# Union of India and others v. Ishwari Narayan Singh

- **Citation:** (2009) 3 ILRA 1136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-18
- **Case number:** Civil Misc. Writ Petition No. 32682 of 2009
- **Bench:** Ashok Bhushan, Kashi Nath Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-ishwari-narayan-singh-41405
- **Pages:** 14

## Headnote

Control & Appeal Rules 1965-Rule 10(1)-
(6)-Review of suspension order-prior to
expiry of the period of 90 days-heldmandatory-period of 90 days will count
from the date of release on from the date
of communication of release-date of
release is 6.7.2005 90 day expired on
5.10.2005-Committee
reviewed
the
suspension on 5.9.2005-well within time
suspension
order
requires
no
interference-Tribunal committed wrong
by setting a-side the same.

Held: Para 19 & 23

In view of the foregoing discussions, we
are satisfied that requirement of review
within 90 days as required by sub-rule
(6)
and
the
provisions
that
the
suspension order shall not be valid after
a period of 90 days unless it is extended
for a further period before expiry of 90
days, clearly makes the requirement of
review mandatory and in breach of
which the suspension becomes invalid.

From the papers brought on record, it is
clear that suspension dated 21.12.2004
was required to be reviewed within 90
days i.e. before 21.3.2005 which was not
done. Suspension thus, in view of what
we have said above, became invalid after
21.3.2005.
Case law discussed:
(1995) 1 UPLBEC 460, (2003) 6 SCC 516, 2006
(3) Administrative Total Judgments 11, AIR
1957 S.C. 917, 2001 (6) SCC, (1994) 1
Supreme Court Cases 754.

## Text

_Characters 0–39,966 of 45,245. This is a partial read: ask again with offset=39966 for what follows._

1136 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
matter to the revenue court for deciding
the nature of the land.

8. So far as the question of
maintainability is concerned, I find that
no ground has been taken in the
memorandum of revision in this regard.
The petitioner has not taken this plea at
the time of admission of the revision and
even at the time of hearing of the revision
and, therefore, such plea cannot be
entertained at this belated stage and is,
accordingly, rejected.

9. For the reasons stated above, I do
not find any merit in this writ petition. In
the result the writ petition fails and is
dismissed. However, the trial court is
directed to decide the suit preferably
within one year from the date of
presentation of a certified copy this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No. 32682 of 2009

Union of India and others ...Petitioners
Versus
Ishwari Narayan Singh ...Respondent

Counsel for the Petitioner:
Sri Ashok Nigam (Addl. Solicitor General)
Sri K.C. Sinha (Asstt. Solicitor General)
Sri Rakesh Sinha
Sri Ajay Bhanot

Counsel for the Respondents:
Sri Avnish Tripathi

(A) Central Civil Services (Classification
Control & Appeal Rules 1965-Rule 10(1)-
(6)-Review of suspension order-prior to
expiry of the period of 90 days-heldmandatory-period of 90 days will count
from the date of release on from the date
of communication of release-date of
release is 6.7.2005 90 day expired on
5.10.2005-Committee
reviewed
the
suspension on 5.9.2005-well within time
suspension
order
requires
no
interference-Tribunal committed wrong
by setting a-side the same.

Held: Para 19 & 23

In view of the foregoing discussions, we
are satisfied that requirement of review
within 90 days as required by sub-rule
(6)
and
the
provisions
that
the
suspension order shall not be valid after
a period of 90 days unless it is extended
for a further period before expiry of 90
days, clearly makes the requirement of
review mandatory and in breach of
which the suspension becomes invalid.

From the papers brought on record, it is
clear that suspension dated 21.12.2004
was required to be reviewed within 90
days i.e. before 21.3.2005 which was not
done. Suspension thus, in view of what
we have said above, became invalid after
21.3.2005.
Case law discussed:
(1995) 1 UPLBEC 460, (2003) 6 SCC 516, 2006
(3) Administrative Total Judgments 11, AIR
1957 S.C. 917, 2001 (6) SCC, (1994) 1
Supreme Court Cases 754.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Dr. Ashok Nigam, learned
Additional Solicitor General of India,
assisted by Sri Ajay Bhanot for the
petitioners and Sri Avnish Tripathi,
learned
counsel
appearing
for
the
respondent.

