Central Administrative Tribunal - Ernakulam
L. Adolphus vs Union Of India on 7 December, 2016
Author: P. Gopinath
Bench: P. Gopinath
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No.180/00451/2016
Wednesday, this the 7th day of December, 2016.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
L. Adolphus,
S/o. A. Lawrence (late),
Protector of Emigrants (under suspension),
Office of the Protector of Emigrants,
3rd Floor, Putherickal Building,
Market Road, Ernakulam, Kochi - 682 035.
(Residing at Leyton, Punnathala South,
Thangassery (P.O), Kollam - 691 007. - Applicant
[By Advocate Mr. K.P. Satheesan, Senior
Mr. P. Mohandas]
Versus
1. Union of India,
Represented by the Secretary,
Ministry of External Affairs,
South Block, New Delhi - 110 001.
2. The Joint Secretary (CNV&I) &
Chief Vigilance Officer,
Ministry of External Affairs,
Patiala House, New Delhi - 110 001.
3. The Administrative Officer (PF),
Ministry of External Affairs,
Room No. 4085, J.N. Bhavan,
23-D, Janpath, New Delhi - 110 011. - Respondents
[By Advocate Mr. N. Anilkumar Senior PCGC (R)]
The application having been heard on 28.11.2016, the Tribunal
on 07.12.2016 delivered the following:
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ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicant in the O.A avers that while working as Protector of Emigrants in Cochin he was implicated in a crime registered by CBI. The applicant states that he was a Section Officer in Ministry of Health and Family Welfare in Government of India and joined as Protector of Emigrants Cochin on transfer on loan basis on 06.10.2010 initially for a period of three years. He was granted extension of service as POE till 05.10.2015. The applicant was arrested on 15.06.2015 and was in CBI/Judicial custody till 29.07.2015. On that basis, the applicant was placed under suspension with effect from 15.06.2015. The said suspension was further extended for 180 days with effect from 13.09.2015, and again for 90 days from 11.03.2016.
2. Applicant contends that so far no disciplinary proceedings are initiated. The CBI has also not completed the investigation and may take 3 to 4 years to complete the same. The continued suspension of the applicant is against the judgment of the Hon'ble Supreme Court reported in Ajay Kumar Choudhary v. Union of India & another (2015) 7 SCC 291. The applicant submitted representations before the respondents to revoke the order of suspension and for reinstatement in service.
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3. Since no decision was taken on the representation, the applicant approached this Tribunal by filing O.A. No. 104/2016. Tribunal disposed of the O.A directing the first respondent to take a decision on the representation filed by the applicant within one month in the light of the judgment of the Hon'ble Supreme Court referred supra. Applicant argues that the first respondent instead of revoking the order of suspension, issued an order repatriating the applicant to his parent department. Thereupon the parent department informed that the applicant cannot be allowed to join there since the order of suspension is not revoked. The first respondent is not taking any steps to revoke the order of suspension. The applicant is one of the accused in No. RC 5(A)/2015/CBI/Cochin registered by CBI alleging commission of offences punishable under Section 120 (B) and 420 I.P.C, Section 13(2) read with 13(1)(d) of the P.C. Act and under Section 24 read with Section 25 of the Emigration Act 1983.
4. The allegation is that the applicant conspired with some recruiting agents in Cochin for illegal recruitment of nursing staff personnel for the Ministry of Health, Kuwait. On the basis of the said allegation the applicant was arrested and detained on 15.06.2015. The applicant was detained in jail for more than 48 hours. On the basis of the said arrest and detention the applicant was placed under deemed suspension as per order No. C-14011/1/2015-Vig. dated 29.06.2015 .4.
(Annexure A-1), in terms of Sub Rule 2 of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 and remained under suspension until further orders. Annexure A-1 order was issued by the erstwhile Ministry of Overseas Indian Affairs. The said Department now stands merged with Ministry of External Affairs.
