Central Administrative Tribunal - Mumbai
Veerabhadram Vislavath vs Revenue on 23 August, 2022
1
OA No. 21/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI
O.A. No. 21/2022
Order Reserved on:20.07.2022
Order Pronounced on: 23.08.2022
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Veerabhadram Vislavath,
Son of Bhav Singh Vislavath,
Date of Birth: 11.11.1976
(age 45 years 02 months)
Working as: Deputy Commissioner of
Income Tax, IRS (Group "A" post) in
Government of India,
Ministry of Finance, CBDT,
Department of Revenue, New Delhi
North Block and residing at:
E-37, Darbhanga House, LT Colony,
Pedder Road, Pedder Road, Mumbai
400026, State of Maharashtra Cell:
9969235522, email id: [email protected]
-Applicant
(By Advocate: Shri R.G. Walia)
Versus
1. Union of India through
The Secretary,
Government of India,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi-110 001
Email id: [email protected]
2. The Chairman,
Central Board of Direct Taxes (CBDT)
North Block, New Delhi-110001
Email: [email protected]
3. Principal Chief Commissioner of Income Tax,
3rd Floor, Aayakar Bhavan,
M.K. Road, Churchgate Mumbai
400020
2
OA No. 21/2022
Email id: [email protected]
4. Reviewing Committee,
Central Board of Direct Taxes (CBDT)
North Block, New Delhi-110001
Email: [email protected]
- Respondents
(By Advocate: Mr. R.R. Shetty)
ORDER
Hon'ble Mr. Tarunn Shridhar:
The applicant, who is an officer of Indian Revenue Service, is aggrieved by his continued suspension over the last more than three years and challenges the same in the present Original Application, seeking the following reliefs:-
"(a) This Hon'ble Tribunal may graciously be pleased to call for records and proceedings which led to the passing of the impugned orders dated 15.11.2021 (Annx.A1), dated 14.05.2021 (Annx.A2), 17.8.2021(Annx.A3) and Annexure "A-31" dated 13.5.2022 after going through its propriety, legality and constitutional validity be pleased to quash and set aside the same further direction to the Respondents to immediately reinstate the Applicant in service with all consequential benefits of proper pay and wages, w.e.f.
17.3.2021 i.e. difference of pay and salary after deduction of Subsistence Allowance as paid to the Applicant.
(b) This Hon'ble Tribunal may be pleased to hold and declare that the impugned act of the Applicant to continue the Applicant under suspension beyond 17.3.2021 is/was absolutely illegal and wrong and accordingly direct the Respondents to immediately reinstate the Applicant in service with all consequential benefits.
3OA No. 21/2022
(c) Any other and further orders as this Hon'ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case.
(d) Costs of this Original Application may be provided for."
2. Brief facts of the case are that the applicant was initially placed under suspension in accordance with the provision of deemed suspension on account of his detention w.e.f. 05.09.2018 because of his involvement in a case involving Section 376 of IPC and Sections 4, 6, 8 and 12 of the POCSO Act, which led to filing of Special Case No.641/2018. The provision of deemed suspension was invoked by the authorities since the detention of the applicant continued for more than 48 hrs. Since then the respondents have been extending the suspension of the applicant from time to time and the said suspension is continuing till date, the applicant earlier agitated his grievance with respect to this continued suspension in OA No. 1524/2019 which was disposed of vide order dated 19.08.2019. While deciding the aforesaid OA, the Tribunal had directed the respondents to reconsider the continued suspension of the applicant, taking into 4 OA No. 21/2022 consideration of the fact that the detention of the applicant was totally unrelated to discharge of his official functions and the continued suspension would only entail in payment of huge amount of subsistence allowance without extracting work from the applicant. Pursuant to this order, the respondents considered the case of the applicant through the Review Committee but decided to extend the period of suspension on the ground that the allegations leveled against the applicant involved grave misconduct. The applicant has subsequently been acquitted in the Special Case No. 641/2018 vide judgment dated 17.03.2021. However, the respondents have taken a decision that the revocation of the suspension does not merit consideration in the instant case.
