Suspension Takes Effect From Date Of Passing Such Order, Failure To Review It In 90 Days Fatal: Gauhati High Court

The Gauhati High Court recently set aside the suspension of an engineer posted with the National Highways and Infrastructure Development Corporation Ltd. (NHIDCL) on the ground that review of the said suspension order was not done within the mandatory period of 90 days, as required under the law.

The single judge bench of Justice Sanjay Kumar Medhi observed that there is no dispute that no disciplinary proceeding was initiated by issuance of any show cause notice before expiry of the period of 90 days from the date of the suspension order.

The issue before the bench pertained to the date when an order of suspension becomes effective.

The petitioner was posted with NHIDCL on deputation. Pursuant to certain allegations in the discharge of his duties, an order dated November 01, 2022 was passed by the respondents placing the petitioner under suspension which was received by the petitioner on November 07, 2022. The review of the said order of suspension was done on February 03, 2023.

It was the contention of the petitioner that such review being done beyond the prescribed period of 90 days, the same shall not save the authorities from their responsibility which is mandatory in nature and therefore, the impugned order of suspension is required to be set aside.

The respondents contended that that though the date of the order of suspension was November 01, 2022, it was communicated only on November 07, 2022. It was submitted by the respondents that if the aforesaid date is reckoned, the review done on February 03, 2023 would be within time and therefore, there would be no violation of the law laid down.

However, the Counsel appearing for the petitioner contended that the suspension takes effect from the date of the order itself i.e., November 01, 2022 and not from the date of receipt of such order on November 07, 2022 therefore, the date for the purpose of the mandatory review within 90 days has to be reckoned as November 01, 2022.

The Court noted that decision to suspend the petitioner had acquired the form of an order on November 01, 2022 and therefore, it cannot be said that only when the said order of suspension is communicated, it becomes effective.

The Court relied upon the judgment of the Supreme Court in State of Punjab v. Khemi Ram (1969) 3 SCC 28 wherein it was held that in case of suspension, it is the date of the orders from which such a suspension would take effect.

The reliance was further placed upon the judgment of Apex Court in Ajay Kumar Choudhary v. Union of India (2015) 7 SCC 291 wherein it was held as follows:

“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.”

The Court observed that in the instant case, the said review was not done within the mandatory period of 90 days as required under the law.

“The Hon’ble Supreme Court in the case of Dipak Mali (supra) has clearly laid down that review done beyond a period of 90 days would not serve the purpose of law and would have no consequence. In the instant case, it is also admitted that no disciplinary proceeding has been initiated by issuance of any show cause notice prior to the expiry of the said period of 90 days,” the Court said.

Thus, the Court set aside the impugned suspension order dated November 01, 2022.

However, considering the submission of the respondents that the allegations against the petitioner are serious, the Court noted that the respondents would be at liberty to post the petitioner in any non-sensitive post.

Citation: 2023 LiveLaw (Gau) 96

Case Title: Sri Vinay Kumar Singh v. The Union of India & 5 Ors.

Case no.: WP(C)/1074/2023

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