2. Counter and rejoinder affidavits
having been exchanged between the
parties, with the consent of the learned
3 All] Union of India and others V. Ishwari Narayan Singh
1137
counsel for the parties, the writ petition is
being finally decided.

3. By means of present writ petition,
the Union of India has challenged the
order dated 6.3.2009 of the Central
Administrative Tribunal allowing the
original Application No. 1561 of 2008
filed
by
Ishwari
Narayan
Singh
challenging his suspension order dated
21.1.2004 as well as the order dated
9.9.2005, rejecting the representation of
the respondent for revocation of his
suspension order.

4. Brief facts necessary for deciding
the issues raised in the writ petition are
that; the respondent, while was working
as Sub Post Master at Teliabagh, Post
Office
West
Division,
Varanasi,
complaints were received in October,
2004 that at Sub Post Office, Teliabagh
there was embezzlement of crores of
rupees. The Sub Post Master, Kashi
Vidyapith wrote a letter to the higher
authorities on 3.12.2009, making serious
allegations. An order dated 3.12.2004 was
passed by the Superintending of Post
Office West Division, Varanasi placing
the
petitioner
under
suspension
in
exercise of power under sub-rule (1) of
Rule 10 of Central Civil Services
(Classification, Control & Appeal) Rules,
1965 (hereinafter referred to as '1965
Rules') in contemplation of disciplinary
inquiry. The Director, Postal Services,
Allahabad Region sent a letter to the DIG,
CBI requesting for lodging a first
information report and to inquire into a
fraud case committed at Teliabagh post
office, Varanasi. The CBI conducted an
investigation
and
lodged
a
first
information report on 4.3.2005 under
section 120 read with section 409 I.P.C
and Sections 13(2), 13(i) of Prevention of
Corruption Act, 1988. The respondent
was also arrested by the CBI on 6.4.2005
and was released on bail by order of
Special
judge,
Anti-Corruption
Act,
Lucknow dated 6.7.2005. A chargesheet
dated 31.8.2005 was issued to the
respondent, which could be delivered on
13.9.2005. The respondent after being
released from detention on 6.7.2005,
appears
to
have
submitted
a
representation on 20.7.2005 against the
suspension order. Again he submitted a
further representation for revocation of
suspension
on
22.8.2005.
The
representation dated 22.8.2005 of the
respondent was rejected. The Review
Committee met on 5.9.2005 to review the
suspension of the respondent and took the
view that the suspension continue in view
of the CBI inquiry being continuing, letter
dated 9.9.2005 was sent to the petitioner
informing continuance of his suspension
by Superintendent of Post Office, West
Division Varanasi. Another letter dated
8.9.2009 was sent to the petitioner by Post
Master General, Allahabad informing that
his representation dated 22.8.2005 has
been rejected and the review Committee
decided to continue the suspension. The
respondent filed an Original Application
under section 19 of the Administrative
Tribunals Act, 1985 before the Central
Administrative
Tribunal,
Allahabad
praying for following reliefs.

"In view of the facts and reasons
mentioned in paragraph no. 4 above, it is
therefore, most respectfully prayed that
this Hon'ble Tribunal may graciously be
pleased to grant the following reliefs:-

(i) to issue an order, rule or direction
for quashing and setting aside the
impugned order dated 21.12.2004 passed
by the respondent no. 3 placing the
1138 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
applicant under suspension (Annexure
No. A-1 in compilation No. Part I).
(ii) to issue an order, rule or direction
for quashing and setting aside the
impugned order dated 9.9.2005 passed by
the respondent no. 2 communicated by the
respondent
no.
3
rejecting
the
representation /appeal of the applicant
for revocation of suspension order passed
by the respondent No. 3 (Annexure No. A2 in compilation no. and Part i).
(iii) to issue an order, rule, or direction
in the nature of mandamus directing the
respondent no. 5 to revoke the suspension
of the applicant and reinstate him on his
post.
(iv) to issue any other order, rule or
direction as this Hon'ble Tribunal may
deem fit and proper in the circumstances
of the case."

