SESSION OVERVIEW - Comptroller and Auditor …rtishillong.cag.gov.in/stm/CAI/Suspension.doc · Web view1.1 Suspension of a Government servant from service which, though only one of

Indian Audit and Accounts DepartmentCourseware on Common Administrative Issues, Reservation Rosters, Vigilance and Disciplinary ProceedingsSession 5.3 and 5.4: Suspension - Meaning, Purpose and relevant Rules.

SESSION OVERVIEW

Suspension is an administrative action. It is not a recognised penalty but it leaves a deep stigma on the Government servant’s entire career, even though he may be exonerated afterwards. Suspension in Government service is ordered as a deterrent to exhibit the firm determination of the Government to root out corruption or other grave misconduct. It is a primary step to enforce discipline during departmental inquiries by keeping the Government servant away from access to official records and official witnesses. A thorough understanding of suspension rules and their application is essential apply in the cases of delinquent officials and also to avoid hardship to the suspended employee. The session aims, by participatory and stimulating discussion, to familiarize the participants with the various provisions relating to the subject.

LEARNING OBJECTIVE

At the end of the session the participants will be exposed to practical applications of various rules of suspension and the Government of India’s orders, decision, and instructions on the subject.

SUSPENSION

A. GENERAL OVERVIEW

1. Meaning

1.1 Suspension of a Government servant from service which, though only one of the many topics dealt with

in the CCS(CCA) Rules, 1965, is nevertheless a very important and distinct topic by itself. The related regulations are contained in Rule 10 in Part IV, ibid.

1.2 Suspension has been described as state of being temporarily debarred from a function or privilege; temporary deprivation of one’s office / position. It is an executive action whereby a Government servant is prevented form exercising the powers discharging the duties of his office temporarily, pending final action being taken against him for acts of grave indiscipline, delinquency, misdemeanour etc. It is a tool in the hands of the Government to root out corruption or other grave misconduct.

1.3 When allegations of serious nature are received against a Government servant and it is decided to initiate enquiries into such allegations, the officer concerned can be suspended as a first step even before any charges are framed against him.

1.4 The suspended Government servant continues to remain bound to follow the lawful directions of his superiors during the period of suspension. He continues to be the subject of the same discipline and penalties and the Conduct Rules continue to apply to him. During suspension he cannot engage himself in any other employment, business, profession or vocation.

1.5 The suspended official retains a lien in the permanent post held by him at the time of suspension. He does not draw his salary during suspension as he

Note 5.3 & 5.4 514


does not perform the duty but he is paid subsistence allowance.

2. Right of Employer

2.1 The employer has every right to pass an order of suspension pending an inquiry ( R.P. Kapur, SC 1969). It is the internal power of the employer. Further, suspension can be ordered even when no inquiry is pending.

2.2 An order of suspension of a Government servant does not put an end to his service. Suspension pending departmental enquiry against a Government servant is not a punishment and does not amount to ‘reduced in rank’ in the sense the term is used in Article 311(2) of the Constitution. Thus, it is not necessary to afford reasonable opportunity to show-cause before passing the suspension order or initiating disciplinary proceedings.

3. Guiding Principles

3.1 Public interest should be the guiding factor in deciding if the Government servant be placed under suspension or not. The following circumstances may be considered appropriate to place a Government servant under suspension:-

(i) where his continuance in office will prejudice investigation, trial or any enquiry;

(ii) where his continuance in office is likely to seriously subvert discipline in the office in which he is working;

(iii) where his continuance in office will be against the wider public interest, example , Officers involved in scandals, particularly corruption;

(iv) where a preliminary enquiry reveals a prima facie case justifying criminal or departmental proceedings, which are likely to lead to conviction or dismissal, removal, or compulsory retirement from service, and

(v) where he is suspected to have engaged himself in activities prejudicial to the interest of the security of the State.

(vi) On the request received from the CBI, where a ‘trap’ has been laid to apprehend a Government servant while committing an act of corruption (receiving illegal gratification) or where on conducting a search, it is found that a government servant is in possession of disproportionate assets to the known sources of his income.

4. Suspension in special circumstances

4.1 Where a case has been registered by Police against the official under Section 304. B(1) of IPC (Dowry Death), the Government servant may also be suspended if he is arrested by the Police and shall remain under

Note 5.3 & 5.4 515


suspension irrespective of the period of detention.

