Mohd. Jamshed, Member (A)
1. The applicant was appointed as General Duty Medical Officer (GDMO) on 01.09.2014 under the respondents. The applicant was taken in
police/judicial custody on 12.08.2017 and an FIR No. 467 was lodged against him and his family members under Sections 304B/498A/34 IPC on
13.08.2017 in the Police Station, Shahbad Dairy, District Rohini, Delhi. The applicant was consequently placed under deemed suspension w.e.f.
12.08.2017 vide order dated 13.12.2017 and has thereafter remained under suspension. Charges were framed against the applicant by the Learned
Additional Sessions Judge-02 (North), Rohini Court, Delhi vide order dated 16.02.2019. The applicant was released from judicial custody and made a
representation on 23.12.2019 for his reinstatement and also for enhancement of his subsistence allowance from 50% to 75%. His suspension was
continued with subsequent extensions as approved by the Review Committee. His representation for grant of enhanced subsistence allowance was
rejected by the competent authority vide letter dated 30.06.2020. A Charge Memorandum was also served upon the applicant on 18.03.2021.
Applicant submitted his reply to the said Charge Memorandum on 09.04.2021.An inquiry was ordered against the applicant and the same is under
way. It is the contention of the applicant that he was placed under suspension in view of ongoing criminal case against him. He was taken under
judicial custody on 12.08.2017 and was released from judicial custody on 29.11.2019 and since then he is under suspension, which is being extended
from time to time by the respondents and his request for enhancement of subsistence allowance from 50% to 75% has been rejected. He also
contends that not only his suspension is being continued, he has also not been granted enhanced subsistence allowance and that the Charge
Memorandum issued to him is on the same charges as have been listed in the criminal proceedings. He submits that the Charge Memorandum has
been issued after a lapse of more than three years and three months instead of 90 days from the initial date of deemed suspension and thereby the
same is contrary to the extant rules and illegal.
2. The applicant has filed the present O.A. seeking the following relief(s):-
“(a) to allow the present Original Application.
(b) to quash and set-aside the impugned extension of suspensions orders dated 18.3.2020, 15.09.2020, 15.03.2021 and 09.09.2021 for further period of
180 days each w.e.f. 22.03.2020, 18.08.2020, 17.03.2021 and 13.09.2021 respectively (Annexure A-1 colly, Impugned) and consequently direct the
Respondents to treat the Applicant as on duty after 90 days, from the date of releasing from his judicial custody i.e. 28.02.2020.
(c) to quash and set aside the impugned rejection order dated 30.06.2020 whereby rejected the claim of the Applicant for payment of enhance
Subsistence allowance (Annexure A-2, Impugned) and further direct the Respondents to grant of enhance Subsistence Allowance @ of 75% as
admissible from the date immediately after 90 days, initial deemed suspension order i.e. w.e.f. 12.08.2017 till the date of realization, with arrears
thereto, along with interest @ 9% p.a. for the delayed period.
(d) to quash and set aside the entire Departmental Enquiry Proceedings are being initiated against him by issuing impugned Major Penalty Charge
Memorandum dated 18.03.2021, (1) in the wake of impending Criminal proceedings under Section 304B/498A/34 IPC lodged vide FIR No. 467 on
13.08.2017 and (2) having no legality in the eyes of law being served the same Charge Memorandum upon the Applicant after lapse of more than 3
years and 03 months instead of within 90 days from the initial dated of deemed suspension which is contrary to the Rule 10(6)(2) of CCS (CCA)
Rules, 1965 as well as law laid down by the Hon‟ble Apex Court (Annexure A-3, Impugned).
(e) That this Hon‟ble Tribunal may also be pleased to award any other or further relief which this Hon‟ble Tribunal may deem fit and proper under
the facts and circumstances of the case.â€
3. The applicant has also relied upon a number of judgments including Hon‟ble Supreme Court order dated 16.02.2015 in Ajay Kumar Chodhary Vs.
UOI & Ors. (Civil Appeal No. 1912 of 2015) and Hon‟ble High Court of Delhi order dated 27.07.2020 inD r. Mahabir Prasad Yadav Vs.
Lakshmibai College [WP(C) No.13811/2019].
4. The primary challenge of the applicant is to the continued suspension, non-issuance of charge sheet within 90 days of the suspension period and non
grant of enhanced subsistence allowance during the suspension period.
