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CASE NO.: Appeal (civil)  5007 of 2003 Appeal (civil)  5008 of 2003

PETITIONER: Union of India                                                   Union of India and Ors.                                  

RESPONDENT: Vs. Rajiv Kumar                                                      Bani Singh       

DATE OF JUDGMENT: 18/07/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.                                

JUDGMENT:

J U D G M E N T

WITH

(Arising out of SLP(C) No. 4491 of 2003) (Arising out of SLP(C) 12703/2003 (CC.5872/2003)

ARIJIT PASAYAT,J

        Delay condoned in SLP(C)........./2003 (CC 5872/2003).

       Leave granted.   

       The basic issue in these two appeals relates to the  scope and ambit of Sub-Rule (2) of Rule 10 of the Central  Civil Services (Classification, Control and Appeal) Rules,  1965 (in short the ’Rules’) vis-Ã -vis other provisions of  the said Rule.  

       Division Bench of the Delhi High Court by the impugned  judgment in each case held that Sub-Rule (2) of Rule 10 does  not contain any provision wherefrom it can be deduced that  the deemed suspension for custodial detention exceeding  forty eight hours would continue until it is withdrawn. It  was further held that on a plain reading of the said  provision it is clear that the same comes to an end by  operation of law after release of the employee from  detention.  

       Factual scenario is almost undisputed and needs to be  noted in brief.

       Respondent-employee in each case was arrested and  detained in custody for a period exceeding 48 hours. With  reference to Sub-Rule (2) of Rule 10, the order was passed  in each case indicating that in view of the detention in   custody for a period exceeding 48 hours, the concerned  employee is deemed to have been suspended with effect from  the date of suspension and shall remain suspended until  further orders.

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       The background facts of the appeal relating to  respondent-Rajiv Kumar is referred for the purpose of  adjudicating the issues involved as the factual position in  the appeal relating to Bani Singh would not affect ultimate  conclusions. Rajiv Kumar was arrested on 26.3.1998 for  allegedly accepting bribe and was released on bail on  2.4.1998. The order purportedly under Sub-Rule (2) of Rule  10 to formally place on record was passed on 15.5.1998. On  2.7.2000 the order dated 15.5.1998 was assailed before the  Central Administrative Tribunal (in short the ’CAT’) at its  Delhi Bench on the ground that there was no reason for his  continued suspension. The prosecuting agency filed challan  on 2.9.2000. On 11.10.2000, Rajiv Kumar filed an application  for interim relief. On 9.11.2000 an order was passed by the  authorities continuing suspension. By judgment dated  14.3.2001 CAT directed the authorities to dispose of the  matter by a reasoned and speaking order. An application for  review was filed on 26.4.2001. It was rejected by an order  dated 15.5.2001. In terms of the CAT’s directions, an order  was passed on 21.5.2001. The same is stated to be the  subject matter of challenge before the Mumbai Bench of CAT.  On 3.8.2001, Civil Writ Petition No.4746/2001 was filed  before the Delhi High Court challenging the aforesaid orders  dated 14.3.2001 and 15.5.2001. At this juncture, it needs to  be noted that there was no challenge to the order dated  9.11.2000.                   By the impugned judgment, the Delhi High Court came to  hold, as noted above, that CAT was not correct in remitting  the matter back to the appointing authority for  consideration of the matter afresh. It was, inter alia,  observed that if a question of law had been raised before  it, CAT was required to apply its mind and pass appropriate  orders. The impugned order of suspension was quashed. It was  held that the order dated 15.5.1998 cannot be treated  to be  one passed under Sub-Rule (2) of Rule 10. It was held that  an order of suspension after release of the petitioner on  bail could not have been passed under Sub-Rule (2) of Rule  10 and such order could have been passed only in terms of  Sub-rule (1) of Rule 10. View expressed  by a Full Bench of  the Allahabad High Court in Chandra Shekhar Saxena and Ors.  v. Director of Education (Basic) U.P.,Lucknow and Anr. (1997  Allahabad Law Journal 963) was followed. It was further held  that a combined reading of Rules 10(1), 10(2), 10(3), 10(4)  and 10(5)(a) makes the position clear that the order of  suspension was effective for the period of detention and not  beyond it where by legal fiction a person is deemed to be  under suspension for being in custody for a period exceeding  48 hours.  