4.2 If he is not arrested, he shall be placed under suspension immediately on submission of the Police Report and the report prima facie indicates that the offence has been committed.

B. TYPES OF SUSPENSION

1. Suspension

1.1 A Government servant may be place under suspension under Rule 10(1) of the CCS (CCA) Rules, 1965.

1.2 As we have already discussed in the earlier part of this session that when allegations of serious nature involving indiscipline, moral turpitude, corruption, delinquency, etc. are received against a Government servant, suspension is resorted to. The official is placed under actual suspension preventing him from attending office.

1.3 Appointing Authority or any authority to which it is subordinate of the Disciplinary Authority or such authority empowered on behalf of the President may place a Government Servant under suspension under the circumstances which will be discussed in detail in Para D-1.

2. Deemed suspension

2.1 A Government servant, under Rule 10(2), (3), (4) of the CCS(CCA) Rules is deemed to have been placed under suspension if :

i) He is detained in custody, whether criminal or

otherwise, for a period exceeding forty eight hours with effect from the date of detention.

ii) If a Government servant is convicted of an offence and is sentenced to a term of imprisonment exceeding forty eight hours- being computed from the commencement of imprisonment and including intermittent periods of imprisonment.

iii) Where a penalty of dismissal, removal or compulsory retirement is set aside in appeal, review and the case is remitted by the appellate authority for further enquiry, the order of suspension shall be deemed to have continued from the date of the original order of dismissal, removal or compulsory retirement.

iv) Where a penalty of dismissal, removal or compulsory retirement is set aside by an order of the Court and the Disciplinary Authority decides to hold further inquiry on the same allegations, the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal, removal or compulsory retirement.

2.2 The arrested Government servant as in conditions (i) & (ii) above is also

Note 5.3 & 5.4 516


duty bound to intimate the fact of his arrest and the circumstances leading thereto to his immediate superior promptly, even though he might have been released on bail subsequently. Failure to do so will render him liable to disciplinary action against him.

C. COMPETENT AUTHORITY

1. Under Rule 10(1) of the CCS(CCA) Rules, the following are the authorities competent to place a Government servant under suspension:-

1.1 The Appointing Authority as defined in Rule 2(a) of the CCS(CCA) Rules;

1.2 Any Authority to which the Appointing Authority is subordinate;

1.3 The Disciplinary Authority i.e. the Authority competent to impose any of the penalties mentioned in Rule 11 of the CCS(CCA) Rules;

1.4 Any other authority empowered in that behalf by the President by general or special order.

2. Under Proviso to Rule 10(1), if an order of suspension is made by an authority lower than the Appointing Authority, such Authority should report to the Appointing Authority the circumstances in which the order was made.

2.1 Before passing an order of suspension the authority proposing to make the order should satisfy itself that it is competent to pass such an order.2.2 In case of Government servants whose services are lent by one

department to another, the borrowing authority can place him under suspension, simultaneously informing the lending authority of the circumstances leading to the order of the suspension.

3. Under Rule 10(5) (c), the authority which made or is deemed to have made the order of suspension or any authority to which it is sub-ordinate, can revoke the order.

4. Supervisory officers working in the field organizations, located outside the Headquarters may also be specifically empowered through issue of a formal notification, in the name of the President to suspend a subordinate officer for dereliction duty. He should report to the next higher authority and unless the action is confirmed or ratified by that authority within one month, that order would be void.

D. SUSPENSION

1. When resorted to

1.1 Types of misdemeanour where suspension is desirable

(i) an offence or conduct involving moral turpitude.

(ii) misappropriation of government money, embezzlement, possession of disproportionate assets and misuse of official power or position for personal gain.

(iii) serious negligence and dereliction of duty which

Note 5.3 & 5.4 517


resulted in considerable loss to government.

(iv) desertion of duty

(v) deliberate refusal or to carry out written orders of the superior officers.

1.2 A Government servant may be placed under suspension under Rule 10(1) of the CCS(CCA) Rules when:

i) disciplinary proceedings are contemplated or pending; or

ii) a case in respect of any criminal offence is under investigation, inquiry or trial; or

iii) in the opinion of the Competent Authority the Government servant is engaged in activities prejudicial to the interest of the security of the State.