3. Mr. Rahul walia, learned counsel for the applicant argues that the genesis of the entire case against the applicant is the matrimonial dispute he is embroiled in with his wife and her family which led to filing of a false case, titled Special Case No.641/2018 against the applicant. While there is no infirmity in the initial deemed suspension order against the applicant on account of his detention, 5 OA No. 21/2022 which lasted for more than 48 hrs., the subsequent continued suspension over such an inordinately long period is uncalled for and does not find support in the relevant rules and instructions governing suspension, the learned counsel goes on to argue.
4. Learned counsel alleges malafide on the part of the respondents by pointing out that the respondents have passed more than 10 orders over this period of time to extend and continue the suspension of the applicant till date, though the primary reason of his suspension no longer subsists as vide judgment dated 17.03.2021 in Special Case No. 641/2018, the applicant stands acquitted. Against this background, there is no justification either in the facts and circumstances of the case or rules governing the subject to keep the applicant under indefinite suspension.
5. Drawing attention to the language contained in various suspension orders, the learned counsel points out that in order dated 20.07.2019, the respondents, for the first time, brought in an element of the allegation leveled in FIR and terming it as a grave misconduct to justify the continued 6 OA No. 21/2022 suspension. This, according to the learned counsel, was to circumvent the directions of the Tribunal passed in the aforementioned OA. Thereafter, vide various orders, the suspension continues even though the charge of grave misconduct does not hold since the applicant stands acquitted by the competent criminal court. According to the learned counsel, the act of the respondents is illegal, arbitrary and malicious, as it does not find any justification in the rules or the principles governing suspension. He points out that suspension can only be resorted to where: (a) disciplinary proceedings are either contemplated or pending; (b) the official in the opinion of the authority has engaged in activities prejudicial to the security of the State or; (c) a case in respect of criminal offence is under investigation in inquiry or trial. Since the condition mentioned at (c) above was initially attracted to justify the suspension of the applicant, pursuant to his acquittal, this condition no longer exists. Hence, by no stretch of imagination, can any rule be invoked to continue with the same.
7OA No. 21/2022
6. Rebutting the averments in the counter reply, the learned counsel for the applicant points out that the plea that the applicant has been acquitted on benefit of doubt and not on merit, cannot be sustained. There is nothing on record that the acquittal of the applicant has been challenged in an appeal nor does the reason for the acquittal in any way dilute the case of the applicant. He points out that the respondents are justifying their action for continued suspension of the applicant on the basis of some anonymous/pseudonymous complaints which appear to be malicious and fabricated. Drawing attention to the relevant circular of the Central Vigilance Commission (CVC), the learned counsel argues that the procedure laid down in the said circular for attending to anonymous and pseudonymous complaints should have been adhered to before relying upon the same to continuously victimize the applicant. Moreover, the learned counsel reiterates, the applicant has been honorably acquitted and nowhere in the judgment of the criminal court is it mentioned that the acquittal is merely on account of the benefit of doubt. 8 OA No. 21/2022
7. Learned counsel draws support from the case of Ajay Kumar Choudhary v. Union of India, (2015)7SCC wherein the Hon'ble Supreme Court had frowned upon the tendency of the authorities to keep the officials under protracted suspension, resorting to repeated renewal as a matter of norm rather than an exception. Learned counsel re-emphasizes that pursuant to the acquittal of the applicant, his suspension is wholly unjustified and is indicative of malafide intention of the respondents to victimize and harass the applicant. Accordingly, the learned counsel concludes his argument by vehemently stating that the action of the respondents being totally illegal and borne out of malice, resulting in prolonged victimization and harassment of the applicant, deserves to be set aside forthwith. He prays for a direction that the applicant, in accordance with the reliefs sought, be ordered to be reinstated w.e.f. 17.03.2021, the date on which he was acquitted in the criminal case; further, he prays that the applicant be awarded consequential benefits.