5. The respondents have filed their counter-affidavit opposing the O.A. It is submitted that the applicant was appointed as Medical Officer, DHS
Cadre (GDMO Sub cadre) vide order dated 01.09.2014. An FIR No. 467 was lodged against the applicant under Section 304B/498A/34 IPC on
13.08.2017 in the Police Station, Shahbad Dairy, District Rohini, Delhi and he was taken in judicial custody on 12.08.2017. Subsequently, on learning
about the said FIR and other complaints, a deemed suspension order was issued on 13.12.2017 to the applicant for his detention in judicial custody
w.e.f. 12.08.2017. Vide letter dated 23.12.2019, the applicant informed the respondents that he has been released from judicial custody. Accordingly,
the period of 90 days was counted w.e.f. 23.12.2019 and his suspension was reviewed by the Suspension Review Committee and the same was
extended for a further period of 180 days w.e.f. 22.03.2020. The suspension has since been continued from time to time in terms of the extant rules.
During this period, the applicant has made a representation seeking enhancement of his subsistence allowance from 50% to 75%. The same was
considered and rejected by the competent authority vide impugned order dated 30.06.2020. On receipt of the status of the criminal case and after
obtaining the details from the vigilance, a Charge Memorandum dated 18.03.2021 was issued against the applicant and the inquiry is in progress. It is
contended by the respondents that the suspension of the applicant is being reviewed from time to time, his case for enhancement of subsistence
allowance has already been considered and rejected and a Charge Memorandum has been issued to him and an inquiry is in progress providing him
reasonable opportunities following the principles of natural justice and, therefore, there is no illegality on part of the respondents in the actions being
taken against the applicant. It is also submitted that the applicant had filed Contempt Petition No. 358/2021 seeking the enhancement of his
subsistence allowance from 50% to 75%. The Tribunal considered the response of the respondents for continuing with 50% of subsistence allowance
and closed the C.P. vide order dated 12.01.2022.
6. Heard Mr. Gaya Prasad, learned counsel for the applicant and Mr. H.A. Khan, learned counsel for the respondents.
7. The applicant, who belongs to the cadre of GDMO was posted in the office of the Chief District Medical Office, Central District, Government of
NCTD, New Delhi. He was taken under judicial custody on 12.08.2017 and an FIR No. 467 was lodged against him under Sections 304B/498A/34
IPC on 13.08.2017 in the Police Station, Shahbad Dairy, District Rohini, Delhi. A complaint was also made to the respondents by one Tulsa Rani w/o
Sh. Satish Chand informing the respondents that her daughter was married to the applicant and on 12.08.2017, the applicant and his family members
have allegedly murdered her daughter due to non-payment of dowry etc. and that necessary action should be taken against the applicant. It was also
advised that the applicant was under judicial custody w.e.f. 12.08.2017 and sent to Tihar Jail on 14.08.2017 by Rohini Court. The respondents issued
deemed suspension order dated 13.12.2017 w.e.f. 12.08.2017. Subsequently, on receipt of intimation from the applicant on 23.12.2019 regarding his
release from judicial custody, the competent authority placed the applicant under suspension for a period of 180 days w.e.f. 22.03.2020 i.e. the period
of 90 days was counted from the date of the intimation of his release from the judicial custody. Since then his suspension period has been extended
from time to time by the Review Committee. The applicant continued to make representations seeking enhancement of his subsistence allowance and
arrears from 50% to 75%. The respondents considered and rejected the same vide order dated 30.06.2020 directing that he would continue to draw
subsistence allowance at the rate initially admissible to him as per FR 53(1)(ii)(a). As the applicant was alleged to have been involved in dowry related
death of his wife, the competent authority on 18.03.2021 issued a Charge Memorandum along with statement of article of charges framed against the
applicant. Statement of imputation of misconduct in support of articles of charge framed against him along with the list of documents and witnesses
was also served on the applicant. The applicant submitted his reply to the said Charge Memorandum on 09.04.2021 and disciplinary proceedings are in
progress.
8. Learned counsel for the applicant has vehemently argued primarily on two aspects; (i) regarding enhancement of subsistence allowance from 50%
to 70% and (ii) about issuance of Charge Memorandum after 90 days of suspension thereby making it illegal.
9. As far as enhancement of subsistence allowance is concerned, the applicant has relied upon FR-53(1)(ii)(a), which reads as under:-
“F.R. 53. (1) A Government servant under suspension or need to have been placed under suspension by an order of the appointing authority shall
be entitled to the following payments, namely: -
(ii) in the case of any other servant -
(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn, if he had been on leave on half
average pay or on half-pay and in addition, dearness allowance, if admissible on the basis of such leave salary:
Provided that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of suspension
shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent of subsistence allowance admissible during
the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in
writing, not directly attributable to the Government servant;
(ii) the amount of subsistence allowance, may be reduced the by a suitable amount, not exceeding 50 percent of the subsistence allowance admissible
during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be
recorded in writing, directly attributable to the Government servant.â€
A careful reading of FR-53 above makes it evident that subsistence allowance can be reduced or enhanced by the competent authority. There is no
rule, which makes it mandatory that subsistence allowance has to be necessarily increased after a certain period of suspension.