1.2 Suspension can be resorted to when, following a preliminary enquiry the Competent Authority is satisfied that a prima facie case has been made out for departmental proceedings. Framing of charges is not a condition precedent.

1.3 If proceedings have been initiated on a criminal charge but the Government servant has not actually been detained in custody (may have been released on bail), the Government servant may be placed under suspension especially if the charge is connected with the official position of the Government servant or involves moral turpitude.

1.4 As already mentioned earlier, public interest should be the guiding factor in deciding whether or not with a Government servant should be placed under suspension. Government machinery exists to serve public interest. If the Government servant is alleged to have indulged in acts of gross delinquency, moral turpitude, corruption, misuse of official powers, grave dereliction of duty etc., public interest is not being served.

1.5 Utmost caution should be exercised while placing a Government servant under suspension. Should be sparingly exercised for valid reasons only and not for extraneous considerations. The possibility of transferring the Government servant or sending him on leave should be explored.

2. When not be resorted to

2.1 In the guiding principles, discussed above, we have identified the circumstances under which suspension can be resorted to. An order of suspension should not be made in a perfunctory or in a routine and casual manner without proper regard to the guiding principles.

2.2 Suspension should not be resorted to for petty offences. It should be used sparingly with care and caution and only when it is absolutely essential.

2.3 If a Government servant remains absent from duties or overstays leave without permission , he should not be placed under suspension, instead his

Note 5.3 & 5.4 518


period of absence should be treated as dies non.

2.4 When a suspended official disappears and cannot be traced, the suspension order should be lifted and proceedings for his removal (in absentia) should be initiated.

3. Date of effect

3.1 A Government servant is deemed to have been placed under suspension by an order of the appointing authority:

(i) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise, for a period exceeding 48 hours;

(ii) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding 48 hours (period computed from the commencement of imprisonment after conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account) and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

3.2 Suspension order takes effect from the date of its communication but not from a retrospective date since he had already functioned in the post. But there is no question of forbidding him

to perform the duties or functions of his office for the period which has already passed. The order can be given a retrospective effect in case of deemed suspension and during the leave. The unexpired leave has to be cancelled.

3.3 Difficulty may arise in giving effect to the order of suspension from the date it is made if the Government servant-

(i) is stationed outside when the Competent Authority made the order;

(ii) is on tour and it may not be possible to deliver order of suspension; and

(iii) is holding charge of stores/ cash etc.

3.4 The Competent Authority should take the circumstances of each case into consideration and may direct that the order of suspension will take effect from the date of its communication to the Government servant or the date on which he relinquishes charge of stores/ cash, etc.

3.5 There shall be no difficulty in operating the suspension order with immediate effect when the officer is on leave or absent from duty without permission. It is not necessary to recall the official from leave, but he can be placed under suspension and the unexpired portion of the leave be cancelled.

3.6 Normally no leave is granted to the suspended official and he continues to hold lien on his permanent post.

Note 5.3 & 5.4 519


4. Duration

4.1 An order of suspension made or deemed to have been made under Rule 10(5) (a)

(i) remains in force until it is modified or revoked by the competent authority and

(ii) is required to be reviewed by the competent authority to modify, revoke or extend the order of suspension, 90 days from the date of the order of suspension, on the recommendation of the Review Committee constituted for the purpose (extension of suspension shall not be more than 180 days at a time).

(iii) can at any time be modified or revoked by the authority which made the suspension order or by any authority to which the first authority is subordinate.

5.6 Where a Government servant is suspended or deemed to have been suspended, and any other disciplinary proceedings is started against him during his period of suspension, the authority competent to place him under suspension may, for reasons to be recorded in writing, direct that the Government servant shall continue to be under suspension until the cessation of all such proceedings against him.

4.2 An order of suspension ceases to exist automatically from the date from which the official is dismissed, removed or compulsorily retired.

However, an express order is necessary to allow the employee to resume his duties in case he is acquitted or discharged after the court / departmental proceedings.

4.3 Suspension should not be continued beyond the minimum period for which it is essentially required.

5. Legal Position

5.1 Article 311 of the Constitution does not apply to an order of suspension; as such, a Government servant can be placed under suspension without affording an opportunity to explain the circumstance on the basis of which he is sought to be suspended.

