Central Administrative Tribunal - Mumbai
Kamlakar D Kamble vs Central Board Of Film Certification on 13 February, 2025
1 OA No.1061/2024
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.1061/2024
Date of Decision : 13th February, 2025.
CORAM: HON'BLE SHRI JUSTICE M.G. SEWLIKAR, MEMBER (JUDICIAL)
HON'BLE MR. SANTOSH MEHRA, MEMBER (ADMINISTRATIVE)
Shri Kamlakar D. Kamble
Age 52 years Occupation- Service,
220/3128/I, CGS Colony, Kane Nagar,
Antop Hill, Mumbai 400 037.
Mobile No.9892475727.
Email Id: [email protected]. ... Applicant
(By Advocate Shri H.G. Dharmadhikari a/w
Shri D.A. Bhalerao and Ms. Vidya Kamble)
Versus
1. The Union of India,
Through the Secretary, Ministry of Information and
Broadcasting, Shastri Bhavan, New Delhi 110 001.
(Copy to be served through P.O. C.A.T. Bench at Mumbai)
2. The Chief Executive Officer
Central Board of Film Certification
9th Floor, Films Division Complex,
24-Dr. G. Deshmukh Marg, Mumbai 400 026. ... Respondents
(By Advocate Shri N.K. Rajpurohit )
Page 1 of 33
2 OA No.1061/2024
(ORAL) ORDER
Per : Shri Santosh Mehra, Member (A)
The applicant has filed this OA seeking for the following reliefs:
"8(a) The Original Application may kindly be allowed. 8(b) The order of suspension dated 15th December, 2023 and subsequent orders of extension of suspension vide dated 12th March, 2024 , 10th June, 2024, 03rd September, 2024 etc passed by the respondents may be quashed and set aside. 8(c) The Respondents may be directed to pass the order to reinstate the applicant and give all the consequential benefits extended to it.
8(d) The Respondents may be directed to sanction and disburse the arrears of entitlements on such sanction within a stipulated time.
8(e) That, any other relief to which the applicant is entitled in the interest of justice may kindly be granted."
2. Facts in nutshell are as follows:
2.1 The applicant was working as Assistant Regional Officer at Central Board of Film Certification (CBFC) at Mumbai.
Based on the complaint given by a Tamil Film Actor Vishal, an FIR was registered by ACB/CBI on 04th October, 2023 under Sections Page 2 of 33 3 OA No.1061/2024 120-B IPC r/w 1, 7A of PC Act, 1988 (As amended in 2018) and substantive offences thereof against private persons Mrs. Merlin Menaga, Mrs. Jeeja Ramdas, Shri Rajan M and against some unknown public servants of CBFC, Mumbai and investigation of the case was commenced.
2.2 Pursuant to the registration of the offence, the Respondents vide CBFC's order No.C-13013/1/2023-Vig dated 15th December, 2024 placed the applicant under suspension. The suspension of the applicant has been regularly extended vide Orders dated 12th March, 2024, 10th June, 2024 and 04th September, 2024 as per the recommendations of the Review Committee, despite representation by the applicant. The applicant vide this OA has challenged his suspension and the subsequent extensions stating that they are against the extant DoPT OMs, CCS Rules and judgments of the Hon'ble Supreme Court and High Courts of India.
3. Learned counsel for the applicant submits that ACB/CBI on 04th October, 2023 vide RC No. RC0262023A0032 had Page 3 of 33 4 OA No.1061/2024 registered an FIR under Sections 120-B IPC r/w 1, 7A of PC Act, 1988 (As amended in 2018) against private persons Mrs. Merlin Menaga, Mrs. Jeeja Ramdas, Shri Rajan M and unknown public servants of CBFC, Mumbai. Neither the applicant was named in the FIR nor anything incriminating was found during the search carried out by the CBI in the office and residence of the applicant. Despite thorough interrogation done by the CBI of the applicant, he was neither arrested nor any charge-sheet has been filed against him till date by the CBI. The learned counsel for the applicant further stated that no trap was laid nor any money nor any other incriminating evidence was recovered either from the person of the applicant or his office or his residence.
