Union Of India vs Ashiquzzaman ... Opposite Party on 31 July, 2020

[Cites 14, Cited by 0]

Orissa High Court

Union Of India vs Ashiquzzaman ... Opposite Party on 31 July, 2020

Equivalent citations: AIRONLINE 2020 ORI 258

These writ applications as at (A) and (B) above have been filed in assailing the common order dated 31.01.2020 passed by the Central Administration Tribunal, Cuttack Bench, Cuttack (in short, 'the Tribunal') in Original Application Nos.260/617/2019 and 260/693/2019 wherein the opposite parties before us were the respective applicants.

Since both the writ applications arise out of a common order and involve identical questions of law; on consent of learned Counsel for the parties, those have been taken up together for hearing at this stage of admission for their final disposal.

2. The facts leading to the present proceedings under (A) and (B) as culled out from the pleadings as well as the documents annexed thereto are as follows:-

(I) The opposite party as at (A) is presently posted as Deputy Commissioner, CGST in the Office of the Chief Commissioner, Central Goods and Services Tax, Rourkela, Odisha and under suspension. Prior to that, he was working as Deputy Commissioner, Special Intelligence Bureau (in short, 'SIIB') at Air Port Special Cargo (ASPC) Commissionerate, Mumbai Customs Zone-III, Mumbai. During then, special intelligence developed by DRI, MZU indicated that fourteen (14) consignments of 'Rough Diamonds' of very low quality, were being =3= imported by two IEC holders, i.e., namely M/s.Antique Exim Private Limited and M/s.Tanman Jewels Private Limited at Bharat Diamond Bourse (BDB), Mumbai declaring to be of the value of Rs.156.00 crores and that has been accepted by the panel of experts valuers. A team of officers from DRI thus intercepted those fourteen (14) consignments. Revaluation of the imported diamonds was made and accordingly, assessed to be of the value of Rs.1.2 crores. It was thus found that rough diamonds of cheap quality; being procured at lesser price being grossly overvalued were being imported from Hong Kong in connivance with exporters in these countries. On arrival in BDB, Mumbai, the opposite party with the assistance of some members of the panel of valuers of diamond, had got the consignment verified and expressed their satisfaction as to the value of the same a just and proper. It was thus detected that the over-valuation in that case was to the tune of Rs.150.00 crore. Basing upon the post consignment of some IEC holders, it was further ascertained that a sum of Rs.2000.00 crores have been illegally laundered/transferred to overseas destination. Four persons were arrested in the case so far. Recovery of some of demand drafts and the cash have been made during subsequent raids and the DRI further found an abnormally huge cache of cheque books, Aadhar Cards, PAN Cards from one of those arrested persons. The petitioner vide order dated 19.07.2018 was transferred as the Deputy Commissioner, GST & CE Commissionerate, Rourkela, where he is there at present. It was ascertained in course of investigation that the opposite party with others had also played the role in the illegal import of highly overvalued diamonds at BDB, Mumbai. So, in contemplation of departmental proceeding; he was placed =4= under suspension by order dated 25.10.2018 with immediate effect. The period of suspension was further extended by order dated 21.01.2019 and 19.07.2019 respectively for a period of 180 days on each occasion. The opposite party finally challenged the last order of extension of the period of his suspension passed on 19.07.2019.

The above move was contested by the present petitioners in asserting that the order of extension of suspension as passed on 19.07.2019 for a period of further 180 days is well within the four corners of law.

It is pertinent to state here that after that order of extension of suspension dated 19.07.2019 for 180 days which was called in question before the Tribunal; by order dated 15.01.2020, said period of suspension has been further extended for 180 days w.e.f. 20.01.2020 and the period has also expired on 17.07.2020. The Tribunal although decided the application on 31.01.2020; this fact of passing of order on 15.01.2020 as it appears had not been brought to its notice.

(II) The opposite party as at (B) is now posted as Deputy Commissioner in the Office of the Chief Commissioner, Central Goods and Services Tax, C.R. Building, Rajaswa Vihar, Bhubaneswar and under suspension. Prior to that, he was working as Deputy Commissioner CGST in the Office of the Chief Commissioner of CGST, Mumbai Zone, Mumbai and before that was posted as Deputy Commissioner of Customs, Commissionrate, NS-III, Customs, Mumbai Zone-II.