5. A counter affidavit was filed by
the petitioner refuting the claim of the
respondent. It was stated by the petitioner
that the respondent was suspended on the
allegation of misappropriation of huge
amount of sale proceeds of Kisan Vikas
Patra and N.S.C. by the respondent. It was
further stated that representation of the
respondent for revocation of suspension
was rejected and decision was intimated
to him vide letter dated 9.9.2005. It was
stated that chargesheet had already been
served and departmental inquiry was
proceeding. It was also stated that the
suspension of the respondent was required
to be extended as such it was reviewed
regularly by the competent authority from
time to time.

6. The Tribunal vide its judgment
and order dated 6.3.2009 allowed the
application quashing the suspension order
dated
21.12.2004
and
order
dated
9.9.2005 (rejecting the request of the
respondent
for
revocation
of
the
suspension). The petitioners have come
up in this Court challenging the order of
the Tribunal dated 6.3.2009. The Tribunal
gave the following reasons for quashing
the suspension order in paragraph 10 of
the judgment:

(i) The order of suspension passed
against the respondents has not at all been
reviewed by the competent authority
before expiry of the 90 days and as such
the same should be treated as null and
void.

(ii) The
reason
assigned
by
the
Superintendent of Post Offices, West
Division, Varanasi for non holding
review, in its order dated 9.9.2005, is also
wholly non speaking and cryptic. A
perusal of the letter clearly indicates that
there is no mention as to when the review
had taken place.

(iii) Under Rule it is clearly provided that
extension of suspension shall not be for a
period extending 180 days at a time.

(iv) "As discussed above, first review has
been prescribed to be undertaken at the
end of three months from the date of
suspension which has not at all been done
in the present case. It is also seen from the
record that the suspension order has been
passed without taking any follow up
action
either
to
complete
the
departmental/CBI
enquiry
and
the
applicant has been put under suspension
for indefinite period."

7. Dr. Ashok Nigam, Additional
Solicitor General of India challenging the
order of Central Administrative Tribunal
dated 6.3.2009 has made following
submissions:
3 All] Union of India and others V. Ishwari Narayan Singh
1139
(i) The sub-rule (6) and sub-rule (7) of
Rule 10 of 1965 Rules which require
review by the authority concerned before
expiry of 90 days from the effective date
of susension, is not mandatory and is
directory. The intendent of rule is only to
impress the authorities that review of
suspension be done within the time limit
and failure to review within 90 days does
not vitiate the suspension.

(ii) The review of the suspension having
been made after expiry of 90 days
deciding to continue the suspension the
suspension shall revive in view of the law
laid down by the Full Bench of this Court
in Chandra Bhushan Misra Vs. District
Inspector of Schools, Deoria and others
(1995) 1 UPLBEC 460.

(iii) There being serious allegations of
misappropriation against the respondent
and a first information report having
already been lodged by the CBI as well as
departmental inquiry having been under
process, the Tribunal erred in setting aside
the suspension order.

8. Sri Avnish Tripathi, learned
counsel for the respondent refuting the
submissions of learned counsel for the
petitioner contended that the requirement
of review of suspension within 90 days
under sub Rule (6) and (7) of Rule 10 of
1965 Rule is mandatory and non review
of such suspension within 90 days would
invalidate the suspension. It is contended
that no details of the review were brought
on record before the Tribunal and the
application
dated
6.3.2009
and
the
affidavit dated 5.3.2009 filed in support
thereof which have been filed along with
writ petition as Annexure-11 to the writ
petition, were never filed before the
Tribunal. There being no details of the
review of the suspension, the Tribunal
was
not
obliged
to
consider
the
submission, which are now sought to be
raised before this Court.