3.1 Despite this, after a lapse of three months, without any justification, the applicant received the Order of Suspension dated 15th December, 2023. Subsequently, orders have been issued on 12th March, 2024, 10th June, 2024 and last on 04th September, 2024 extending the suspension of the applicant by 90 days every time by Page 4 of 33 5 OA No.1061/2024 the CEO/CBFC. The applicant made representation vide email dated 24th June, 2024 requesting the respondents for his reinstatement in service and all consequential benefits but no response has been received by the applicant from the respondents. 3.2 In his representation to the respondents, the applicant had invited their attention to DoPT office Memorandum No.11012/07/2016-Estt (A) dated 23rd August, 2016 regarding timely disposal of charge-sheets and also the directions of the Hon'ble Supreme Court of India in the case of Ajay Kumar Choudhary Vs. Union of India Through its Secretary & Anr. (2015) 7 SCC 291 wherein it was mentioned that the currency of suspension order should not extend beyond three months if the Memorandum of Charge/Charge-sheet is not served upon the delinquent officer within three months. He further stated that no Memorandum of Charge was served upon him till date and the orders of extension of suspension period without indicating Page 5 of 33 6 OA No.1061/2024 grounds for the same were in violation of the extant rules and the Hon'ble Supreme Court judgment.
3.3 According to learned counsel for the applicant, applicant's order of suspension was issued on 15th December, 2023 whereas the Charge Memo was issued on 8th November, 2024 i.e. after expiry of 329 days, which was well beyond the stipulated 90 days and hence the order of extension was unsustainable being contrary to the law of the land. Furthermore, grounds/reasons should be given for extension of Suspension, which has not been done. Placing reliance on Ajay Kumar Choudhary's case (supra), learned counsel for the applicant has cited extract of judgment which read as follows:
"......21. 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. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting Page 6 of 33 7 OA No.1061/2024 any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law. and would not be contrary to the interests of justice.." (underlining is ours) 3.4. The learned counsel for the applicant states that in pursuance of the judgement cited Supra, DoPT, Government of India vide F.No.11012/04/2016-Estt.(1) dated 23rd August, 2016 issued directions which are reproduced as below:
".......The undersigned is directed to refer to DoP&T's O.M. No. 11012/17/2013-Estt.A-III dated 3rd July, 2015 on the above-mentioned subject and to say that in a recent case, Ajay Kumar Choudhary vs Union of India Civil Appeal No. 1912 of 2015 dated 16/02/2015, the Apex Court has directed as follows:
"14 We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a Page 7 of 33 8 OA No.1061/2024 reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence........ Furthermore, the direction of the Central Vigilance Commission that pending criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
2. In compliance of the above judgement, it has been decided that where a Government servant is placed under suspension, the order of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the charged officer. As such, it should be ensured that the charge sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensure that charge sheets are issued in time.
3. It should also be ensured that disciplinary proceedings are initiated as far as practicable in cases where an investigating agency is seized of the matter or criminal proceedings have been launched. Clarifications in this regard have already been issued vide O.M. No. 11012/6/2007-Estt.A-III dated 21.07.2016.
(Underlining is ours) Page 8 of 33 9 OA No.1061/2024 3.5. Learned counsel for the applicant also placed reliance on the judgment of the Principal Bench of this Tribunal in OA No.1223/2018 dated 31st May, 2018. In this case, the Principal Bench of this Tribunal while citing the judgment laid down by the Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra) above and also the judgment passed by the Hon'ble Delhi High Court in the case of Government NCT of Delhi Vs. Dr. Rishi Anand, W.P.(C) 8134/2017 in its orders dated September 13, 2017, set aside and quashed suspension of the applicant beyond initial period of 90 days on the grounds that no Memorandum of charge or Charge- sheet was issued to the applicant.