5. The original suspension order was made on 15.06.2015. The review committee considered the suspension and extended it for a further period of 180 days from 13.09.2015. Applicant alleges that there is no progress in the investigation except registration of the F.I.R. We do not accept this contention as CBI has sought and is awaiting prosecution sanction, which itself reveals that the investigation is complete. Prosecution sanction involving civil servants is sought when sufficient evidence has been gathered to file the final report and to put the accused to trial. The applicant however argues that his continued suspension till the finalisation of the crime registered by CBI will cause him undue hardship and difficulty.
6. The applicant approached this Tribunal by filing O.A. No. 104/2016. This Tribunal disposed of the O.A directing the first respondent to take a decision on the representation filed by the applicant seeking revocation of suspension within one month from the date of receipt of a copy of the order. This Tribunal also .5.
directed the respondents to take into consideration the judgment of the Supreme Court in Ajaya Kumar Choudhary v. Union of India (supra).
7. The 3rd respondent i.e. the borrowing Ministry issued Annexure A-5 order repatriating the applicant to his parent department. Rule 10(5)(C) of CCS (CCA) Rules reads as follows:-
'Rule 10(5)(C) - An order of suspension made or deemed to have been made under the 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' Applicant would argue that as per the above rule position the order of suspension can be modified or revoked only by the Ministry of External Affairs. Questioning Annexure A-5 order the applicant filed a representation with the 3rd respondent indicating the legal position with the relevant rules. On the basis of Annexure A-5 letter, the parent department of the applicant, namely, the Ministry of Health and Family Welfare, informed the Ministry of External Affairs that order of suspension can be revoked only by the authority who suspended the incumbent. Therefore, Ministry of Health and Family Welfare is not in a position to allow the applicant to join duty while under suspension.
8. The applicant seeks the following reliefs:
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'i) to set aside Annexure A-5 order of repatriation to Ministry of Health and Family Welfare issued by Ministry of External Affairs vide No. Q/PF/575/63/2016 dated 22.04.2016 issued by the 3rd respondent.
ii) to issue an order or direction to the first respondent Ministry of External Affairs to revoke the order of suspension (Annexure A-2) and allow the applicant to rejoin in service.
iii) to issue an order or direction to the first respondent to revoke the order of suspension and thereafter repatriate the applicant to his parent department if necessary.
iv) to declare that in view of the judgment declared by the Hon'ble Supreme Court in Ajaya Kumar Choudhary v. Union of India (2015) 7 SCC 291, the applicant is entitled for reinstatement into service.'
9. We note that the CBI has not been impleaded as a necessary party to ascertain the exact stage at which the investigation stands.
10. The respondent in the reply statement states that the applicant was working as Protector of Emigrants (POE) Kochi from 06.10.2010 to 15.06.2015. The applicant was implicated in FIR No. RC 5(A)/2015- CBI/Cochin, registered by the CBI, as one of the accused for allegedly entering into criminal conspiracy with a Recruiting Agent (hereinafter referred to as RA), M/s. AI Zarafa Travels & Manpower Consultants, Ernakulam, Kerala and abused his official position as POE by intentionally not taking any action against the RA who committed the offence in the form of overcharging the emigrants seeking a job abroad and thus the applicant, abusing his official position facilitated the RA to obtain pecuniary advantage of several crores of rupees, while causing .7.
corresponding wrongful loss to the emigrants for whom applicant was holding the post of Protector. However, as it is asserted that sanction for prosecution under Section 19 of PC Act has been sought, it is quite evident that the investigation has been completed and that the only impediment in filing the final report is the non obtainment of sanction. The CBI, Cochin has on 11.3.2016 sought sanction for prosecution of the applicant in that Criminal Case, Case No. RC 09(A)2015-KER and RC 10(A)/2015-CBI/Cochin.
