HARSHA DEVANI,J. - (1.) By this letters patent appeal, the appellant has challenged the judgment and order dated 29.08.2018 passed by the learned Single Judge dismissing the writ petition filed by the appellant - original petitioner whereby, he had challenged the order of suspension dated 28.12.2016 as well as initiation of inquiry against him by issuing charge-sheet dated 28.12.2016.
(2.) Mr. Mitul Shelat, learned advocate with Ms. Avni H. Pandya, learned advocate for the appellant invited the attention of the court to the First Statutes for all National Institutes of Technology (Amendment) Statutes, 2017 (hereinafter referred to as the "Amending Statutes"enacted by the Central Government in exercise of powers conferred by sub-section (3) and sub-section (4) of section 26 of the National Institutes of Technology, Science Education and Research Act , 2007, to point out that by virtue of clause 15 of the Amending Statutes clause 26 of the Principal Statutes which provided for "Suspension, Penalties, Disciplinary Proceedings" stands substituted and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 have been made applicable to all the employees. Reference was made to rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1985 (hereinafter referred to as the "rules") which provides for 'suspension'. It was pointed out that under sub-rule 6 thereof, an order of suspension made or deemed to have been made under that rule shall be reviewed by the authority which is 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 order 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 period exceeding 180 days at a time. It was submitted that, therefore, it was incumbent upon the respondent No. 2 to review the suspension order within 90 days of the coming into force of the amended statutes with effect from 21.07.2017 and in absence of such review the suspension order has lapsed. 2.1 In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in Union of India and others v. Dipak Mali , (2010) 2 SCC 222, wherein, it has been held thus: "10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the respondent and when the petitioners' case came up for review on 20-10-2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of sub-rules (6) and (7) of Rule, 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days. 11. The case sought to be made out on behalf of the petitioner Union of India as to the case of delay in reviewing the respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension." It was submitted that the above decision would be squarely applicable to the facts of the present case and that the appellant having made out a strong prima facie case, the impugned order of suspension deserves to be stayed. 2.2 Alternatively, Mr. Shelat submitted that the provisions of section 6 and section 24 of the General Clauses Act, 1897 are not applicable to rules or statutes, and there is no provision in the Amending Statutes to the effect that the pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted, and hence, upon clause 26 of the Principal Statutes being omitted and substituted by the rules, the pending proceedings which have been initiated under the omitted rules would lapse and therefore, the continuation of the entire proceedings is without authority of law. In support of his submission, the learned advocate placed reliance upon the decision of the Supreme Court in Kolhapur Canesugar Works Ltd. v. Union of India and others , (2002) 2 SCC 536, wherein, it has been held that for the purpose of considering the question of maintainability of pending proceeding initiated under a particular provision of the rule after the said provision was omitted, the court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether pending proceedings will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceedings will continue. If the case is covered by section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the rule has been framed, in that case also the pending proceedings will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceedings were initiated being deleted/omitted. In the facts of the case before it, the court held that rule 10 or rule 10-A of the Central Excise Rules was neither a " Central Act " nor a "regulation" as defined in the Act. Section 6 is applicable where any Central Act or regulation made after commencement of the General Clauses Act repeals any enactment. It is not applicable in the case of omission of a "rule". The position of law is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed and the statute must be considered as a law that never existed. The operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. Mr. Shelat submitted that there being no saving provision to the effect that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted, upon the coming into force of the Amending Statute, the pending proceedings including the action of suspending the appellant, cannot continue. 2.3 It was, accordingly, urged that the appeal requires consideration and the interim relief as prayed for deserves to be granted.
(3.) Vehemently opposing the appeal, Ms. Megha Jani, learned advocate for the respondent No. 2 submitted that the order of suspension has been made under clause 26 of the Principal Statutes whereas, sub-rule (6) of rule 10 of the rules applies to an order of suspension made or deemed to have been made under that rule. It was submitted that the order of suspension having not been made or deemed to have been made under rule 10 of the rules, the provisions of sub-rule (6) of rule 10 would not be applicable. Consequently, the question of reviewing the suspension order within 90 days from the date of coming into force of Amending Statutes would not arise. It was urged that the court may consider the nature of the charges which are grave and serious in nature, especially in view of the fact that the contention with regard to lapsing of the order of suspension has not been raised before the learned Single Judge. It was urged that considering the fact that the learned Single Judge has ordered that the inquiry be completed by 31.12.2018, this court may not interfere and in the event the court is of the view that sub-rule (6) of rule 10 of the rules is applicable to the facts of the present case, the Review Committee may be given an opportunity to review the suspension order; however, no interim relief may be granted to the appellant herein. 3.1 It was further submitted that since the order of suspension is passed under clause 26 of the Principal Statutes, such order cannot be reviewed by the committee even if it wants to, inasmuch as, such order has not been passed under rule 10 of the rules. It was submitted that substitution of clause 26 of the Principal Statutes by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 does not affect the validity of the order which has already been passed. 3.2 Reference was made to the decision of the Supreme Court in the case of State of Punjab v. Harnek Singh , (2002) 3 SCC 481, wherein it has been held that the General Clauses Act has been enacted to avoid superfluity and repetition of language in various enactments. The object of that Act is to shorten the language of Central Act s, to provide as far as possible, for uniformity of expression in the Central Act s, by giving definition of series of terms in common use, to state explicitly certain convenient rules for the construction and interpretation of the Central Act s, and to guard against slips and oversights by importing into every Act certain common form clauses, which otherwise ought to be inserted expressly in every Central Act . In other words, the General Clauses Act is a part of every Central Act and has to be read in such Act unless specifically excluded. Even in cases where the principles of the Act do not apply, courts in the country have applied its principles keeping in mind the inconvenience that is likely to arise otherwise, particularly when the provisions made in the Act are based upon the principles of equity, justice and good conscience. Ms. Jani submitted that, therefore, keeping in mind the principles of the General Clauses Act , the action taken under the earlier Statutes would not lapse. It was further contended that the provisions of the rules would apply to the pending proceedings pursuant to the charge-sheet issued to the appellant herein, despite the fact that both, suspension order as well as the charge- sheet have been issued under the old provisions of the Principal Statues which stand substituted by the by the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 3.3 Reliance was placed upon the decision of a learned Single Judge of the High Court of Manipur in the case of Shri Palmei Langbanjao v. The State of Manipur, 2016 SCC Online Mani 7, wherein the court observed thus: "The suspension order was issued under Section 7 of the Police Act, 1861 and in the absence of any material that the suspension had really been issued under the provisions of Sub-Rule 2 of Rule 10 of Central Civil Servicess (CCA) Rules, this Court cannot come to the conclusion that merely because the provisions of Sub-Rule 6 and 7 of Rule 10 have not been followed, the impugned suspension order has become illegal and is liable to be quashed by this court." "14. In view of the above observations, the instant writ petitions being W.P. (C) No.638 of 2015 is disposed with the following directions: (a) The respondents shall review the suspension order dated 07- 02-2014 within a period of one month from the date of receipt of a copy of this order taking all factors into account and keeping strictly in mind the principles laid down by the Hon'ble Supreme Court in the case of Union of India v. Ashok Kumar Aggarwal (supra); (b) Issue an appropriate order, thereafter, with cogent reasons in case the suspension order is required to be extended for further period." It was submitted that if the court is inclined to hold that the provisions of the Central Civil Services (CCA) Rules would be applicable to the suspension order passed under clause 26 of the Principal Statutes, the court may adopt the course of action adopted in the above decision and direct the Review Committee to review the order within a period of one month in the interest of justice; however, no interim relief as prayed for be granted. ;