During his incumbency as Deputy Commissioner of Customs at Mumbai, on the basis of the written complaint dated 25.04.2018, the Central Bureau of Investigation (CBI) has registered a criminal case against him, i.e., RC/BA1/2018/A0012 dated =5= 29.04.2018 for commission of offence of criminal conspiracy and receipt of illegal gratification as also criminal misconduct under section 120-B of the IPC and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. In the said case, the opposite party and six others were arrested by the CBI on 30.04.2018. The petitioner was released on bail by the order passed by the learned CBI, Special Judge, GR Mumbai and remained in custody till 14.05.2018. In view of the above by order dated 11.05.2018, the opposite party was placed under suspension with effect from 30.04.2018, the date of his arrest and thereafter by order dated 21.08.2018, the opposite party as was transferred from Mumbai to Bhubaneswar in the State of Odisha. Said order of suspension dated 11.05.2018 has been extended from time to time on the recommendation of the Suspension Review Committee vide orders dated 23.07.2018 and 22.01.2019; each time for a period of 180 days. Again, on 22.07.2019, basing upon the recommendation of said Committee, the period of suspension was extended for further 180 days with effect from 24.07.2019. The opposite party had submitted two representations dated 22.07.2019 and 18.10.2019 to the Chief Vigilance Officer, Central Board of Indirect Taxes & Customs, Department of Revenue, Ministry of Finance, Government of India with a prayer for revocation of his suspension which have been taken note of in the order dated 15.01.2020. The petitioner moved the Tribunal in assailing the last order of extension of the period of suspension passed on 22.07.2019.

It is pertinent to state here that after that order dated 22.07.2019 extending the suspension period for 180 days; again by order dated 15.01.2020, the period of suspension has been extended for 180 days with effect from 22.01.2020.

=6= The Tribunal although decided the application on 31.01.2020; this fact of passing of order on 15.01.2020; as it appears had not been brought to its notice. As seen from the last order of extension of period of suspension passed on 15.01.2020, the said extended period has also expired on 17.07.2020.

3. The Tribunal has allowed both the Original Applications having taken note of certain decisions of the Principal Bench of the Tribunal passed in O.A.Nos.915 and 1224 of 2018 as well as the decision of the Apex Court in the case of Ajay Kumar Choudhury -v- Union of India through its Secretary and another; AIR 2015 SC 2389. At paragraph-15 of the impugned judgment, followings have been stated which appears to have persuaded the Tribunal to finally allow the applications :-

"There is no doubt that Rule-10(6) of CCS (CCA) Rules, 1965 empowers the Competent Authority to extend suspension order of a Government employee. But the same should be based on cogent and justifiable reasons. Admittedly, the headquarters of both the applicants have been shifted to the jurisdiction of the authorities in the State of Odisha. Neither in the orders extending the suspension of the applicant nor in the counter- replies filed in both the OAs, there has been any whisper made by the Respondents that in case the orders of suspension are revoked there is every possibility of the applicants to tamper the evidence and influence the witnesses in order to put a spanner in the process of inquiry. The object of placing a Government employee under suspension is with a view to keeping him/her away from the duties so that he/she cannot not be able to tamper the evidence or influence the witness based on which charges are sought to be established. By shifting of headquarters of both the applicants, such an apprehension appears to be out of place. Respondents have also not adduced any justifiable reason as to why there has been delay in issuing charge-sheets to both the applicants. Besides the above, the =7= recommendations made by the Review Committee for extension of the duration of suspension of the applicants appear to be based on no good and sufficient reasoning. As a matter of course, in the absence of any memorandum of charge being issued to the applicants, although these facts ought to have been considered by the Competent Authority while extending the period of suspension, the same have not been considered at all. Therefore, we are to conclude that even if Rule-10(6) of CCS (CCA) Rules, 1965 authorizes the Competent Authority to extend the duration of suspension beyond a period of 90 days, that extension by no stretch of imagination could be bereft of good and sufficient reasons."