11. The applicant was arrested on 15.6.2015. The Court of Special Judge for CBI cases, Ernakulam remanded the applicant to judicial custody till 17.06.2015 and later to Police custody till 19.06.2015. On expiry of police custody, the applicant was remanded to judicial custody till 03.07.2015. The applicant was placed under deemed suspension under Rule 10(2)(a) of CCS (CCA) Rules with effect from 15.06.2015. The suspension of the applicant was extended further for 180 days with effect from 13.09.2015, considering the gravity of allegation against him in the CBI case.
12. Following the extension of his suspension, the applicant submitted representations to the Secretary, erstwhile Ministry of Overseas Indian Affairs (MOIA) for revocation of his suspension. Following receipt of representations of the applicant the .8.
erstwhile Ministry of Overseas Indian Affairs (MOIA) sought status of the criminal case against the applicant from CBI to examine the request of revocation of suspension of the applicant. The CBI advice dated 07.01.2016 stated that the investigation of the case is in progress and explicitly mentions that 'the revocation of suspension of the accused Shri L. Adolphus, at this stage may affect the investigation of the case as he can tamper with the evidences, so his suspension may be continued.'
13. By gazette notification dated 16.02.2016, the Ministry of Overseas Indian Affairs (MOIA) was merged with the Ministry of External Affairs (MEA). Upon receipt of the opinion of the CBI, the suspension of the applicant was extended for another 90 days. Thereafter, the respondent Ministry received letter dated 11.03.2016 (inadvertantly mentioned as 11.03.2015) from the CBI, Kochi seeking sanction for prosecution of the applicant under Section 120-B and 420 of IPC, Section 13(2), read with Section 13(1)(b) of the Prevention of Corruption Act, 1988 and Section 24 of the Emigration Act, 1983. Generally prosecution sanction for government officials is sought by CBI when investigation has been completed and evidence for prosecution is gathered to file the charge sheet/final report under Section 173(2) of Cr.PC. Had this permission, after due consideration been given in time, there would have been no further delay in the .9.
matter. However, due to merger of erstwhile Ministry of Overseas Indian Affairs with External Affairs Ministry, a month before the prosecution sanction was sought, it appears the matter of prosecution sanction has been put in the back burner and forgotten. It should certainly not take so many months for the appointing Ministry to take a decision on the merits or otherwise for prosecution. Such laxity not only delays filing of the charge sheet but would also dilute the seriousness of the matter.
14. The applicant again requested for revocation of his suspension on the basis of an order dated 03.03.2016 passed by this Tribunal. The applicant was repatriated to his parent cadre/Ministry viz., the Ministry of Health and Family Welfare (MHFW) with effect from 22.04.2016. This order was issued in view of receipt of request for grant of sanction for prosecution for filing of charge sheet by the CBI against the applicant under section 120 B and 420 of IPC, Section 13(2) read with Section 13(1)(d) of the PC Act, and Section 24 of Emigration Act, 1983 in RC 09(A)2015-KER and RC 10(A)/2015-CBI/Cochin. The applicant vide letter dated 26.04.2016 objected to the order of repatriation dated 22.04.2016 stating that he cannot join his parent cadre unless his suspension is revoked by the respondents (MEA). Invoking Rule 10(5)
(c) of the Central Civil Services (Classification, Control and Appeal) Rules, the applicant states that the order of his suspension can be .10.
modified or revoked only by the respondents as the erstwhile Ministry of Overseas Indian Affairs had since been merged with MEA and the MEA had last extended his suspension.
15. The Ministry of Health and Family Welfare, the applicant's parent department, expressed their inability to allow the applicant to join while under suspension in terms of Rule 10(5) (c) of the CCS (CCA) Rules, as the suspension was last extended by the MEA. The respondent brings to our notice applicability of the judgment dated 27.06.2013 of the Guwahati High Court in WP(C) No. 2999/2010 Dr. Amar Jyoti Baruah v. UOI & Others in the matter of repatriation of the applicant. The respondent argues that the judgment of the Apex Court in the case of Ajay Kumar Choudhary v. Union of India & another, (2015) 7 SCC 291 was rendered in a different context and in this O.A the CBI has registered a case against the applicant on account of grave allegations against him and sanction for prosecution in a court of law has also been sought, thereby indicating that the investigation has already been completed and there are materials to put the accused (applicant) to trial. Clarification was sought by the Ministry of Overseas Indian Affairs from the CBI to consider applicants representation for revocation of his suspension order, as is evident from Annexure R-6 and Annexure R-7. To this, the CBI in its response dated 07.01.2016 clearly intimated that the investigation of the case is in progress and explicitly stated that "the .11.