5.2 The rule expressly provides for suspension of a Government servant for the purpose of disciplinary action.

5.3 In cases where disciplinary action is contemplated suspension is generally resorted to. This is basically to frame a deficiency free charge-sheet and for thoroughly going through the imputations made against the Government servant.

5.4 Suspension may also cause a lasting damage to the Government servant’s reputation. It is, therefore, imperative that utmost caution and circumspection is exercised in passing of suspension order.

5.5 A Government servant can be placed under suspension only by a specific order made in writing by the Competent Authority.

E. APPEAL AGAINST

Note 5.3 & 5.4 520


SUSPENSION

1. Under Rule 23 of the CCS (CCA) Rules relief is available to the Government servant by way of appeal. Therefore, a Government servant should generally know the reasons leading to his suspension.

2. Where suspension is on ground of “contemplated” Disciplinary Proceedings the reasons for suspension should be communicated to the Government servant within three months from the date of suspension.

3. The time limit of forty five days for submission of appeal will count from the date on which the reasons for suspension are communicated to the Government servant.

4. Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside in appeal or review under the CCS (CCA) Rules, 1965 and the case is passed on for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal removal or compulsory retirement and shall remain in force until further orders.

5. 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 further inquiry against him on the allegations on which 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 (no such further inquiry shall be ordered unless it is a situation where the Court has passed an order purely on technical grounds, without going into the merits of the case).

F. REVIEW OF SUSPENSION

1. An order of suspension made or deemed to have been made under Rule 10(5) (a)

(i) is required to be reviewed by the competent authority to modify, revoke or extend the order of suspension, 90 days from the date of the order of suspension, on the recommendation of the Review Committee constituted for the purpose (extension of suspension shall not be more than 180 days at a time).

2. The public servant under suspension draws subsistence allowance, for doing no work, at the cost of exchequer. It is, therefore, desirable that suspension period should not be prolonged.

2.1 It is in the inherent power of the Disciplinary Authority and also

Note 5.3 & 5.4 521


mandatory to review periodically the case of the Government servant under suspension in whose case charge-sheet has been server/ filed,

i) to see what steps can be taken to expedite the progress of the court/ trial/ departmental proceedings, and

ii) to revoke the order when in his view the continuance of suspension is not justified having regard to the circumstances of the case at any particular stage.

3. The order regarding the review of the subsistence allowance at the end of the three months gives an opportunity to review not merely the subsistence allowance, but also the substantive question of suspension itself.

G. REVOKING OF SUSPENSION

1. Under Rule 10(5)(c ) an order of suspension can be reviewed and modified or revoked at any time by the authority which made it, under the following circumstances:-

1.1 Departmental Proceedings

i) If it is decided that no formal proceedings need be drawn up for imposition of any kind of penalty.

ii) Where the final order passed is other than dismissal, removal or compulsory retirement.

iii) Where the Government servant is exonerated of the charges against him.

iv) In appeal or revision, the order is modified into one other than dismissal, removal or compulsory retirement and no further inquiry is ordered to be held.

1.2 Criminal Offence

i) In arrest and detention cases, it is decided not to file charge-sheet in the court.

ii) If appeal/ revision against acquittal in higher court fails.

iii) If acquitted in trial court and no further appeal is preferred in higher courts against the acquittal order.

2. The Government of India have decided that that the period of suspension shall be treated as duty if only minor penalty is ultimately imposed. The suspension can be said to be wholly unjustified in terms of FR 54-B and the employee should be paid full pay and allowances for the period of suspension by passing suitable orders.

[DOPT., O.M.No. 11012/15/85-Estt. (A) dated 3.12.1985.]

3. In the case of a Government servant who was deemed to have been placed under suspension due to detention in police custody erroneously or without basis and thereafter released

Note 5.3 & 5.4 522


without any prosecution having been launched. The Competent Authority at the time of revocation of suspension should pass suitable orders that the suspension was wholly unjustified and full pay and allowances should be allowed.

[DOPT., O.M. No. 11012/16085-Estt. (A) dated 10.1.1986.]