3.6. Learned counsel for the applicant has further placed reliance on the judgment passed by the coordinate Bench of this Tribunal in the case of Sandeep Jot Singh Vs. Union of India & Anr. in OA No.503/2020 decided on 21st January, 2022. He has stated that the facts and circumstances of this case were very similar to the case of the applicant. In this case, against the applicant Dy. Page 9 of 33 10 OA No.1061/2024 Commission of Customs, Mundra, Gujarat, a case i.e. RC No.0292017 A0010 dated 18th September, 2017 was registered by the CBI, ACB, Gandhinagar under Section 120-B of IPC r/w Section 7 & 11 of Prevention of Corruption Act, 1988. The applicant was put under suspension on 29th September, 2017 under Rule 10(1) of the CCS (CCA) Rules, 1965 in consequence of the arrest on 27th September, 2017. Though, the applicant was released on bail on 08th December, 2017 his suspension was extended from time to time for three years. The applicant was issued a major penalty charge- sheet on 26th February, 2019, which was well beyond time period of 90 days, of his initial suspension. In this case, the Tribunal passed the following order:
"The present OA is accordingly partly allowed with following directions:
(i) Suspension of the applicant beyond initial 90 days is hereby set aside and quashed.
(ii) As a consequence, the impugned orders dated 21.12.2017, 18.06.2018, 17.06.2019, 10.12.2019, 11.06.2020 and 08.12.2020 (Annexure A/1 to A/6) are quashed and set aside.Page 10 of 33 11 OA No.1061/2024
(iii) As a consequence of quashing of the suspension, the applicant shall be reinstated within one month from the date of receipt of copy of this order.
(iv) The applicant shall be entitled to salary minus the subsistence allowance already received by him for the interregnum period, i.e from the date when his initial suspension ended after 90 days and till the date he is reinstated in service with simple interest @8%.
(v) Initial period of suspension shall be decided in accordance with the rules on the subject.
(vi) This order will not however, come in the way of the respondents in further proceeding with the memorandum of charges dated 26.02.2019 in accordance with law. "
3.7. Learned counsel for the applicant contends that since the facts and circumstances of the case at hand are exactly the same as mentioned in OA No.503/2020 (Supra), he is entitled to similar relief. He reiterates that neither in the Suspension Order nor in the various orders of extension of suspension, any grounds or justification or reasons has been provided which is also in violation of OM dated 02nd January, 2014 which reads as follows:
"......19. Serving of Charge Sheet etc.
a) Suspension order should normally indicate the grounds for suspension.Page 11 of 33 12 OA No.1061/2024
b) Where the suspension is on grounds of contemplated proceedings, charge sheet should be served upon the Govt servant within 3 months.
c) Where charge sheet is not served within 3 months, the reasons for suspension should be communicated to the Govt servant immediately on expiry of 3 months from the date of suspension."
(underlining is ours) 3.8. Learned counsel for the applicant also placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of ASSTT. COMMR., COMMERCIAL TAX DEPARTMENT Vs. SHUKLA & BROTHERS, 2010 (254) E.L.T. 6 (S.C.) in Civil Appeal No.3289 of 2010 decided 15th April, 2010. The relevant portion of the said order reads as under;
"13. The principle of natural justice has twin ingredients, firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the Judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of degree of an administrative authority may not provide reasons Page 12 of 33 13 OA No.1061/2024 like a judgment but the order must be supported by the reasons of rationality."
3.9 Learned counsel for the Applicant has further stated that the suspension order itself was vague, and was not in consonance with the sub clause of rule 10 (1) of CCS (CCA) Rules which 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-
(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...."
3.10. The learned counsel for the applicant has also cited following judgements in support of his contention:
"1. Amrit Foods Vs. CCE, 2005(190) E.L.T. 433 (S.C).Page 13 of 33 14 OA No.1061/2024
He further states that a person cannot be allowed to be under suspension for a period more than 270 days as per Clause (a) of second proviso to sub-rule 7 of amended Rule 10 of CCS (CCA) Rules, 1965 vide GSR 156 dated 19th October, 2022. Hence, in terms of this provision, the extension of suspension beyond 270 days from the date of order of suspension passed under Rule 10(1)(a) of CCS (CCA) Rules is not valid and hence needs to be set aside.