With the conclusion, as afore-stated, the following orders have been passed:-

"In view of this, following the ratio decided by the CAT, Principal Bench, cited supra, we make the following orders:

(i) Orders of suspension in respect of the applicants in both the OAs beyond the initial period of 90 days are quashed and set aside;

(ii) As a consequence of quashment of the orders of suspension, the applicants shall be reinstated in service within a period of 45 days from the date of receipt of this order;

(iii) The applicants shall be entitled to salary minus the subsistence allowance already received by them for the interregnum period, i.e. from the respective date(s) when their initial suspension ended after 90 days and till the date(s) they are reinstated in service;

(iv) The treatment of the initial period of suspension up to 90 days shall be decided in accordance with the rules on the subject; and

(v) This order will not stand in the way of the Respondents to proceed against the applicants by issuing Memorandum of Charges."

4. Mr. Sanjib Swain, learned counsel for the petitioners submitted as under:-

=8=

(i) the Tribunal having held that as provided in rule-10(6) of CCS (CCA) Rules, 1965, the competent authority has all the power to extend the suspension order of a Government employee, it was not within the Tribunal's domain, to look into the sustainability of the reasons as assigned being cogent or justifiable in accepting the report of the Suspension Review Committee which according to him, is beyond the purview and scope of judicial review;

(ii) the Tribunal has dealt the matter in routine manner and arrived at an erroneous conclusion that the reasons assigned for extension of suspension of the petitioners are not good and sufficient. The view taken by the competent authority on the report of the Suspension Review Committee, is based upon cumulative assessment of all the attending circumstances and therefore, the Tribunal has erred in law in substituting its view that those reasons are not cogent and justifiable;

(iii) the facts and circumstances of the cases, more importantly that of the Ajay Kumar Choudhury Vrs. Union of India; through its Secretary and another (supra) relied upon by the Tribunal being completely distinguishable from the cases in hand; the principle settled therein having no universal applicability are not attracted for the purpose in these cases. Reliance has been placed on the decision of Delhi High Court in case of Government of NCT of Delhi Vrs. Dr. Rishi Anand; 2017 SCC Online Del 10506 and that of this Court in case of Bishnu Prasad Sahoo Vrs. State of Odisha & Others; 2017 SCC Online Ori 416.

(iv) the disciplinary proceeding against the opposite party of the writ application as at (A) when is still under contemplation as also the enquiry to collect all the relevant materials is still in =9= progress; the order of extension of the period of suspension of said opposite party is free from any legal infirmity;

Charge-sheet in the meantime has already been filed in the criminal case after grant of sanction although no charge memo has been placed in initiating the departmental proceeding against the opposite party in the writ application as at (B). Keeping in view the serious nature of the offences said to have committed by the opposite party and its affect in general over the functioning of the administration of the department, the order of extension of the period of suspension of the service of said opposite party is not to be found fault with; and

(v) the opposite parties when had only questioned the order of extension of suspension passed on 19.07.2020 and 22.07.2020; the Tribunal has committed grave error in quashing all the previous orders of extension of the period of suspension beyond the initial period of 90 days.

5. Mr. Prateek Tushar Mohanty, learned counsel for the opposite parties in refuting the above submissions of the learned counsel for the petitioners has placed the followings in support of the orders passed by the Tribunal which have been impugned in the present writ applications:-

(i) that the opposite party in the writ application (A) has been placed under suspension by order dated 25.10.2018 which has been subsequently extended from time to time; each time for a period of 180 days. Despite the same even at the time of the last order of extension of the period of suspension which is now placed to have been passed on 15.01.2020 by extending the period of suspension for 180 days with effect from 20.01.2020 and thereafter, the same stage = 10 = still continues that a disciplinary proceeding against the said opposite party is under contemplation. There being no other noticeable development, in the matter of continuance of suspension of the opposite party (A), mere reason that the investigation is pending with the CBI cannot be sustained when even no departmental proceeding has yet been initiated by serving copy of charge memo after lapse of more than one and half year.