9. Learned Counsel for the parties
placed reliance on several judgments of
this Court as well as of the apex court in
support of their submissions, which shall
be referred to, while considering their
submissions in details.

10. The first issue which has arisen
in this case is as to whether the
requirement of review of suspension order
within 90 days from the effective date of
suspension, is a mandatory requirement or
a directory. For appreciating the above
submission, it is necessary to consider the
reason for bringing the amendments in the
rule by which sub Rules (6) and (7) were
added in Rule 10 of 1965 Rules. Rule 10
of 1965 Rules before its amendment was
as follows:

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

(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 :
1140 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Provided that, except in the case of an
order
of
suspension
made
by
the
Comptroller and Auditor-General in
regard to a member of the Indian Audit
and Accounts Services and in regard to
an
Assistant
Accountant-General
or
equivalent (other than a regular member
of the Indian Audit and Accounts
Services), 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-
(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 - The period of fortyeight 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.

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
3 All] Union of India and others V. Ishwari Narayan Singh
1141
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."

11. In context of unamended rule,
the question of interpretation of Rule
10(2)
which
provided
for
deemed
suspension of a Government servant,
came for consideration before the apex
Court in (2003) 6 SCC 516 Union of
India Vs. Rajiv Kumar. In the said case,
the government servant was arrested on
26.3.1998 and was released on bail on
2.4.1998. It was contended for the
employee that after release of the
government
servant,
the
deemed
suspension under rule 10(2) automatically
came to an end. Rule 10(5) (a) also fell
for consideration which provided that an
order of suspension made or deemed to
have been made shall continue to remain
in force until it is modified or revoked by
the authority competent to do so. The
apex
Court
in
the
said
judgment
considered
Rules
of
statutory
interpretation and laid down following in
paragraph 15:

"Thus, it is clear that the order of
suspension does not lose 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 10(5)(a) and the
employee has no right to be reinstated to
service.
This
position
was
also
highlighted in Balvantrai Ratilal Patel v.
State of Maharashtra (AIR 1968 SC 880).
Indication of expression "pending further
order" in the order of suspension was the
basis for aforesaid view."

12. The apex Court took the view
that suspension does not lose its efficacy
the movement detention comes to an end
and until an order is passed under Rule
10(5) (c), the suspension continues. The
apex Court in the said judgment held that
Court cannot read anything into a
statutory provision or rewrite a provision
which is plain and unambiguous.

13. It appears that after the aforesaid
judgment, the Government decided to
amend Rule 10. Rule 10 was amended by
O.M. dated 19.3.2004 by adding Sub rule
(6) and (7) which are quoted as below:

"(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.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(7) An order of suspension made or
deemed to have been made under subrules (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."

14. The clear intendment of the
amendment in Rule 10 by adding Subrules (6) and (7) was to limit the
suspension order or a deemed suspension
order for a fixed period and to necessitate
review of such suspension within 90 days
of
the
suspension
with
a
further
requirement that suspension could not by
one stretch be continued for more than
180 days. The apex Court in Union of
India Vs. Rajiv Kumar (supra), while
considering the same Rule 10 laid down
following principles for interpretation of
Statutes. Paragraphs 18,19,22,23 and 24
being relevant are quoted as below:

"18. 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.

19. 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 another (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,
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 others v.
Dilipbhai Nathjibhai Patel and another
(1998 (2) JT (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 (Liptan) Ltd. (1978) 1 All ER 948
(HL). Rules of interpretation do not
permit Courts to do so, unless the
provisions 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, quoted in
Jamma
Masjid,
Mercara
v.
Kodimaniandra Deyiah)"
3 All] Union of India and others V. Ishwari Narayan Singh
1143
22. 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.

23. Two principles of construction - one
relating to casus omissus and the other in
regard to reading the statute/statutory
provision as a whole - 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 (All ER p. 544), "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 where at p. 577
he also observed: "this is not a new
problem, though our standard of drafting
is such that it rarely emerges".