H. DURING SUSPENSION

1. Payments / Recoveries

1.1 Payment during suspension period is termed as ‘subsistence allowance’ and not pay. In view of the Fundamental Rule 53, subsistence allowance is payable at an amount equal to leave salary (though actually not on leave) which the official would have drawn if he had been on leave on half-pay. This is payable only in the first three months of suspension.

1.2 No specific order is necessary for fixation of the quantum of the subsistence allowance for the initial three months.

1.3 After three months, the subsistence allowance may be compulsorily reviewed, either by increase or decrease – by an amount but not exceeding 50% of the subsistence allowance; if in the opinion of the authority which made the suspension order, suspension has been prolonged for reasons not attributable or attributable to the Government servant as the case may be.

1.4 Review of the subsistence allowance does not necessarily demand increase or decrease, it may be

maintained same, and however, reasons may be recorded for taking such decision.

1.5 The Competent Authority may review the subsistence allowance thereafter, and may reduce or increase the amount, during the period of suspension subject to limit of 50% recording reasons for doing so.

1.6 The review order of subsistence allowance is appeal-able under Rule 23 (v) (d), (e) & (f) of the CCS(CCA) Rules; that is to say that the suspended official can lodge an appeal to the appellate authority if he is not satisfies with the increase or decrease in the subsistence allowance. The appellate authority is required under Rule 27 ibid to consider the facts and circumstances of the given case before making a reasoned order, restricting it to the maximum limit of 50%.

1.7 A Government servant under suspension is entitled to draw dearness allowance and interim relief.

1.8 A Government servant under suspension does not receive salary but can draw compensatory allowances, viz. city allowance, house rent allowance; on the basis of subsistence allowance with reference to Fundamental Rule 53(1)(b) and 54, ibid, on the basis of last pay drawn at the date of receipt of order of suspension.

1.9 Subsistence allowance is to be paid with retrospective effect from the date of orders of dismissal/ removal/ compulsory retirement in respect of deemed or continuous suspension. The law of limitation for the purpose of

Note 5.3 & 5.4 523


payment of arrears of subsistence allowance will not be invoked.

2. The following deductions should be enforced from the subsistence allowance:-

2.1 Compulsory deductions

i) Income tax, if payable;

ii) House rent and allied charges;

iii) Repayment of loans and advances;

iv) CGHS and CGEIS contributions.

2.2 Optional deductions

i) Premium due on Life policies;

ii) Amount due to credit societies;

iii) Refund of advances taken from GPF.

2.3 The following deductions should not be made from the subsistence allowance:-

i) Subscription to GPF

ii) Amount due on court attachments

iii) Recovery of loss to Government for which a Government servant is responsible.

3. Resignation

3.1 If a Government servant, under suspension, submits a resignation, the Competent Authority should examine with reference to the merits of the disciplinary case pending against him, whether it would be in the public interest to accept the same.

3.2 As suspension is resorted to only in cases of grave misconduct or delinquency, it is against the principles of discipline to accept the resignation from a Government servant placed under suspension.

3.3 There are circumstances under which the resignation of the official, placed under suspension, may be accepted; where

i) the alleged offence do not involve moral turpitude, or

ii) the quantum of evidence against him is not strong enough to justify the assumption that if departmental proceedings were continued, he would be dismissed or removed from service, or

iii) where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.

3.4 Resignation may be accepted with the prior approval of the Head of the Department in respect of Group ‘C’ & ‘D’ and that of the Minister in charge in respect of Group ‘A’ & ‘B’ Government servants.

Note 5.3 & 5.4 524


3.5 A resignation becomes effective only if it is accepted. Therefore, the Government servant can submit application for the withdrawal of resignation if it is still in the stage of consideration. However, the discretion lies with the authority to either refuse the request or allow withdrawal.

3.6 Where the resignation has become effective, the appointing authority may still allow withdrawal of resignation, if the period from the date the resignation became effective and the date of resumption of duty does not exceed ninety days. In case it exceeds the given period, sanction of the Government is necessary.

4. Promotion

4.1 As suspension is a temporary phase, a Government servant may be considered for promotion and confirmation. His suitability should be assessed at the relevant time. However, in a case where disciplinary proceedings are pending and prima facie evidence points towards conviction, the fact may be brought to the Departmental Promotion Committee.

4.2 In case of a suspended official the DPC will assess the suitability, and as the case deserves, will mark its opinion which will be kept in a sealed cover. This is also referred as ‘Sealed cover procedure’. This will be followed till the disciplinary proceedings contemplated in the case are concluded.