10. In the instant case, the representations of the applicant seeking enhancement of the subsistence allowance was duly considered by the competent
authority and was not agreed to. It is upto the applicant to make further representations if he is still aggrieved by non enhancement of subsistence
allowance and the respondents are well within their right to decide the same.
11. The subject matter of suspension and its extension is also well governed by not only the extant rules but also through various judgments. The
suspension order has to be issued for a period of 90 days and the same can be further extended by the Review Committee before the expiry of the
earlier period of suspension. This aspect has also been clarified through the Department of Personnel and Training O.M. dated 23.08.2016, wherein in
para-2, it is clarified as under:-
“2. In compliance of the above judgment, it has been decided that where a Government servant is placed under suspension, the order of suspension
should not extend beyond three months, if within this period the charge sheet is not served to the charged officer. As such, it should be ensured that
the charge sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a
close watch needs to be kept at all levels to ensure that charge sheets are issued in time.â€
12. Hon‟ble Apex Court and respective Hon‟ble High Courts have dealt with the aspect of the validity of the suspension if not extended unless the
same is extended after review before the expiry of the suspension period. It is also reiterated in the judgment of the Hon‟ble High Court of Delhi in
Dr. S.K. Saxena Vs. Union of India, WP(C) No. 5285/2020 dated 04.02.2021.
13. In the instant case, the suspension extension order was issued within a period of 90 days after the release of the applicant from judicial custody
and the same has been extended from time to time thereafter by the Suspension Review Committee.
14. The applicant has challenged the issue of Charge Memorandum after a lapse of three years and three months instead of 90 days from the initial
date of suspension. Reliance has been placed on the judgment dated 16.02.2015 of Hon‟ble Supreme Court in Ajay Kumar Choudhary Vs. UOI
through its Secretary & Anr. (Civil Appeal No. 1912/2015). There is no dispute that the applicant was taken in judicial custody w.e.f. 12.08.2017
and he informed of his release from judicial custody only on 23.12.2019. The order dated 13.12.2017 was issued for his deemed suspension w.e.f.
12.08.2017. Further, the respondents issued the suspension review order dated 18.03.2021, which was passed within 90 days of the information of his
release extending the suspension for a further 180 days. In this connection, the Hon‟ble High Court of Delhi inG ovt. of NCT of Delhi Vs. Dr.
Rishi Anand, [WP(C) 8134/2017 & CM No. 33423/2017 vide judgment dated 13.09.2017 has considered all aspects of issuance of charge sheet vis-
à -vis suspension period and specifically the judgment of the Hon‟ble Supreme Court in Ajay Kumar Choudhary (supra). It is the same contention
in the present case also that since the charge sheet has not been issued within 90 days from the initial date of suspension, the suspension became
illegal and could not have been continued. The Hon‟ble Court has also considered the DoP&T O.M. dated 23.08.2016 as a consequence of the
aforesaid decision of the Hon‟ble Supreme Court in Ajay Kumar Choudhary (supra). All these aspects have been duly discussed by the Hon‟ble
High Court in the above mentioned judgement in Govt. of NCT of Delhi Vs. BDr. Rishi Anand (supra). Relevant paras of this judgment covering
these aspects are as under:-
“13. It appears that before the Supreme Court rendered its decision on 16.02.2016, the charge sheet had been served on the appellant - though
from a reading of the decision it is not clear as to on what date the same was so served. This development was taken note of by the Supreme Court in
its decision. In para 22 of the decision, the Supreme Court observed:
22. So far as the facts of the present case are concerned, the appellant has now been served with a charge-sheet, and, therefore, these
directions may not be relevant to him any longer. However, if the appellant is so advised he may challenge his continued suspension in any
manner known to law, and this action of the respondents will be subject to judicial review"". (emphasis supplied)
14. Thus, even though the charge sheet had not been served on the appellant Ajay Kumar Choudhary when he initially assailed his
suspension, or even till the hearing of the appeal took place before the Supreme Court on 09.09.2014 (it was only between 09.09.2014
and the date of decision on 16.02.2015 that the charge sheet appears to have been served), the Supreme Court held that since the
charge sheet had been served on the appellant, therefore, the directions issued by it would not be relevant to his case. Despite the fact
that the appellant Ajay Kumar Choudhary had remained under suspension right from 30.09.2011, the Supreme Court did not set aside
the order of suspension since, in the meantime, Ajay Kumar Choudhary had been served with a charge sheet sometime after
09.09.2014, i.e. nearly three years after his suspension.