In respect of the opposite party in the writ application (B), the last order of extension of period of suspension is dated 15.01.2020, charge sheet has of course been filed before the competent court after grant of sanction for prosecution. Here in the case, the opposite party has been placed under suspension with effect from 30.04.2018. The extension of the period of suspension from the very beginning is being ordered from time to time in a routine manner and it would be evident from the order of extension of period of suspension of the opposite parties, which have been impugned in the Original Application before the Tribunal. The last order dated 15.01.2020 would show that the Suspension Review Committee has made the recommendation for such extension without application of mind and taking cognizance of some facts, which are wholly irrelevant for the purpose. When admittedly by now the opposite party had remained under suspension for a period of about two years and two months;

(ii) that principles of laws relating to the continuance of period of suspension of a Government employee have been well settled in catena of decisions of the Apex Court. In case of Ajay Kumar Choudhury (supra) and State of Tamil Nadu v. Pramod Kumar; Civil Appeal No.8427-8428 of 2018 arising out of SLP (C) No.12112- 12113 of 2017 decided on 21.08.2018; while frowning upon the practice of a protracted suspension of a Government employee, it has been said that suspension must necessarily be for a short duration.

= 11 = Even where allegations are serious in nature, always it must not be the need of continuance of the suspension till end of the criminal trial;

(iii) that in both the cases, the reasons assigned for the purpose of continuance of period of suspension of the opposite parties are wholly unacceptable as would be evident from all those orders which find mention of the view taken by the Suspension Review Committee indicating the facts situation and the circumstances;

(iv) that in so far as the opposite party of writ application (B) is concerned, merely for the reason that charge sheet has been filed in the criminal court, the period of extension of suspension ought not to be extended and there the consideration should revolve round the facts and circumstances, in order to arrive at the satisfaction that joining in the work by employee would not only seriously affect the administration but also influence the criminal trial, which are non-existent in the present case of the opposite party of writ application (B). Two other Group-B officers namely, (1) Manish Kumar and (2) Akshat Rathore, both being Preventive Officers, were at the relevant time of detection by the Revenue Intelligence, have also been arraigned as accused persons. They were also placed uspension and now sanction for their prosecution having been granted; charge-sheet against them has also been filed. But the order of suspension which had been passed against them has not been extended further by two separate orders both dated 16.01.2020, as per the recommendation of the Suspension Review Committee. Learned counsel for the opposite party has produced copies of those two letters along with written argument which are taken on record. In such situation while not extending the suspension Group-B Officers, who are also facing the same criminal trial with the opposite party of the writ application B, the order extension of suspension as against, this opposite = 12 = party of writ application (B) is highly discriminatory which rather expose that the reasons assigned for said extension are not at all justified; and

(v) the opposite party in the writ application (A) has remained under suspension with effect from 30.04.2018 and neither any charge sheet has been filed in any criminal case showing him an accused so as to face the criminal trial nor any departmental proceeding has been initiated being served with the charge memo. Therefore, the reasons assigned for the extension of the period of suspension which are just the repetitions do not sand to scrutiny.

In both the cases, the Tribunal, therefore, did commit no mistake in holding the extension of period of suspension of the opposite party beyond the initial period of ninety days as untenable in the eye of law.

6. On the above arrival submissions; the issues arises for consideration relates to the continuance of opposite parties under suspension.

The opposite party at (A) was placed under suspension with effect from 25.10.2018 under Rule 10(1)(a) of the Central Civil Services (Classification Control and Appeal) Rules, 1965 (for short; CCS (CCA) Rules) which is still continuing whereas the opposite party at (B) was placed under deemed suspension with effect from 30.04.2018 under Rule 10(2)(a) of the CCS (CCA) Rules for being in custody for more than 48 hours. Periodic reviews were conducted for their continuance under suspension. On the recommendation of the Review Committee, the suspension of the opposite party at (A) has been extended for three times and that of the opposite party at (B) for four times which include the last order dated 15.01.2020 that has been made during pendency of = 13 = the Original Applications before the Tribunal. Every time the recommendations of the Committee have not favoured for their reinstatement.