3.11. In this regard, he has drawn our attention to the following judgements:
a. Dr. Chandravanshi Yaduvanshi Manikanhaiya Vs. Union of India, passed by the CAT, Hyderabad Bench of this Tribunal in OA 507 of 2021 decided on 14th June, 2023.
b. M.Y.A Shaikh Vs. Union of India decided by this very Bench of the Tribunal in OA No.208/2019 dated 03rd May, 2019.Page 14 of 33 15 OA No.1061/2024
4. Respondents have filed reply. In the reply, the learned counsel for the respondents submits that as per Ministry of Information & Broadcasting, New Delhi's O.M. No. M. 11016/5/2023-DO(FC) dated 15th December, 2023, the CEO, CBFC in exercise of the power conferred in terms of Sub-rule 10(1) of Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Competent Authority placed Shri Kamlakar Kamble, ARO, CBFC, Mumbai under suspension w.e.f. 15th December, 2023. He further submits that his suspension period had been extended on 03 occasions till 01st December, 2024 on the recommendation of Review Committee constituted in accordance with rule 10(6) & (7) of CCS (CCA) Rules, 1965. Ministry of Information & Broadcasting, New Delhi vide letter No. M-11016/2/2023-DO(FC)-Part (1) dated 13th May, 2024 has directed to initiate disciplinary action against Shri Kamlakar Kamble, ARO, CBFC, Mumbai.
4.1 Learned counsel for the respondents further submitted that the issue was followed up with CBI regularly vide letter dated Page 15 of 33 16 OA No.1061/2024 12th March, 2024 and subsequent reminders dated 08th April, 2024, 07th May, 2024 and 10th June, 2024 to provide documents required for initiating disciplinary proceedings against Shri Kamlakar Kamble, ARO (under suspension), CBFC, Mumbai. In response, O/o DIG/Head of the Branch, Central Bureau of Investigation, Anti-Corruption Branch, Bandra, Mumbai vide letter no. RC 0262023A0032/ CBI/ ACB/ Mumbai/1982 dated 02nd August, 2024 (received on 19th August, 2024) provided CBI Report (Confidential) and certified copies of documents and statement of witnesses recorded u/s 161 Cr.P.C., list of witnesses, Documents and Articles etc. Accordingly, Charge Sheet vide Memorandum no. C- 13013/1/2023-Vigilance dated 08th November, 2024 has been served upon Shri Kamlakar Kamble, ARO.
4.2 Pointing out that the Memorandum of Charge has already been served upon the applicant on 08th November, 2024 and, therefore, the OA has become infructuous, learned counsel for the respondents has also cited the following para of the judgment Page 16 of 33 17 OA No.1061/2024 of Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (supra):
".....22. So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review".
4.3 He submits that in the present case also, as the charge sheet has already been served on the applicant for the departmental inquiry on 08th November, 2024, therefore, the applicant is not entitled for the relief claimed and has prayed for dismissal of the OA.
5. Applicant has filed Rejoinder. In his rejoinder he has submitted that the charges framed in Annexure -1 (Article I and II) are concocted, without any basis and substance and he denies them completely. During the said period, applicant was working in the capacity of Asstt. Regional Officer and has worked within the limits of the powers, the work and the responsibilities allocated to Page 17 of 33 18 OA No.1061/2024 him. The applicant submits that he did not do any unethical work or any work unbecoming of a Government Servant. He stated that he was nowhere involved in the process of acceptance of applications of the said films nor in issuance of Film Certificate, nor movies were examined by him, nor the Certificate was signed by the applicant. He had no powers nor discretion in these matters and, therefore, the question of misconduct or accepting bribes does not arise. According to him, the entire case was a result of mischief by some private parties who were trying to scandalise the officers of the CBFC.
6. Respondents have filed Sur-rejoinder and stated that the charges were framed based upon the documents submitted by CBI after detailed investigation which clearly mentioned substantial incriminating evidence including CCTV footages which fully substantiate the charges framed in the Article. The charges of obtaining or attempting to accept Page 18 of 33 19 OA No.1061/2024 gratification deserves initiation of Disciplinary proceeding under rule 14 of CCS (CCA) Rule, 1965.
6.1 The learned counsel for the respondents has also pointed out that not only the charge memo has been served upon the applicant, but the enquiry proceedings have also been initiated. Orders have been issued vide Order No.C-14012/1/2025- Vigilance/2 dated 07th January, 2025 appointing Shri Gopal Sadhwani, Retired Joint Secretary as the Enquiry Officer. The preliminary hearing enquiry proceedings was also conducted on 20th January, 2025 and subsequently vide email dated 03rd February, 2025, the Charged Officer was allowed to inspect the listed documents. In view of above, he states that the OA is the devoid of merits and should be dismissed.