15. The O.M. dated 23.08.2016 and even the earlier O.M. dated 03.07.2015 issued by the DoPT (a copy whereof has been tendered in court by
counsel for the respondent) evidently have misconstrued the said decision of the Supreme Court, since the facts of the said case and the eventual
directions issued in para 22 of the said decision, appear to have escaped attention.
17. It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or
even the extended period, for myriad justifiable reasons. At the same time, there may be cases where the conduct of the government
servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitising the
environment so that he may not interfere in the proposed inquiry. On a reading of Ajay Kumar Choudhary (supra), we are of the view that
the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the government servant - before, or after
the service of the charge sheet - if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be
extended beyond three months - if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer, has stopped
short of observing that if the charge memo/ charge-sheet is not issued within three months of suspension, the suspension of the government servant
shall automatically lapse, without any further order being passed by the Government. No such consequence - of the automatic lapsing of suspension at
the expiry of three months if the charge memo/ charge-sheet is not issued during that period, has been prescribed.xxxx
18. The direction issued by the Supreme Court is that the currency of the suspension should not be extended beyond three months, if
the charge memorandum/ charge-sheet is not issued within the period of 3 months of suspension. But it does not say that if, as a matter
of fact, it is so extended it would be null and void and of no effect. The power of the competent authority to pass orders under Rule
10(6) of the CCS (CCA) Rules extending the suspension has not been extinguished by the Supreme Court. The said power can be
exercised if good reasons therefor are forthcoming.
19. The decision of the Supreme Court in Ajay Kumar Choudhary (supra) itself shows that there cannot be a hard and fast rule in this
regard. If that were so, the Supreme Court would have quashed the suspension of Ajay Kumar Choudhary. However, in view of the fact
that the charge memo had been issued to Ajay Kumar Choudhary - though after nearly three years of his initial suspension, the
Supreme Court held that the directions issued by it would not be relevant to his case.
21. Learned counsel for the respondent has argued that since the charge sheet/ charge memo was not served on the respondent within the initial 90
days of suspension, the suspension of the respondent automatically lapsed. Under Rule 10 of the CCS (CCA) Rules, there is no automatic
reinstatement of a suspended government servant upon expiry of 90 days, or the extended period of suspension if, by the date of expiry of such
suspension/ extended period of suspension, the charge sheet is not issued.xxxx
23. Thus, there is no force in the submission of the respondent that the suspension of the respondent automatically lapsed since the
charge sheet was not issued within the initial period of 90 days. Pertinently, the respondents suspension was reviewed and extended by
the government within the initial period of 90 days on 27.09.2016. Thus, the suspension of the respondent did not lapse under sub rule
(7) of Rule 10 CCS (CCA) Rules.
24. We are of the considered view that in the facts of the present case, the impugned order was certainly not called for, revoking the suspension of
the respondent. When the O.A. was preferred, the charge sheet had already been issued to the respondent on 01.03.2017. At the highest, the tribunal
could have called upon the petitioner to justify its extension by passing a reasoned order. It was not for the tribunal to step into the shoes of the
administration, and to take a decision - which only the administration can take, on the issue whether the suspension of the charged officer should
continue, or not. The jurisdiction of the tribunal is confined to examining the administrative action of the government on the well established objective
principles of judicial review and, where it considers necessary, to require the government to perform its statutory obligation to take a decision. In view
of the aforesaid, the impugned order cannot be sustained and is, accordingly, set aside.â€
15. From the above mentioned, it is evident that even if the charge sheet is not issued within the initial period of 90 days, the suspension of the
applicant would not lapse. The above mentioned judgment of the Hon‟ble High Court of Delhi has held the same view after detailed consideration of
the Hon‟ble Supreme Court judgment in Ajay Kumar Choudhary (supra).
16. In view of the above mentioned facts and circumstances and the settled law, we do not find any infirmity or illegality in the action of the
respondents in continuing the suspension of the applicant and issuance of charge sheet. His case for enhancement for subsistence allowance has
already been considered and rejected.
17. We are, therefore, of the view that the challenges and claims of the applicant on all the above mentioned are not tenable and cannot be sustained
in law. The O.A. is devoid of merit and the same is accordingly dismissed. There shall be no order as to costs.