       For the sake of brevity, different Sub-rules have been  referred as Rules 10(1), 10(2), 10(3), 10(4), 10(5)(a),  10(5)(b) and 10(5)(c).

       In Bani Singh’s case, the logic was applied, since the  legal position was held to be similar.  

       In support of the appeals, learned counsel for the  Union of India submitted that if the interpretation put by  the High Court is accepted the same would mean addition of  words to Rule 10(2). The language used in the said provision  is clear and unambiguous and, therefore, there is no scope  for making any alteration in the statutory texture. It was  further submitted that by accepting the interpretation, Sub-

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Rule 5(a) of Rule 10 would also be rendered purposeless.  

       Per contra, respondents-employees who appeared in  person submitted that the interpretation  brings out the  true essence of a deeming provision, which cannot be  extended beyond the purpose for which it was enacted. On a  combined reading of Rules 10(2), 10(3), 10(4) and 10(5)(a)  it is claimed for the respondents that the order of  suspension in a case covered under Rule 10(2)(a) has limited  operation for the period of detention and not beyond it.  Further it is submitted that an employee cannot be placed  under suspension for an indefinite period of time. Though  suspension is not penal in character yet it has serious  civil consequences. In the fact till date there has been  practically no progress in criminal proceedings and the  departmental actions initiated.

With reference to the Central Civil Services  (Classification, Control and Appeal) Rules, 1957 (in short  the ’Old Rules’), it is pointed out that there is  conceptual difference in the relevant provisions and the  interpretation put by the High Court is in order.  Additionally, it is submitted that fresh order of  suspension has been passed and the appeals have become  infructuous because of subsequent events.  

Rule 10 is the pivotal provision around which the  controversy revolves, and it reads as follows:

Rule 10.  Suspension (1)  The appointing authority or any authority  to which it is subordinate or the disciplinary  authority or any other authority empowered in  that behalf by the President, by general or  special order, may place a Government servant  under suspension â\200\223

(a)     where a disciplinary proceeding against  him is contemplated or is pending; or

(aa)    where, in the opinion of the authority  aforesaid, he has engaged himself in  activities prejudicial to the interest  of the security of the State; or

(b)     where a case against him in respect of  any criminal offence is under  investigation, inquiry or trial:

Provided that, except in case of an order of  suspension made by the Comptroller and Auditor- General in regard to a member of the Indian  Audit and Accounts Service and in regard to an  Assistant Accountant-General or equivalent  (other than a regular member of the Indian Audit  and Accounts Service), where the order of  suspension is made by an authority lower than  the appointing authority, such authority shall  forthwith report to the appointing authority the  circumstances in which the order was made.

(2)     A Government servant shall be deemed to  have been placed under suspension by an order of  appointing authority â\200\223

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(a)     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 forty- eight hours;

(b)     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 forty-eight hours and is not  forthwith dismissed or removed or  compulsorily retired consequent to such  conviction.

EXPLANATION â\200\223 The period of forty-eight  hours referred to in clause (b) of this sub-rule  shall be computed from the commencement of the  imprisonment after the conviction and for this  purpose, intermittent periods of imprisonment,  if any, shall be taken into account.

(3)     Where a penalty of dismissal, removal or  compulsory retirement from service imposed upon  a Government servant under suspension is set  aside in appeal or on review under these rules  and the case is remitted 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.

(4)     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 a  further inquiry against him on the allegations  on which the 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:

Provided that no such further inquiry shall  be ordered unless it is intended to meet a  situation where the Court has passed an order  purely on technical grounds without going into  the merits of the case.

(5)(a)  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.

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5(b)    Where a Government servant is suspended  or is deemed to have been suspended (whether in  connection with any disciplinary proceeding or  otherwise), and any other disciplinary  proceeding is commenced against him during the  continuance of that suspension, the authority  competent to place him under suspension may, for  reasons to be recorded by him in writing, direct  that the Government servant shall continue to be  under suspension until the termination of all or  any of such proceedings.