4.3 On conclusion of the disciplinary proceedings if the officer is

exonerated, the sealed cover(s) will be opened and he will be given his promotion with reference to the position of his seniority. However, his promotion will be notional and he will not be entitled for any arrears of pay for the period preceding the date of actual promotion.

4.4 On conclusion of the disciplinary proceedings if any penalty is imposed on the officer, the findings in the sealed cover will not be acted upon. His case will be considered in the usual course by the next DPC, having regard to the penalty imposed on him.

4.5 Procedure as above is to be followed in cases of confirmation of the officer in a given post.

5. Appearing In Departmental Exams

5.1 A Government servant under suspension is allowed to take departmental exams if he fulfills all the other technical requirement for admission to such examination.

5.2 If any punishment is imposed and after consideration of the merits of the case, it is decided to promote him, he should be promoted only after the expiry of penalty, his seniority in the higher grade, however, being reckoned on the basis of the rank obtained in the examination.

6. Retirement

6.1 A Government servant under suspension, may opt for retirement on his own accord on attaining the age or fifty five years (fifty years in case of

Note 5.3 & 5.4 525


Group ‘A’ and ‘B’ service or post) as laid down in clause (k) of Fundamental Rule 56; by giving to the appropriate authority a notice of not less than three months in writing.

6.2 In case of a Government service under suspension, the right to retire voluntarily, after completing thirty years of qualifying service, under the provisions of these rules is always subject to the prior approval of the appropriate authority.

6.3 If a Government servant under suspension attains the age of superannuation before termination of departmental or court proceedings, he will cease to draw subsistence allowance, but will be paid only provisional pension under Rule 69 of the CCS (Pension) Rules admissible on the basis of his qualifying service up to the date immediately preceding the date on which he was placed under suspension. No gratuity will, however, be paid to him until the conclusion of the proceedings and the issue of final orders.

7. Grant Of Leave

7.1 Fundamental Rule 55 prohibits the grant of leave to a Government servant under suspension.

8. Death

8.1 When a Government servant under suspension dies before the disciplinary or court proceedings instituted against him are concluded, such proceedings would terminate and abate by reason of death. The period between the date of suspension and the date of death will be treated as duty for

all purposes as provided in Fundamental Rule 54-B(2). His family will be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended.

I. EFFECT ON PENSION/ LEAVE ENCASHMENT

1. If a Government servant immediately before his retirement or death while in service having been suspended had been reinstated without forfeiture of service, the emoluments which he would have drawn had he not been suspended shall be the emoluments for the purpose of Rule 33 of the CCS(Pension) Rules, 1972 and the same shall be taken into account for determining the average emoluments under Rule 34, ibid.

1.1 This is without regard to the suspension order and the order for fixing pay and allowances during such period.

1.2 As clarified in proviso to Note 1 below Rule 34, ibid, the difference between the subsistence allowance and emoluments which would have been drawn had he not been suspended is not to be treated as increase in pay.

2. If a Government servant who, while under suspension, retires from service on attaining the age of superannuation before the termination of departmental or court proceedings, the Competent Authority may withhold whole or part of cash equivalent of earned leave.

Note 5.3 & 5.4 526


2.1 Withholding of leave encashment is done if the Competent Authority is of the view that there is a possibility of some money becoming recoverable from the official on conclusion of the proceedings.

J. REVIEW COMMITTEE

1. Review of suspension is in the inherent powers of the disciplinary authority.

1.1 The composition of the Review Committee may be as follows:-

i) The Disciplinary Authority (DA), the Appellate Authority (AA) and another officer of the level of Disciplinary/ Appellate Authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the President is not the DA or the AA.

ii) The DA and two officers of the level of the Secretary/ Additional Secretary/ Joint Secretary who are equivalent or higher in rank than the DA from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the AA is the President.

iii) Three officers of the level of Secretary/ Additional Secretary/ Joint Secretary who are higher in rank that the suspended official from the same Department/ Office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the DA is the President.

1.2 The Administrative Ministry/ Department/ Office concerned may constitute the review committees as above on a permanent basis or ad hoc basis.