8. Strongly contesting the arguments putforth by the learned counsel for the applicant, Mr. RR Shetty, learned counsel for the respondents draws 9 OA No. 21/2022 attention to the provisions of CCS(CCA) Rules, governing suspension, specifically to Rule 10(5)(b) and submits that this rule makes it abundantly clear that if during the course of the suspension of an employee, additional material evidence gets available, the suspension can be further continued and there is no need to revoke the same. He further emphasizes this argument by pointing out that it would be an absurd situation wherein despite sufficient material of further misconduct by an employee, he is first reinstated and then again placed under suspension. In the instant case, the learned counsel informs, sufficient material has come to light that the applicant is indulging in activities which involve moral turpitude and could be classified as debauchery. The conduct of the applicant is highly objectionable, considering that he is an officer of Indian Revenue Service, holding a very high position and has been found to be involved in corrupt and nefarious activities. Learned counsel draws attention to the information of such activities of the applicant available with the department, which include photographs, whatsApp chat, with a series of questionable characters and informs that a preliminary inquiry has been 10 OA No. 21/2022 conducted into these allegations wherein the Inquiry Officer, who is an officer of the rank of Principal Commissioner of Income Tax, has recommended that in view of overall conduct and the past record of the officer, appropriate proceedings may be initiated against him. However, the said preliminary inquiry report is stated to be under examination of the competent authority and there is nothing on record to indicate that disciplinary proceedings under the relevant rules have been initiated against the applicant on the grounds of the alleged misconduct.
9. Learned counsel further argues that on each and every occasion, the suspension of the applicant has been reviewed strictly in accordance with the rules and the facts of the case by the Review Committee, who have considered all the relevant aspects of the case and thereafter made their recommendation and decision. Drawing attention to the Minutes of the Review Committee, more particularly, the Minutes of the Review Committee held on 28.04.2022, which was the last review vide which suspension was extended for a period of 180 days, learned counsel submits that 11 OA No. 21/2022 these minutes conclusively establish that the members of the Review Committee have arrived at their recommendation and decision after due diligence and application of mind.
10. Learned counsel reiterates that a Government Servant, more so a senior officer such as the applicant, is expected to maintain impeccable conduct and not indulge in any activities as to cause embarrassment to the Government. In the instant case, the conduct of the applicant is such as to warrant serious disciplinary action. Learned counsel finds support in this contention in observations and directions of the Hon'ble Supreme Court in the case titled as S. Govinda Menon v. Union of India, AIR 1967 SC 1274. Learned counsel further draws attention to the judgment of the Hon'ble High Court of Delhi in the case of S.K. Jasra v. Union of India, which also supports the above referred judgment of the Hon'ble Supreme Court. The Hon'ble High Court of Delhi had said that even if an alleged act or omission on the part of a Government servant is not related to the discharge of duty, it can still be a subject matter of disciplinary proceedings since it 12 OA No. 21/2022 would reflect upon the integrity and reputation of the officer. Learned counsel points out that the facts of the instant case sufficiently justify the action against the applicant on account of his serious misconduct, which has been established in a preliminary inquiry. Further relying upon the judgment of the Hon'ble Supreme Court in Children Films Society of India v. Sridhar Sharma, 1993 Supp(2) SCC 396, learned counsel submits that it is the absolute discretion of the employer to decide whether to suspend an employee or not on account of reports of misconduct. Learned counsel argues that this position has been taken in a catena of rulings of the Hon'ble Supreme Court. He further argues that since the relevant rules have a specific provision for ordering suspension even when disciplinary proceedings are only contemplated, there is no need for framing of definite charges prior to suspension. He further argues that a prolonged suspension cannot be a ground for revocation, if there are sufficient reasons and explanation for the same. This has been held in the judgment of the Hon'ble Supreme Court in the case of U.P. Rajya Krishi Uthpadan Mandi Parishad & Ors. v. 13 OA No. 21/2022 Sanjeev Ranjan, 1993(Suppl.)1993(3) SCC 483. Learned counsel emphasizes that in the present matter, a bare reading of different minutes of the Review Committee would establish that there are more than sufficient grounds to continue with the suspension of the applicant, considering the serious allegations of moral turpitude which have been prima facie established. Contesting the argument of the applicant's counsel that rules do not permit extension of suspension, the learned counsel quotes from the judgment of the Hon'ble Bombay High Court in Srinivas Ganesh v. Union of India, AIR 1956 Bombay 455 to substantiate his argument that it is undisputed that the respondents enjoy the legal power to place an employee under suspension, especially when his conduct is under investigation; therefore, the same cannot be challenged. Learned counsel concludes his argument by reiterating that both the law on the subject and the facts of this case make it abundantly clear that the respondents have correctly invoked the provisions of the rules to keep the applicant under continued suspension, as his conduct as a senior officer of the Government warrants the same.