In so far as the case of the opposite party as at (A), the departmental proceeding is still under contemplation and it is said that the matter is still under investigation to ascertain the involvement/role of said opposite party. In respect of the opposite party at (B), departmental proceeding is yet to commence and no charge memo has been placed against him. Its only that the investigation of the criminal case since has been completed, sanction for prosecution having been granted, now the charge-sheet has been filed in the competent court and thus the criminal trial is pending against him and others.

The opposite party at (A) has been under suspension for a period of about one and half year and the other opposite party at (B) for a period of more than two years. Both have been transferred from the place of their posting as they were on the date when the allegations were leveled detection was made and in fact now they are in the State of Odisha.

At this stage, it cannot be said that the allegations made against the opposite parties are not serious in nature. However, the question stands as to if the continued suspension of the opposite parties for a prolonged period; one in contemplation of a departmental proceeding and the other, for the pendency of the criminal trial where the charge-sheet has been filed recently is justified.

7. In case of Ajay Kumar Choudhury (supra); the appellant was suspended on 30.09.2011 and continued thereafter with its first extension on 28.08.2011 for a period of 180 days. Thereafter, the extension was repeated thrice.

= 14 = The Tribunal saying that no employee could be indefinitely suspended finally directed that in case no charge memo was issued to the appellant on or before 29.06.2013, he would be entitled to be reinstated in the service. This order was assailed by the Union of India on the ground that the Tribunal had no power to give a direction circumscribing Government's power to continue the suspension. The High Court held that the Tribunal by directing as above, has substituted the judicial determination to that of the authority possessing the power as to the decision was rational to continue with the suspension. So the writ application filed by the Union of India was allowed directing for passing of appropriate order as to whether it wishes to continue, or not, with the suspension having regard to all relevant factors. The aggrieved Officer then carried the matter to the Supreme Court. It would be profitable to place here the relevant paras of the judgment which read as under:-

              "xxxx           xxxx            xxxx            xxxx           xxxx
              xxxx            xxxx            xxxx            xxxx           xxxx

11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.

12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity".

                             = 15 =




xxxx           xxxx           xxxx            xxxx           xxxx
xxxx           xxxx           xxxx            xxxx           xxxx

"20. It will be useful to recall that prior to 1973, an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure, 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond a period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations of the Division Bench in Raghubir Singh v. State of Bihar (1986) 4 SCC 481 and more so of the Constitution Bench in Antulay (1992) 1 SCC 225, we are spurred to extrapolate the quintessence of the proviso to Section 167(2) CrPC, 1973 to moderate suspension orders in cases of departmental/disciplinary enquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a memorandum of charges/charge-sheet has not been served on the suspended person. It is true that the proviso to Section 167(2) CrPC postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.

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 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. 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 = 16 = 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"

8. In case of Pramod Kumar (supra), the Officer concerned had assailed his suspension before the Tribunal as well as the charge memo received by him.

The Tribunal while revoking the suspension repelled the contentions to set aside the charge memo. So, the writ application was filed by the Officer; a member of Indian Police Service allotted to the State of Tamil Nadu. At the same time, the State had also questioned the order of revocation of suspension. The High Court upheld the order of the Tribunal revoking the suspension and further quashed the charge memo, declaring it to be nonest in law. In the State's appeal, the Apex Court although confirmed the order as to the quashing of the charge memo for non-

observance of mandatory requirement of All India Services (Disciplinary and Appeal) Rules, 1969, yet gave the liberty to the Disciplinary Authority to issue a charge memo afresh in accordance with the Rule. Next, taking the long period of suspension; the Officer enjoying liberty by virtue of the order of bail without violating the condition with any attempt to tamper with evidence have been taken into account. On the face of all the above factors and further keeping in view that the last order of extension of suspension had been passed on the basis of the minutes of the Review Committee that the Officer was capable of exerting pressure and influencing witnesses as also the likelihood of misusing the office in case of his reinstatement; has come to conclude that no useful purpose would be served by continuing the Officer under the suspension any longer. It however been observed = 17 = that the High Court that the State has all the liberty to appoint the Officer in a non-

sensitive post.