2. The Review Committee may take a view regarding revocation or continuance of suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involves payment of subsistence allowance without the employee performing any useful service to the Government.

3. If the officer has been under suspension for one year without any charges being filed in a court of law or no charge-memo has been issued in a departmental inquiry, he shall ordinarily be reinstated in service without prejudice to the case against him.

K. TIME LIMIT FOR DISPOSAL OF SUSPENSION MATTERS

Note 5.3 & 5.4 527


1. Even though suspension may not be considered as a punishment, it does constitute a very great hardship for a Government servant. In fairness to him, it is essential to ensure that this period is reduced to the barest minimum.

2. In suspension cases, the investigation should be completed and a charge sheet filed in a court of competent jurisdiction in cases of prosecution within six months as a rule. In case the proceedings are expected to take more time, the suspension order should be revoked.

[G.I., M.H.A., O.M. No. 221/18/65-AVD, dated the 7th September, 1965.]

3. Every effort should be made to file the charge sheet in court or serve the charge sheet on the Government servant within three months of the date of suspension. In cases of delay, the DA should report the matter to the higher authority explaining the reasons for delay.

[ G.I, C.S. (Dept. of Per.), O.M. No. 39/39/70-Ests. (A), dated 4th February, 1971.]

4. All cases of suspension may be reviewed regularly, particularly those where officials are under suspension for more than six months. If the reports are not made in time by the competent authorities, serious notice on the lapses of such authorities should be taken as also considering making adverse entries in their annual confidential reports. This action can also be taken by the Appellate Authority against Competent Authority if suspension continues beyond six months without any reports.

[ D.G., P. & T.’S letter No. 201/43/76-Disc. II, dated 15th July, 1976.]

L. EFFECT OF SUSPENSION

1. Suspension from service has far reaching adverse effects on the employee concerned. He cannot supplement his subsistence allowance. By an order of suspension, an impression is immediately created that there has been something very serious against him and its stigma may not be totally washed away even if subsequently Government servant is exonerated of the charge.

M. CASE LAWS ON SUSPENSION

1. Once a person is acquitted of a criminal charge of lack of evidence, the employer has no option but to reinstate him and pay him for the period he was under suspension. There is no difference between ‘honourably acquitted’ and ‘not acquitted honourably’.

[Sunder Das vs. UOI & Others – CAT (New Delhi) SLJ-1990 (1) (CAT)]

2. An order of suspension is not an order imposing punishment on a person found to be guilty. It is an order against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him. Such proceedings should be completed expeditiously, in the public interest and also in the interest of the Government servant concerned. He has a right to continue in service depending upon the final outcome of the proceedings instituted against him.

Note 5.3 & 5.4 528


Failure to review the order of suspension is bad and not proper. He should not have been paid subsistence allowance at a reduced rates for an unreasonably long period.

[Supreme Court – P.L. Shah Vs. UOI & another, 1989 (2) SLJ]

3. After passing an order of suspension stating it to be ‘pending inquiry’ it should not be allowed to continue indefinitely. The authority should act with diligence in getting the inquiry completed. In the case where the charges are flimsy and the authority could not appoint an Inquiry Officer even within six months of the date of suspension, the court will be justifies in quashing the order of suspension.

[Kerala High Court – Dr. Vellayani Arjunam Vs. State of Kerala, 1988 (2) – SLJ]

4. Where the departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of minor penalty, the suspension can be said to be wholly unjustified in terms FR-54 & the employee concerned, should therefore, be paid full pay & allowances for the period of suspension by passing a suitable order.

[Mohammed Wahid vs UOI – CAT (Ahmdabad), 1989 (2)]

5. No suspension orders can be issued after retirement of the employee.

[Valliapan Vs. UOI & Others –CAT (Ernakulam) – SLJ 1990 (2) (CAT)]

SUMMARY

In this session we have discussed at length the importance of knowing the subject and also have discussed on how an authority and its assisting hands should gain a fairly good understanding of the subject. This understanding is useful to successful handling of suspension cases. It is expected that the participants will be able to apply the principles in appropriated cases.

Note 5.3 & 5.4 529

Documents

SESSION OVERVIEW - Comptroller and Auditor …rtishillong.cag.gov.in/stm/CAI/Suspension.doc · Web view1.1 Suspension of a Government servant from service which, though only one of