14OA No. 21/2022
11. We have heard the learned counsels for the parties at great length and meticulously gone through the voluminous documents on record. Both learned counsels have also furnished brief written arguments, for which we are thankful to them. On careful consideration, our findings, opinion and decision in the instant matter is as follows
12. There is no dispute with respect to the basic facts and sequence of events. The applicant was arrested in a criminal case, involving Sections of IPC and POCSO Act, and hence, the respondents were correct in invoking the provisions of deemed suspension as contained in CCS(CCA)Rules, and putting the applicant under suspension with effect from the date of his detention. This suspension got extended from time to time and we cannot find fault with the respondents as far as the adoption of the procedure as enunciated in the rules is concerned. Moreover, since the applicant was facing trial on serious charges under the relevant Sections of IPC and POCSO Act, we also cannot question the respondents for extending the 15 OA No. 21/2022 suspension of the applicant from time to time as they have strictly adhered to the rules and also, on each occasion, examined and considered the facts and circumstances of the case before deciding to extend the period of suspension. However, the contentious issue is that once the applicant was acquitted by the competent criminal court, whether the respondents were justified in continuing with the suspension after the date of acquittal which is 17.03.2021, especially considering that subsequent to this acquittal, the initial cause of suspension no longer subsisted. To appreciate this issue, it would be worthwhile to quote the relevant provisions of CCS(CCA) Rules, governing suspension. The concerned rule, i.e. Rule 10 which is being reproduced below:-
"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 16 OA No. 21/2022
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-
eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
EXPLANATION - The period of forty-
eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on 17 OA No. 21/2022 review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders :
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
(5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.]
(b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be 18 OA No. 21/2022 recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
[(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.] [(7) An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days :
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later.]"19 OA No. 21/2022
13. When the applicant was initially placed under suspension, provisions of Rule 10(2) were attracted, read with the Rule 10(1)(b). Thereafter, in accordance with the provisions of Rule10(6), the competent authority, on the recommendation of the Review Committee, from time to time extended the period of suspension of the applicant. We are of the considered view that till the pendency of the trial, the action of the respondents to review and then extend the period of suspension does not suffer from any infirmity.
14. However, for a balanced perspective, it would be relevant to reproduce the guiding principles of suspension as contained in Suspension - A Digest in Swamy's Compilation of CCS(CCA) Rules below:-
"1. While public interest is to be the guiding factor in deciding to place a Government servant under suspension, the competent authority should take all factors into account and exercise his discretion with due care while taking such action even when the matter is under investigation and before a prima facie case is established. The following circumstances may be considered appropriate to place a Government servant under suspension:-
(i) where his continuance in office will prejudice investigation, trial or any enquiry e.g., apprehended tampering with witnesses or documents);
20 OA No. 21/2022 (ii) where his continuance in office is likely to seriously subvert
discipline in the office in which he is working
(iii) where his continuance in office will be against the wider public interest, e.g., if there is á public scandal and it is considered necessary to place the Government servant under suspension to demonstrate the policy or the Government to deal with officers involved in such scandals, particularly corruption;
(iv) where a preliminary enquiry revealed a prima facie case justifying criminal or departmental proceedings, which are likely to lead to his conviction and/or dismissal, removal or compulsory retirement from service; and
(v) where he is suspected to have engaged himself in activities prejudicial to the interest of the security of the State.