24. 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 Fanton v. Hampton).

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 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 (ER p.967), "can in no case be
supplied by a Court of law, for that would
be to make laws."

15. Learned counsel for the
respondent has also placed reliance on a
Full
Bench
judgment
of
Central
Administrative
Tribunal
New
Delhi
1144 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
reported in 2006 (3) Administrative Total
Judgments 11 D.R. Rohilla Vs. Union of
India & others in which case amended
sub-rule (6) and (7) fell for consideration
and the Full Bench of the Tribunal took
the view that the suspension, if not
reviewed within 90 days, shall become
invalid.

16. The object and purpose of
amending Rule 10 by adding sub rules (6)
and (7) is apparent from the Rule itself.
Sub-rule (6) uses the words "shall be
reviewed by the authority competent to
modify or revoke the suspension before
expiry of ninety days". Further sub Rule
(7) lays down that an order of suspension
"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" .

The use of word "shall" raises a
presumption that a particular provision is
imperative as laid down by the apex Court
in AIR 1957 S.C. 917 State of U.P. Vs.
Manbodhan Lal Srivastava. A perusal
of the above rule indicates that sub rule
(6) provides review before expiry of 90
days from the suspension and sub rule (7)
provides the consequence of not being
reviewed within 90 days. The apex Court
on 2001 (6) SCC Rajesekhar Gogoi Vs.
State
of
Assam
laid
down
that
consequence of nullification or failure to
apply within a prescribed requirement
provided by Statute there can be no
manner of doubt that such statutory
requirement must be interpreted as
mandatory. Following was laid down by
the apex Court in paragraph 11:

"....We do not agree with the
observations of the High Court that Rule
206 is not mandatory. The language of the
said rule is clear and unambiguous. It not
only says that the tenders must be in their
required Form but also stipulates the
consequences of non compliance thereto,
the consequence being that the tenders
not containing all the particulars 'shall be
liable to be rejected.'"

17. The submission of Dr. Ashok
Nigam,
learned
Additional
Solicitor
General of India is that requirement of
review within 90 days is to be taken only
as directory since the only intendment of
Rule was to impress the authority to carry
on review within 90 days. Reliance has
been placed by learned counsel for the
petitioner on the judgment of the apex
Court in (1994) 1 Supreme Court Cases
754 T.V. Usman Vs. Food Inspector,
Tellicherry Municipality. In the said
case, Rule 7(3) of Prevention of Food
Adulteration
Rule
came
up
for
consideration which required sending of
the report within period of 45 days. The
apex Court laid down following in
paragraphs 11 and 12:

"11. In Rule 7(3) no doubt the
expression "shall" is used but it must be
borne in mind that the Rule deals with
stages prior to launching the prosecution
and it is also clear that by the date of
receipt of the report of the Public Analyst
the case is not yet instituted in the court
and it is only on the basis of this report of
the Public Analyst that the concerned
authority has to take a decision whether
to institute a prosecution or not. There is
no time limit prescribed within which the
prosecution has to be instituted and when
there is no such limit prescribed then
there is no valid reason for holding the
period of 45 days as mandatory. Of
course that does not mean that the Public
Analyst can ignore the time limit
3 All] Union of India and others V. Ishwari Narayan Singh
1145
prescribed under the Rules. He must in all
cases try to comply with the time limit.
But if there is some delay, in a given case,
there is no, reason to hold that the very
report is void and on that basis to hold
that even prosecution cannot be launched.
may be, in a given case, if there is
inordinate delay, the court may not attach
any value to the report but merely
because the time limit is prescribed, it
cannot be said that even a slight delay
would
render
the
report
void
or
inadmissible in law. In this context it must
be noted that Rule 7(3) is only a
procedural provision meant to speed up
the process of investigation on the basis
of which the prosecution has to be
launched. No doubt, sub-sec. (2) of S. 13
of the Act confers valuable right on the
accused under which provision the
accused can make an application to the
court within a period of 10 days from the
receipt of copy of the report of Public
Analyst to get the samples of food
analysed in the Central Food Laboratory
and in case the sample is found by the
said Central Food Laboratory unfit for
analysis due to decomposition by passage
of time or for any other reason
attributable to the lapses on the side of
prosecution, that valuable right would
stand denied. This would constitute
prejudice to the accused entitling him to
acquittal but mere delay As such will not
per se be fatal to the prosecution case
even in cases where the sample continues
to remain fit for analysis in spite of the
delay because the accused is in no way
prejudiced on the merits of the case in
respect of such delay. Therefore it must be
shown that the delay has led to the denial
of right conferred u/ S. 13(2) and that
depends on the facts of each case and
violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a
ground for the prosecution case being
thrown out.

