main Rule of suspension or the Government of India's Decision, dated 12th July, 2007 there under.
The Government of India's Decision, dated 12th July, 2007, lays stress that, "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.” In any criminal case, the hands of the disciplinary authority get bound and are always subject to the actions/ directions of the ACB/CBI and the court of law.
The author of the problem has adequately been made aware of the fact as to what actually the remedy required in his case.
However, if the Author prefers to adopt only hit and trial method by reading between the lines, he is at liberty to do so to waste another couple of years in seeking his reinstatement in service.
velmurugan
(Querist) 13 August 2017
Thank you sir,
https://indiankanoon.org/doc/648495/
http://ghconline.gov.in/Judgment/WPC21702014.pdf
I was just looking various possibilities of getting myself revoked. That's all. As you advised, i am not going for any hit and trial at my own expense. Hence i weigh the pros and cons of all methods.
Thank you so much for your time and guidance.
velmurugan
(Querist) 13 August 2017
“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.”
But what is the provision under sub rule 7 of 10,
(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.”
Hence only if Suspension(deemed or otherwise) is reviewed periodically (except continuous detention) as per the provision of sub rule 7 of 10, sub rule 5 of 10 operates. i.e The 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.”
This is what i get to make out from the amendment and G.O.I decision dated 12, July 2007.
Thank you once again for your help. Sir!