2. Certain types of misdemeanour where suspension may be desirable in the circumstances mentioned above are indicated below:
(i) an offence or conduct involving moral turpitude;
(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;
(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;
(iv) desertion of duty; and
(v) refusal or deliberate failure to carry out written orders of superior officers.
In case of types (iii), (iv) and (v), discretion should be exercised with care. As suspension may cause lasting damage to the Government servant's reputation even if he is exonerated 21 OA No. 21/2022 or is ultimately found guilty of only a minor misconduct, the discretion vested in the competent authority in this regard should be exercised
3. While placing an official under suspension, the competent authority should consider whether the purpose cannot be served by transferring the Official from his post to a post where he may not repeat the misconduct or influence the investigations, if any, in progress. If the official would like to have leave that might be due to him and if the competent authority thinks that such a step would not be inappropriate, there should be no objection to leave being granted instead of suspending him.
15. The question before us is whether the case of the applicant falls within any of these principles to justify continued suspension. No doubt, the offence or conduct, involving moral turpitude has been listed as one of the misdemeanors wherein the suspension of the official may be desirable. We have to consider whether on account of the alleged misdemeanor, the concerned appropriate authority has initiated or even contemplated any disciplinary proceedings. Although learned counsel for the respondents has pointed out that the conduct of the applicant involves serious moral turpitude and has also given sordid details of such a conduct (which we do not feel appropriate to reproduce in this order), the orders extending the suspension 22 OA No. 21/2022 from time to time, and even after the acquittal of the applicant in the criminal case do not specify as to whether a disciplinary proceeding is pending or contemplated against him. Even learned counsel for the respondents, during the course of his oral argument as also in the written argument, has mentioned that the preliminary inquiry against the conduct of the officer is under examination. Since there is no allegation that the applicant has engaged in any activities prejudicial to the interest of the security of the State; neither is a case against him in respect of criminal offence under investigation or trial, the only reason to keep him under suspension could be pendency of a disciplinary proceeding or even its contemplation. Since the initial suspension was a deemed suspension, logically it should have terminated with termination of criminal proceedings. Since no fresh/alternate disciplinary proceedings have commenced against the applicant after acquittal, suspension could not have continued further which is also the intent of Rule10(5)(b) of CCS(CCA) Rules.
23OA No. 21/2022
16. While we do not question the averments made by the respondents with respect to the conduct of the applicant involving moral turpitude, nor do we comment upon the veracity or merits of such allegations, we do note that the concerned authorities have not initiated action against the applicant in accordance with the relevant rules, including CCS(CCA) Rules, especially whereby their own statement his misconduct is of grave nature. The respondents justify the action of continued suspension by pointing out that it is within the powers of the appropriate authority since new facts have emerged. However, it is also to be noted that the rules and principles governing suspension also stipulate that prolonged and continued suspension should be resorted to only in extreme circumstances as not only does it result in continued harassment of the official but also puts financial burden on the Government without any return in the form of extracting work from the concerned official. In this case, the initial cause of suspension ceased to subsist after 17.03.2021, and the reasons quoted to justify the continued suspension have not resulted in initiation of departmental proceedings; therefore, in our well 24 OA No. 21/2022 considered view, in the totality of the facts and circumstances of the case, continued suspension of the applicant is not justified; more so considering the fact that it is now nearly four years and on date, there is neither a criminal trial nor disciplinary proceedings.
17. In the light of the facts, arguments and the rules related to the issue at hand, the OA is allowed to the extent that the latest order dated 13.05.2022, vide which the suspension of the applicant has been extended for a further period of 180 days is set aside. The applicant shall be deemed to have been reinstated w.e.f. 14.05.2022, with all the consequential entitlements effective from that date. We further direct that the competent authority, in accordance with the rules and established procedure, shall review all the previous orders of extension of suspension passed beyond 17.03.2021, the date on which the applicant was acquitted in a criminal case and pass appropriate orders afresh within a period of six weeks from the date of this order. 25 OA No. 21/2022
18. The OA stands disposed of in terms of the aforesaid directions. There shall be no order as to costs.
(Harvinder Kaur Oberoi) (Tarun Shridhar) Member (J) Member (A) /lg/