12. In this context it is useful to refer to
the judgment of this Court in Dalchand v.
Municipal Corporation, Bhopal AIR 1983
SC 303 wherein the question was whether
Rule
90)
of
Prevention
of
Food
Adulteration Rules under which report of
the public analyst has to be supplied
within ten days, is mandatory or directory
and it was held as under (para 1):

"There are no ready tests or
invariable formulas to determine whether
a provision is mandatory or directory.
The broad purpose of the statute is
important. The object of the particular
provision must be considered. The link
between the two is most important. The
weighing of the consequence of holding a
provision to be mandatory or directory is
vital
and,
more
often
than
not,
determinative
of
the
very
question
whether the provision is mandatory or
directory. Where the design of the statute
is the avoidance or prevention of public
mischief, but the enforcement of a
particular provision literally to its letter
will tend to defeat that design, the
provision must be held to be directory, so
that proof of prejudice in addition to non
compliance of the provision is necessary
to invalidate the act complained of. It is
well to remember that quite often many
rules, though couched in language which
appears to be imperative, are no more
than mere instructions to those entrusted
with the task of discharging statutory
duties for public benefit. The negligence
of those to whom public duties are
entrusted
cannot
be
statutory
interpretation be allowed to promote
public
mischief
and
cause
public
inconvenience and defeat the main object
1146 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the statute. It is as well to realise that
every prescription of a period within
which an act must be done, is not the
prescription of a period of limitation with
painful consequences if the act is not done
within that period."

In this view of the matter this Court held
that Rule 90(j) is only directory and not
mandatory. Regarding the effect of noncompliance of Rule 9(j) it was further
held that:

"Where the effect of non-compliance with
the rule was such as to wholly deprive the
right of the person to challenge the Public
Analyst's Report by obtaining the report
of the Director of the Central Food
Laboratory, there might be just cause for
complaint, as prejudice would then be
writ large. Where no prejudice was
caused there could be no cause for
complaint. I am clearly of the view that
Rule 9(j) of the Prevention of Food
Adulteration Rules was directory and not
mandatory."

18. In the present case, the
obligation for reviewing the suspension
within 90 days, has been placed on the
public authority and if it is held that such
requirement is only directory, the purpose
and object for which the rule was
amended shall be defeated and cause
prejudice to the person for whose benefit
the rule was amended. The judgment of
the apex Court in the case of T.V. Usman
(supra) was in the background of a
particular purpose in which the report had
to be analysed and was required to be
submitted within 45 days. The said case is
clearly
distinguishable
and
has
no
application in the present case.

19. In view of the foregoing
discussions,
we
are
satisfied
that
requirement of review within 90 days as
required
by
sub-rule
(6)
and
the
provisions that the suspension order shall
not be valid after a period of 90 days
unless it is extended for a further period
before expiry of 90 days, clearly makes
the requirement of review mandatory and
in breach of which the suspension
becomes invalid.

20. The judgment of Full Bench of
this Court in Chandra Bhushan Misra
(supra) also needs to be considered. In the
aforesaid case, Section 16 G (7) of U.P.
Intermediate Education Act, 1921 fell for
consideration. Section 16-G(7) provides
as under:
"16-G
(7)
No
such
order
of
suspension shall, unless approved in
writing by the Inspector, remain in force
for more than sixty days from the date of
commencement
of
Uttar
Pradesh
Secondary Education Laws(Amendment)
Act, 1975, or as the case may be , from
the date of such order, and the order of
the Inspector shall be final and shall not
be questioned in any Court."