7. The learned counsel for the respondents has also invited our attention to the judgement of the Madurai Bench of the Hon'ble Madras High Court in the case of The Superintending Engineer & Ors. Vs. Mohan Kumar in WA (MD) No.1827 of 2021 Page 19 of 33 20 OA No.1061/2024 delivered on 20th January, 2022. In this case, the Hon'ble High Court of Madras, referring to the DoPT instructions dated 26th April, 2016, has observed as follows:.
"....16. It was instructed that the time limit of three months on suspension cases is applicable only to the cases arising out of departmental disciplinary enquiries pertaining to non-vigilance and/or any non- criminal cases and the said time limit is not applicable to suspension of an employee facing criminal case or grave corruption charges pending against him.
(underlining is ours)
8. Furthermore, para 20 of the same judgement mentions as follows:
"......20. In the case of Bimal Kumar Mohanty (supra), the Apex Court held that suspension is not a punishment, but only one for forbidding or disabling an employee to discharge the duties of office or post held by him. It is with the direction that each case may be considered on its facts and taking into account the gravity of the offence or the misconduct. The interference with the order of suspension should not be driven in reference to a judgment, but needs to be determined on facts and after considering the rules governing the delinquent. Judicial review in such matters should be minimal. In the instant case, the allegation against the delinquent is quite serious, as he not only demanded but accepted bribe and was caught red-handed by the Anti-Page 20 of 33 21 OA No.1061/2024
Corruption Department. The aforesaid were the relevant facts, but were not considered by the learned Single Judge while causing interference with the order of suspension. It is even after ignoring the earlier judgment of the Division Bench in the case of A. Srinivasan (supra), wherein it was categorically held that the judgment of the Apex Court in the case of Ajay Kumar Choudhary (supra) does not evolve a general principle for causing interference with the order of suspension if charge-sheet is not served or charge memo is not filed within three months of the order of suspension. The finding of the Division Bench of this Court in the case of A.Srinivasan (supra) has even been ignored, though binding in nature."
(underlining is ours)
9. The learned counsel for the respondents has also placed reliance on the judgement of the High Court of Delhi at New Delhi in the case of Vikash Kumar Vs. Union of India & Ors., WP (C) 16499/2022 dated 01st September, 2023. The relevant portions of the judgement are as follows:
".......9. Observations of the Hon'ble Supreme Court of India in State of Orissa v. Bimal Kumar Mohanty, 1994 (1) L.L.N. 889, after considering the ratio of earlier decisions may be beneficially referred in this regard:
............... Suspension is not a punishment but is only one of forbidding or disabling an employee to discharging the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the Page 21 of 33 22 OA No.1061/2024 members of service that dereliction of duty would pay fruit and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent haying had the opportunity in office to impede the progress of the investigation or inquiry, etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge."
10. xxx xxx xxx
11.......... This Court relying upon earlier orders passed in Govt. NCT of Delhi v. Dr.Rishi Anand, W.P.(C) 8134/2017 decided on September 13, 2017 declined to interfere with the continued suspension order of the petitioner considering the allegations against the petitioner and held that there was serious and valid consideration to justify the continued suspension of the petitioner. The observations in para 17 to 19 in Dr. Rishi Anand (supra) are also apt to be noticed and clearly spell out that power of competent authority to pass orders of suspension have not been extinguished in Ajay Kumar Choudhary (supra) merely because the charge-sheet is not issued within three months of suspension but the said power can be exercised if good reasons are forthcoming:
Page 22 of 33 23 OA No.1061/2024
"17. It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons............." On a reading of Ajay Kumar Choudhary (supra), we are of the view that the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the government servant - before, or after the service of the charge sheet - if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months - if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/ charge-sheet is not issued within three months of suspension, the suspension of the government servant shall automatically lapse, without any further order being passed by the Government. No such consequence - of the automatic lapsing of suspension at the expiry of three months if the charge memo/ charge-sheet is not issued during that period, has been prescribed.
................................................