9. In case of Dr. Rishi Anand (supra); the Officer concerned was placed under suspension in exercise of Rule-10(1) of the CCS (CCA) Rules. It stood extended for 180 days. The departmental proceeding was initiated against him by issuance of charge memo. His suspension was further extended on two occasions.

So the officer approached the Tribunal which found favour with the prayer of revocation of the suspension of the Officer. The matter being carried to the Delhi High Court; ultimately the order as to revocation of suspension was reversed and the Court directed that in case, suspension of the Officer is further extended it shall be in conformity with Rule 10(6) of the CCS (CCA) Rules and reasons therefore shall be communicated to the Officer and then it would be open to him to assail the same on all the available grounds.

The reasonings persuading the Court to pass the order as above needs little elaboration. Going to discuss the facts and circumstances of the case of Ajay Kumar Choudhury(supra), it has been noted that the Officer therein had not been served with the charge sheet when he initially assailed his suspension or even till the hearing of the appeal before the Supreme Court and later to that the Officer having been served with the charge-sheet, issuance of any such direction had been found to be no more relevant. So, the Court then observed that the Officer if so advised may challenge his continued suspension in any manner known to law and this action of the Government would be subject to judicial review. It would be proper = 18 = to place the relevant paras of the said judgment in case of Dr. Rishi Anand (supra) which runs as follows:-

"14. In the said case, the tribunal had directed that if no charge memo was issued to the appellant Ajay Kumar Choudhary before the expiry of 21.06.2013, then he would be reinstated in service. The said order was assailed by the Union of India before the High Court. The High Court disposed of the petition by issuing a direction to the Central Government to pass appropriate orders as to whether it wishes to continue with the suspension or not having regard to all the relevant factors, including the report of CBI, if any, it might have received by now. This exercise should be completed as early as possible and within two weeks from today".

15. The appellant then approached the Supreme Court to assail the said direction of the High Court. The Supreme Court observed in its decision that till arguments were heard on 09.09.2014, neither the charge sheet, nor the memorandum of charge had been served on the appellant. It was represented before the Supreme Court that the charge sheet was expected to be served on the appellant before 12.09.2014. The Supreme Court considered several decisions and, eventually, concluded in para 21 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 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. Furthermore, the direction of the = 19 = Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us".

16. It appears that before the Supreme Court rendered its decision on 16.02.2016, the charge sheet had been served on the appellant though from a reading of the decision it is not clear as to on what date the same was so served. This development was taken note of by the Supreme Court in its decision. In para 22 of the decision, the Supreme Court observed:-

"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".

(emphasis supplied)

17. Thus, even though the charge sheet had not been served on the appellant Ajay Kumar Choudhary when he initially assailed his suspension, or even till the hearing of the appeal took place before the Supreme Court on 09.09.2014 (it was only between 09.09.2014 and the date of decision on 16.02.2015 that the charge sheet appears to have been served), the Supreme Court held that since the charge sheet had been served on the appellant, therefore, the directions issued by it would not be relevant to his case. Despite the fact that the appellant Ajay Kumar Choudhary had remained under suspension right from 30.09.2011, the Supreme Court did not set aside the order of suspension since, in the meantime, Ajay Kumar Choudhary had been served with a charge sheet sometime after 09.09.2014, i.e. nearly three years after his suspension.

18. The O.M. dated 23.08.2016 and even the earlier O.M. dated 03.07.2015 issued by the DoPT (a copy whereof has been tendered in court by counsel for the respondent) evidently have misconstrued the said decision of the Supreme Court, since the facts of the said case and the eventual directions issued in para 22 of the said decision, appear to have escaped attention.

19. There can be no quarrel with the proposition that a government servant who is suspended in contemplation of a disciplinary proceedings or criminal proceedings under Rule 10 of the CCS (CCA) Rules, should not be kept under suspension indefinitely or = 20 = unnecessarily. It is for this reason that a review of the on-going suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules, which reads as under:-

"10(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."