21. The Full Bench judgment
considered the statutory provisions which
uses different expression i.e. "in force",
whereas sub rule (7) of Rule 10 clearly
contemplates that suspension shall not be
valid after period of 90 days unless it is
extended before expiry of 90 days.
However, in view of the fact of the
present case, we do not consider it
necessary to express any concluded
opinion on the submission that after
review of the suspension even after expiry
of 90 days, the suspension revives and
continues. In view of the facts of the
3 All] Union of India and others V. Ishwari Narayan Singh
1147
present case, it can be decided leaving the
above issue.

22. One of the submissions of the
learned counsel for the respondent is that
the details of the review of suspension
was not on the record before the Tribunal
hence, Tribunal was not required to
consider the review of the submission. It
is emphatically submitted that application
dated 6.3.2009 supported by affidavit of
Kameshwar
Prasad
Pandey
dated
5.3.2009, filed as Annexure-11 to the writ
petition was never filed before the
Tribunal. Although in the main counter
affidavit, no specific denial was made to
the filing of the application dated
5.3.2009
but
the
respondent
has
subsequently filed an affidavit stating
therein that said application and affidavit
were not on record before the Tribunal.
The petitioner has filed the copy of the
order dated 9.9.2009 as Annexure-7 to the
writ petition which order was issued by
Superintendent Post Office informing the
respondent that the review Committee in
its meeting dated 5.9.2005 has continued
the suspension. The said order dated
9.9.2005 was also challenged before the
Tribunal. The decision of the Review
Committee dated 5.9.2005 to continue the
suspension was communicated to the
respondent and the said decision dated
5.9.2005 was also under challenge before
the Tribunal. Thus, it cannot be said that
review of suspension dated 5.9.2005 was
not an issue. In so far as proceedings of
the Review Committee which are said to
be brought on record before the Tribunal
by application dated 6.3.2009, which is
being disputed by the respondent, suffice
it to say that along with supplementary
affidavit dated 18.11.2009, which has
been filed in the writ petition all the
proceedings from 5.9.2005 till 20.10.1999
has been brought on record which has
been looked into and perused by us. As
noticed above, the Tribunal held that
suspension of the applicant had not been
reviewed before expiry of 90 days hence,
the same has become null and void. It is
further observed by the Tribunal in
paragraph 10 that a perusal of the letter
dated 9.9.2005 does not indicate any
mention of the date when the review had
was taken place. We have perused the
letters filed as Annexures-7 and 8. Both
the letters, which were communication
sent to the respondent mentions rejection
of the representation dated 22.8.2005 and
the date of the review committee which
was held on 5.9.2005. Thus, the Tribunal
has committed error in observing that no
date of the review of suspension has been
given.
23. From the papers brought on
record, it is clear that suspension dated
21.12.2004 was required to be reviewed
within 90 days i.e. before 21.3.2005
which was not done. Suspension thus, in
view of what we have said above, became
invalid after 21.3.2005.

24. One relevant fact, which escaped
notice of the Tribunal is now to be noted.
The respondent was arrested by the C.B.I.
on 6.4.2005 and was released from
detention on 6.7.2005. By virtue of Rule
10(2), the respondent shall be deemed to
have been placed under suspension w.e.f.
the date of detention, even though earlier
suspension dated 21.12.2004 had come to
an end. The petitioner according to his
own case has submitted representation on
22.7.2005 and thereafter on 22.8.2005 for
revocation of suspension. The proviso to
sub rule (7) of Rule 10 provides as
follows:
1148 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
"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."

25. According to the proviso, the 90
days period in the case of deemed
suspension due to detention will count
from the date the Government servant is
released from detention or from the date
on which the fact of his release is
intimated, which ever is later.