18. The direction issued by the Supreme Court is that the currency of the suspension should not be extended beyond three months, if the charge memorandum/ charge-sheet is not issued within the period of 3 months of suspension. But it does not say that if, as a matter of fact, it is so extended it would be null and void and of no effect. The power of the competent authority to pass orders under Rule 10(6) of the CCS (CCA) Rules extending the suspension has not been extinguished by the Supreme Court. The said power can be exercised if good reasons therefor are forthcoming.Page 23 of 33 24 OA No.1061/2024
xxx xxx xxx
34. For the foregoing reasons, the reference is answered by holding that:
(i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary, supra, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/chargesheet has not been served within three months, or if memorandum of charges/chargesheet is served without reasoned order of extension. (ii) The judgment in R. Balaji, supra, has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam.
(underlining is ours)
10. We have heard the averments of the learned counsel the Applicant and the learned counsel for the Respondent, closely gone through all the documents and records brought to our notice and have given thoughtful consideration to the same.
11. To mention in brief, the relief sought by the applicant as indicated in para 1 are on the following grounds:
1. Grounds of suspension were not mentioned in the Suspension Order.Page 24 of 33 25 OA No.1061/2024
2. The Memorandum of charge was not served upon the applicant, within 30 days which was in violation of the judgement of Hon'ble Supreme Court of India in the case of Ajay Kumar Choudhary (supra) and the OM of DoPT dated 23rd August, 2016.
3. The subsequent three orders of extension of suspension did not mention the grounds/reasons for the same and hence, they were also in violation of the extant judgements and DoPT OMs cited (supra).
12. Absence of Grounds for suspension and their extension:
The applicant was suspended by the respondents on 15th December, 2024 , on the basis of a report submitted by CBI on charge of corruption. While there appears to have been some delay in bringing the evidence and grounds for suspension on record, nevertheless, it is very much available. The FIR, the Preliminary enquiry report of the CBI, the CCTV videos footages etc. are sufficient grounds for the initiation of proceedings including suspension of the applicant.Page 25 of 33 26 OA No.1061/2024
All the three orders of the extension of the suspension dated 12th March, 2024, 10th June, 2024 and 04th September, 2024 clearly indicate that the same was carried out on the basis of the recommendations of the Review Committee, which is as per the prescribed procedure. It is seen that the Memorandum of Charge Memo which has been served upon the applicant is very detailed and self-explanatory. It is comprised of Five detailed Annexures, spread over 31 pages. Annexure II, indicating the two articles of Charges are properly delineated and clearly explain the financial transactions related to the criminal case, which constitute the grounds for suspension. Annexure III gives the list of as many as 210 documents and Annexure IV gives names of 26 PWs. Hence, we reject the contentions that grounds of Suspension and subsequent extensions, have not been provided to the applicant, though they could have been provided to him earlier.Page 26 of 33 27 OA No.1061/2024
12.1 Non-service of the Memorandum of Charge within 90 days in violation of the extant Rules & Judgements of the Apex court :
The averments of the LCA & LCR have been brought on record and discussed at length above and need not be repeated here . The Memorandum of charge was served upon the applicant on 08th November, 2024 , i.e after 329 days of the order of Suspension .
This is in conformity with the GSR No 156 dated 19th October, 2022, which is spelt out below for ease of reference :
"1. Short title and commencement: (1) These rules may be called the Central Civil Services (Classification, Control and Appeal) Amendment Rules, 2022.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Central Civil Services (Classification, Control and Appeal) Rules, 1965, in rule 10, in sub-rule (7), for the proviso, the following provisos shall be substituted, namely:-
"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 detention and in such case the ninety-days' period shall be computed 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:Page 27 of 33 28 OA No.1061/2024
Provided further that in a case where no charge sheet is issued under these rules, the total period, under suspension or deemed suspension, as the case may be, including any extended period in terms of sub- rule (6) shall not exceed, -
(a) two hundred seventy days from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (a) of sub-rule (1); or
(b) two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause (b) of sub-rule (1) as the case may be; or
(c) two years from the date the Government servant detained in custody is released or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later, in the case of deemed suspension under sub-rule (2).".