5(c)    An order of suspension made or deemed to  have been made under this rule may at any time  be modified or revoked by the authority which  made or is deemed to have made the order or by  any authority to which that authority is  subordinate."  

Rule 10(2) is a deemed provision and creates a legal  fiction. A bare reading of the provision shows that an  actual order is not required to be passed. That is deemed  to have been passed by operation of the legal fiction. It  has as much efficacy, force and operation as an order  otherwise specifically passed under other provisions.  It  does not speak of any period of its effectiveness. Rules  10(3) and 10(4) operate conceptually in different  situations and need specific provisions separately on  account of interposition of an order of Court of law or an  order passed by the Appellate or reviewing authority and  the natural consequences inevitably flowing from such  orders.   Great emphasis is laid on the expressions "until  further orders" in the said sub-rules to emphasise that  such a prescription is missing in Sub-rule (2). Therefore,  it is urged that the order is effective for the period of  detention alone. The plea is clearly without any substance  because of Sub-Rule 5(a) and 5(c) of Rule 10.  The said  provisions refer to an order of suspension made or deemed  to have been made. Obviously, the only order which is even  initially deemed to have been made under Rule 10 is one  contemplated under Sub-Rule (2). The said provision under  Rule 10(5)(a) makes it crystal clear that the order  continues to remain in force until it is modified or  revoked by an authority competent to do so while Rule  10(5)(c) empowers the competent authority to modify or  revoke also. NO exception is made relating to an order  under Rules 10(2) and 10(5)(a). On the contrary,  specifically it encompasses an order under Rule 10(2). If  the order deemed to have been made under Rule 10(2) is to  loose effectiveness automatically after the period of  detention envisaged comes to an end, there would be no  scope for the same being modified as contended by the  respondents and there was no need to make such provisions  as are engrafted in Rule 10(5)(a) and (c) and instead an  equally deeming provision to bring an end to the duration  of the deemed order would by itself suffice for the  purpose.  

       Thus, it is clear that the order of suspension does not  loose its efficacy and is not automatically terminated the  moment the detention comes to an end and the person is set  at large.  It could be modified and revoked by another  order as envisaged under Rule 10(5)(c) and until that  order is made, the same continues by the operation of Rule

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10(5)(a) and  the employee has no right to be re-instated  to service. This position was also highlighted in  Balvantrai Ratilal Patel v. State of Maharashtra (AIR 1968  SC 800). Indication of expression "pending further order"  in the order of suspension was the basis for aforesaid  view.   

Reference has been made to Sub-Rule 5(b) of Rule 10.  According to the High Court the same appears to have been  made "ex majori cautela". Conceptually Sub-Rules 5(a) and  5(b) operate in different fields and for different  purposes, i.e., when more than one disciplinary  proceedings come to be initiated to cover all such  situations. Both the provisions have to be read  harmoniously. Otherwise, Sub-Rule 5(a) would become  meaningless and Sub-Rule 5(c) purposeless and both  provisions would be rendered otiose and superfluous.   

       View of the Full Bench of the Allahabad High Court  (supra) that the legal fiction created ceases to be  effective for the purpose of suspension while operative  for other purposes is clearly unsustainable and we do not  approve of the same.    It is well settled principle in law that the Court  cannot read anything into a statutory provision or rewrite a  provision which is plain and unambiguous. A statute is an  edict of the Legislature. The language employed in a statute  or any statutory provision is the determinative factor of  legislative intent of policy makers.  