(emphasis supplied)

20. 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. At the same time, there may be cases where the conduct of the government servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitising the environment so that he may not interfere in the proposed inquiry. 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. In Kailash v. Nanhku, (2005) 4 SCC 480 : AIR 2005 SC 2441, while examining the issue: whether the obligation cast on the defendant to file the written statement to the plaint under Rule (1) of Order 8 CPC within the specified time was directory or mandatory i.e. whether the Court could extend the time for filing of the written statement beyond the period specified in Rule 1 of Order 8, the Supreme Court held that the Court had the power to extend the time for filing of the written = 21 = statement, since there was no consequence prescribed flowing from non-extension of time. In para 29 of this decision, the Supreme Court observed as follows:-

"29. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form."

(emphasis supplied)

21. 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.

22. The decision of the Supreme Court in Ajay Kumar Choudhary (supra) itself shows that there cannot be a hard and fast rule in this regard. If that were so, the Supreme Court would have quashed the suspension of Ajay Kumar Choudhary. However, in view of the fact that the charge memo had been issued to Ajay Kumar Choudhary - though after nearly three years of his initial suspension, the Supreme Court held that the directions issued by it would not be relevant to his case.

23. From a reading of the decision in Ajay Kumar Choudhary (supra) and Rule 10 of the CCS (CCA) Rules, it emerges that the government is obliged to record its reasons for extension of the suspension which, if assailed, would be open to judicial scrutiny - not as in an appeal, but on grounds available in law for judicial review of administrative action."

= 22 =

10. In the cited case of Bishnu Prasad Sahoo (supra), the petitioner therein was a Town Planner and then working under the Cuttack Development Authority (CDA). A raid had been conducted on the basis of the information that said Officer had accumulated assets dis-proportionate to his known source of income. He had been placed under suspension in exercise of power conferred under sub-rule-2 of rule-12 of the Orissa Civil Services (Classification Control and Appeal) Rules, 1962 for his said involvement along with his wife for commission of offence under section 13(2) read with section 13(1)(e) of the Provisions of Corruption Act read with section 109 of the IPC. In that case, the departmental proceeding had also been initiated against the Officer and he had been served with the charge memo but had not given the reply. In the criminal case, of course final charge-sheet had not been submitted. In such factual settings, the learned Single Judge did not find any manifest illegality in the order of suspension.

11. Coming to the cases before us, the order of extension of suspension of the petitioner as at (A) dated 19.07.2019 which was assailed in the Original Application before the Tribunal reveals that the same has been passed upon acceptance of the recommendation of the Suspension Review Committee by the with the Disciplinary Authority. The facts persuading, the Committee to recommend the extension of suspension which have been accepted by the Disciplinary Authority are:-

(a) the investigation of DRI with regard to alleged impart of overvalued diamonds vide 14 bills of entry of M/s. Antique Exim Pvt. Limited and M/s. Tanman Jewells Pvt. Limited is complete and SCN are being issued; and = 23 =

(b) the Competent Authority had given approval under section 17(a) of the Prevention of Corruption Act against the petitioner of (A).

That period having been expired in the meantime, the last order of extension has come on 15.01.2020. On that occasion, the Suspension Review Committee had again recommended for continuance of suspension which has been accepted. The facts taken note of are:-

"i. that investigation by the DRI with regard to import of overvalued rough diamonds through PCCCC Mumbai vide 14 bills of entry of M/s. Antique Exim Private Limited and M/s. Tanman Jewels Private Limited, is complete and SCN date 10.07.2019 has been issued. Shri Ashiqzzaman, Deputy Commissioner, has been made co-noticee in the said SCN;

ii. that the case has been referred to CBI after seeking approval from competent Authority under section 17A of PC Act and the matter is pending investigation with CBI;

iii. that, Shri Ashiqzzaman, Deputy Commissioner has submitted Representation dated 21.08.2019; and iv. that Shri Ashiqzzaman, Deputy Commissioner, has preferred O.A. No. 693/2019 before Hon'ble CAT, Cuttack Bench, which is pending for decision".