(underlining is ours)
13. As the Order of Suspension of the applicant and their subsequent extensions were based on a criminal case registered against him by CBI under the PC Act , 1988 ( as amended from time to time ), it clearly falls within the purview of Section 2 (b) of the GSR 156 , with reference to Clause (b) of Sub rule (1) of Rule 10 of CCS (CCA) Rules which reads as follows :
"10. Suspension (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other Page 28 of 33 29 OA No.1061/2024 authority 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."
(underlining is ours) The Memorandum of Charge was served upon the applicant after lapse of 329 days from the date of Order of Suspension, which is well within the prescribed period of two years as mentioned in Rule 10(1)(b) (supra), since a criminal case was registered and pending against the applicant.
14. It is also pertinent to mention that the judgment of the Hyderabad Bench of this Tribunal in the case of Dr. Chandravanshi Yaduvanshi Manikanhaiya (supra) is not applicable here as in that case the applicant was kept under suspension from 25th October, 2018 to 01st January, 2023 which was more than four years. Hence, Page 29 of 33 30 OA No.1061/2024 it was against the GSR 156 which indicates maximum period of suspension to be two years.
15. Likewise, the judgment of this very Tribunal in OA No.208/2019 in the case of M.Y.A. Shaikh (supra) is also not applicable here as it was passed on 03rd May, 2019 where the OM dated 23rd August, 2016 was applicable in the light of the judgment passed by the Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra). Subsequently, the CCS (CCA) Rules were amended vide GSR 156 dated 19th October, 2022, the period of suspension for those involved in criminal cases was extended upto two years.
16. It is also pertinent to mention here that even in the frequently quoted judgement by the learned counsel for the applicant in Ajay Kumar Chaudhary's case (supra), the extract is as follows:
"So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer...."Page 30 of 33 31 OA No.1061/2024
17. It is also pertinent to mention that the Hon'ble Madras High Court in the case of The Superintending Engineer & Ors. Vs. Mohan Kumar (supra) has stated as follows:
".......16. It was instructed that the time limit of three months on suspension cases is applicable only to the cases arising out of departmental disciplinary enquiries pertaining to non-vigilance and/or any non- criminal cases and the said time limit is not applicable to suspension of an employee facing criminal case or grave corruption charges pending against him.
(underlining is ours) 17.1 The above judgment in para 20 also mentions as follows:
"......20. ..............The interference with the order of suspension should not be driven in reference to a judgment, but needs to be determined on facts and after considering the rules governing the delinquent. Judicial review in such matters should be minimal. In the instant case, the allegation against the delinquent is quite serious, as he not only demanded but accepted bribe and was caught red-handed by the Anti- Corruption Department.
(underlining is ours) Page 31 of 33 32 OA No.1061/2024
18. It is also be noted that High Court of Delhi at New Delhi in the case of Vikash Kumar Vs. Union of India (supra) has held as under:
" 9.............The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge."
11........ power of competent authority to pass orders of suspension have not been extinguished in Ajay Kumar ..............
"17. It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons............." On a reading of Ajay Kumar Choudhary (supra), we are of the view that the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the government servant - before, or after the service of the charge sheet - if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months - if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/ charge-sheet is not issued within three months of suspension, the suspension of the government servant shall automatically lapse, without any further order being passed by the Government.....................Page 32 of 33 33 OA No.1061/2024
18. The direction issued by the Supreme Court is that the currency of the suspension should not be extended beyond three months, if the charge memorandum/ charge-sheet is not issued within the period of 3 months of suspension. But it does not say that if, as a matter of fact, it is so extended it would be null and void and of no effect.
(underlining is ours)
19. In view of the above, it is felt that the respondents have issued the orders of Suspension and subsequent orders of extension in total conformity with the laid down judgment of the Hon'ble Apex Court and Hon'ble High Courts of India and the coordinate Benches of this Tribunal. They are also in consonance with Rule 10(1) of CCS (CCA) Rules, OM and GSR 156 dated 19th October, 2022.
20. In view of the above facts and circumstances, the OA is liable to be dismissed and hence it is dismissed. Pending MAs, if any, stand closed. No costs.
(Santosh Mehra) (Justice M.G. Sewlikar)
Member (A) Member (J)
dm.
Digitally signed by Deepti Ganesh Munarshi
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