Words and phrases are symbols that stimulate mental  references to referents. The object of interpreting a  statute or any statutory provision is to ascertain the  intention of the Legislature  or the Authority enacting it.  (See Institute of Chartered Accountants of India v. M/s  Price Waterhouse and Anr.  (AIR 1998 SC 74)) The intention  of the maker is primarily to be gathered from the language  used, which means that attention should be paid to what has  been said as also to what has not been said. As a  consequence, a construction which requires for its support,  addition or substitution of words or which results in  rejection of words as meaningless has to be avoided. As  observed in Crawford v. Spooner (1846 (6) Moore PC 1),  Courts, cannot aid the Legislatures, defective phrasing of  an Act, we cannot add or mend, and by construction make up  deficiencies which are left there. (Also See The State of  Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT  1998 (2) SC 253)). It is contrary to all rules of  construction to read words into an Act unless it is  absolutely necessary to do so. (See Stock v. Frank Jones  (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of  interpretation do not permit Courts to do so, unless the  provision as it stands is meaningless or of doubtful  meaning. Courts are not entitled to read words into an Act  of Parliament unless clear reason for it is to be found  within the four corners of the Act itself. (Per Lord  Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910)  AC 445 (HL), quoted in Jamma Masjid, Mercara v.  Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).  

The question is not what may be supposed and has been  intended, but what has been said. "Statutes should be  construed not as theorems of Euclid". Judge Learned Hand  said, "but words must be construed with some imagination of

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the purposes which lie behind them". (See Lenigh Valley  Coal Co. v. Yensavage 218 FR 547). The view was re-iterated  in Union of India and Ors. v. Filip Tiago De Gama of Vedem  Vasco De Gama (AIR 1990 SC 981).  

In D.R. Venkatchalam and Ors. etc. v. Dy. Transport  Commissioner and Ors. etc. (AIR 1977 SC 842), it was  observed that Courts must avoid the danger of an a priori  determination of the meaning of a provision based on their  own pre-conceived notions of ideological structure or scheme  into which the provision to be interpreted is somewhat  fitted. They are not entitled to usurp legislative function  under the disguise of interpretation.  

While interpreting a provision, the Court only  interprets the law and cannot legislate it. If a provision  of law is misused and subjected to the abuse of process of  law, it is for the legislature to amend, modify or repeal  it, if deemed necessary. (See Commissioner of Sales Tax,  M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515).  The legislative casus omissus cannot be supplied by judicial  interpretative process.  

Two principles of construction â\200\223 one relating to casus  omissus and the other in regard to reading the  statute/statutory provision as a whole â\200\223 appear to be well  settled. Under the first principle a casus omissus cannot be  supplied by the Court except in the case of clear necessity  and when reason for it is found in the four corners of the  statute itself. But, at the same time a casus omissus should  not be readily inferred and for that purpose all the parts  of a statute or section must be construed together and every  clause of a section should be construed with reference to  the context and other clauses thereof so that the  construction to be put on a particular provision makes a  consistent enactment of the whole statute. This would be  more so if literal construction of a particular clause leads  to manifestly absurd or anomalous results which could not  have been intended by the Legislature. "An intention  to  produce an unreasonable result", said Danackwerts, L.J. in  Artemiou v. Procopiou (1966 1 QB 878), "is not to be  imputed to a statute if there is some other construction  available". Where to apply words literally would "defeat  the obvious intention of the legislation and produce a  wholly unreasonable result" we must "do some violence to  the words" and so achieve that obvious intention and  produce a rational construction. (Per Lord Reid in Luke v.  IRC (1966 AC 557) where at p. 577 he also observed: "this  is not a new problem, though our standard of drafting is  such that it rarely emerges".  It is then true that, "when the words of a law extend  not to an inconvenience rarely happening, but do to those  which often happen, it is good reason not to strain the  words further than they reach, by saying it is casus  omissus, and that the law intended quae frequentius  accidunt." "But," on the other hand,"it is no reason,  when the words of a law do enough extend to an inconvenience  seldom happening, that they should not extend to it as well  as if it happened more frequently, because it happens but  seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A casus  omissus ought not to be created by interpretation, save in  some case of strong necessity. Where, however, a casus  omissus does really occur, either through the inadvertence  of the legislature, or on the principle quod semel aut bis  existit proetereunt legislatores, the rule is that the

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particular case, thus left unprovided for, must be disposed  of according to the law as it existed before such statute -  Casus omissus et oblivioni datus dispositioni communis juris  relinquitur; "a casus omissus," observed Buller, J. in  Jones v. Smart (1 T.R. 52), "can in no case be supplied by  a court of law, for that would be to make laws."