The order of extension of the petitioner as at (B) dated 22.07.2019 which was assailed in the Original Application before the Tribunal would show that the same has been passed by the Disciplinary Authority upon acceptance of the recommendation of the Suspension Review Committee. The facts persuading the = 24 = Committee to recommend for extension of suspension which have been accepted by the Disciplinary Authority are that:-

(a) all the accused Officers were granted bail vide order dated 05.05.2018 which has been challenged by the CBI by carrying the matter to the High Court which is pending;

(b) aggrieved by the order dated 23.07.2018 as to shifting of head quarter, the Officer has filed Original Application before the Tribunal at Mumbai which is pending; and

That period having been expired in the meantime, the last order of extension has come on 15.01.2020. In that, the Suspension Review Committee having taken note of the following facts had again recommended for continuance of suspension which has been accepted. The facts are as under:-

i. that the Criminal Applications (CRA) No. 259 of 2018 and 263 of 2018 filed by CBI, before the High Court have become in fructuous;

ii. that aggrieved by the order dated 23.07.2018, the Officer has filed O.A. No. 560/2018 before the Tribunal of Mumbai which is pending;

iii. that the officer has preferred OA No. 617 of 2019 before the Tribunal at Cuttack which is pending;

iv. that the officer has represented vide letters dated 27.07.2019 and 18.10.2019;

= 25 = v. that CBI has recommended for continuation of suspension of the officer; and vi. that the investigation has conducted by CBI and it has recommended prosecution & RDA against the Officer and that has been referred to CVC for advice.

The above projected reasons / grounds in support of the continued suspension of the opposite parties on a plain reading are not seen to be so relevant or of significance in the totality of the facts and circumstances as discussed. The opposite parties have been shifted from their place of posting, where the allegations were leveled. In the absence of any specific material, the likelihood on their part to influence the investigation and tamper with the evidence in the criminal trial is hardly inferable. There are no such indications that even in their present place of posting, the working atmosphere in case of their joining the work in the office is likely to be polluted when the fact remains that the petitioners are at liberty to post them in any such non-sensitive post as deemed proper. After that incident, no further allegation of their misconduct in any way has also been reported.

The other group B officers, who have also been arraigned in the criminal case arising out of the same incident wherein the opposite party as at (B) is an accused, are all on bail. The CBI has moved for cancellation of bail granted all accused persons. The investigation by CBI is complete in respect of both the set of accused. In case of those officers also, the Review Committee had submitted the recommendation.

= 26 = However, in the case of Manish Kumar and Akshat Rathore, both Preventive Officers, not only their suspension has not been extended, they have been allowed to continue in Mumbai office itself. The opposite party as at (B) however has been transferred to Bhubaneswar in the State of Odisha. He is thus not having any direct access to the officials record or with the persons concerned and therefore the scope for him to tamper with the evidence etc is too remote a possibility.

With these obtained factual settings, case of the opposite party at B rather stands on a better footing than those two protection officers implicated in the case. In that view of the matter, the continuation of suspension of this opposite party as at (B) is apparently discriminatory and violative of Articles 14 and 16 of the Constitution because thereby equals have been treated unequally.

For all the aforesaid, regard being had to the principles of law settled in the cited decisions (supra); we find no infirmity in the ultimate conclusion of the Tribunal that further continuance of suspension of the opposite parties would no more be useful.

However as it is found that the challenges were to the order dated 19.07.2019 extending the suspension of the opposite party of (A) with effect from 22.07.2019 and order dated 22.07.2019 extending the suspension of the opposite party at (B) with effect from 24.07.2019; We, accordingly direct that they be not treated to have been under suspension with effect from above said dates and not as has been ordered by the Tribunal as effective from the expiry of the initial period of suspension for 90 days.

= 27 = The petitioners would take a decision on how to treat the period of suspension of the opposite parties and their entitlements in accordance with the Rules holding the field.

With the modification of the final orders passed by the Tribunal to the extent as indicated above; these writ applications are partly allowed.

          (DEBABRATA DASH)                                  (MOHAMMAD RAFIQ)
               JUDGE                                          CHIEF JUSTICE




//B.Nayak//A.R-cum-Sr.Secy.

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