The golden rule for construing wills, statutes, and, in  fact, all written instruments has been thus stated: "The  grammatical and ordinary sense of the words is to be adhered  to unless that would lead to some absurdity or some  repugnance or inconsistency with the rest of the instrument,  in which case the grammatical and ordinary sense of the  words may be modified, so as to avoid that absurdity and  inconsistency, but no further" (See Grey v. Pearson 6 H.L.  Case 61). The latter part of this "golden rule" must,  however, be applied with much caution. "if," remarked  Jervis, C.J., "the precise words used are plain and  unambiguous in our judgment, we are bound to construe them  in their ordinary sense, even though it lead, in our view of  the case, to an absurdity or manifest injustice. Words may  be modified or varied where their import is doubtful or  obscure. But we assume the functions of legislators when we  depart from the ordinary meaning of the precise words used,  merely because we see, or fancy we see, an absurdity or  manifest injustice from an adherence to their literal  meaning" (See Abley v. Dale 11, C.B. 378).

       The inevitable conclusion therefore is that the order  in terms of Rule 10(2) is not restricted in its point of  duration or efficacy to the period of actual detention  only. It continues to be operative unless modified or  revoked under Sub-Rule 5(c), as provided under Sub-rule  5(a).  

       Rule 10(5)(b) deals with a situation where a government  servant is suspended or is deemed to have suspended and  any other disciplinary proceeding is commenced against him  during continuance of that suspension irrespective of the  fact whether the earlier suspension was in connection with  any disciplinary proceeding or otherwise. Rule 10 (5)(b)  can be pressed into service only when any other   disciplinary proceeding is also commenced than the one for  and during which suspension or deemed suspension was  already in force, to meet the situation until the  termination of all such proceedings.  In contradiction,  Rule 10(5)(a) has application in relation to an order of  suspension already made or deemed to have been made. Rule  10(5)(b) has no application to the facts of the present  case and no inspiration or support could be drawn for the  stand taken for the respondents or the decision arrived at  by the High Court. It is Rule 10(5)(a) alone which has  application and the deemed suspension would continue to be  in force till anything has been done under Rule 10(5)(c).  Similarly, Rules 10(3) and 10(4) operate in different  fields and merely because a specific provision is made for  its continuance, until further orders in them itself due  to certain further developments taking place and  interposition of orders made by Court or appellate and  reviewing authority to meet and get over such specific  eventualities, in given circumstances  and  that does not  in any way affect the order of suspension deemed to have  been made under Rule 10(2).

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Strong reliance was placed on Nelson Motis v. Union of  India (1992 (4) SCC 711) to contend that omission of the  expression "until further orders" in Rule 10(2) was  conscious and, therefore, the period covered for "deemed  suspension" was restricted to period of detention. Such  plea is without substance. In Nelson’s case (supra) the  respective scope and ambit of Rule 10(2) and Rule 10(3)  fell for consideration. As indicated above, the said  provisions apply in conceptually and contextually  different situations and have even no remote link with a  situation envisaged under Rule 10(2). In fact, this Court  in the said case categorically observed as under:

       "The comparison of the language with  that of Sub-Rule (3) re-inforces the  conclusion that Sub-Rule (4) has to be  understood in the natural sense".  (underlined for emphasis).

  Another plea raised relates to a suspension for a very  long period. It is submitted that the same renders the  suspension invalid. The plea is clearly untenable. The  period of suspension should not be unnecessarily prolonged  but if plausible reasons exist and the authorities feel  that the suspension needs to be continued, merely because  it is for a long period that does not invalidate the  suspension.  Some other pleas were pressed into service to contend  that High Court’s order is justified. It is submitted that  these stands were highlighted before the High Court though  not specifically dealt with. Since the High Court has not  dealt with these aspects, we do not take the other  contentions into account to express any view.   Though factually it is undisputed that fresh order of  suspension had been passed in each case, the same relates  to a separate cause of action and if any dispute is raised  as regards its legality, the same has to be adjudicated by  the concerned Court or the Tribunal, as the case may be,  on its own merits and in accordance with law.   The impugned order of the High Court in each case  stands quashed. The appeals are allowed leaving the  parties to bear their own costs.