revocation of suspension of the accused Shri L. Adolphus, at this stage may affect the investigation of the case as he can tamper with the evidence, so his suspension may be continued'. Thus, neither the suspension of the applicant nor its extension was arbitrary in view of the seriousness of the allegation.
16. In this context it is necessary to visit the relevant portions of Rule 10 and Rule 20 of CCS(CCA) Rules which deal with suspension. Rule 10 (1) (a) and (b), 10(2) (b) and 10(5) (a) and (c) and Rule 20(1) are reproduced as applicable to the case under consideration :
'10(1) The Appointing Authority or any authority to which it is subordinate on 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
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.' 10(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;' Rule 10(5)(a) & (c)
(a) Subject to the provisions contained in sub-rule (7), any 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.
(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.' Rule 10 (7) 10 (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 :
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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.' Rule 20 (1) from CCS CCA Rule:
'(1) Where the services of a Government servant are lent by one department to another department or to a State Government or an authority subordinate thereto or to a local or other authority (hereinafter in this rule referred as 'the borrowing authority'), the borrowing authority shall have the powers of the Appointing Authority for the purpose of placing such Government servant under suspension and of the Disciplinary Authority for the purpose of conducting disciplinary proceeding against him. Provided that the borrowing authority shall forthwith inform the authority which lent the services of the Government servant (hereinafter in this rule referred to as 'the lending authority) of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be.'
17. Respondent brings to our notice judgment dated 27.06.2013 of the Guwahati High Court in WP(C) No. 2999/2010 Dr. Amar Jyothi Baruah v. Union of India & Others which has confirmed the legality of the act of repatriation to another department while under suspension as per provision under Rule 10 (5) (c) of the CCS (CCA) Rules, 1965. The High Court in above case held as follows:
'15. Submissions made have been considered.
16. Since Rule 10 (5)(c) of the 1965 Rules is central to the petitionerb�s case, a brief dilation on the same is considered necessary.
Rule 10 deals with suspension. While Rule 10 (1) empowers the appointing authority or the authorities mentioned therein to place a Government servant under suspension, Sub-Rule (2) provides for deemed suspension in case of custodial detention for a period exceeding forty- eight hours. Sub-Rules (3) and (4) are not relevant for the present case as those relate to situations where penalty of dismissal etc is set aside on appeal, review or on Court order. Rule 10 (5) (a) provides that an order of .13.
suspension made or deemed to have been made under the said Rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. Under Clause-(c), an order of suspension made or deemed to have been made under Rule 10 may be revoked or modified at any time by the authority which made it or is deemed to have made or by any authority to which that authority is sub-ordinate.
17. Rule 20 of the 1965 Rules deals with provision regarding officers lent to State Governments etc. As per Sub-Rule (1), where the services of a Government servant are lent by one department to another department or to any other authority, the borrowing authority shall have the power of the appointing authority for the purpose of placing such Government servant under suspension and also of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him. As per the proviso, the borrowing authority is required to forthwith inform the lending authority the circumstances leading to the order of suspension or the commencement of the disciplinary proceeding, as the case may be.
18. In Khemi Ram (supra), the Apex Court affirmed a decision of the High Court holding that it was permissible for the lending authority to make an order of suspension while the service of the employee was at the disposal of the borrowing authority on deputation.
19. The Hon'ble Apex Court in Kunal Nanda (supra), held that the basic principle underline deputation is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments.
20. In the case of Rajiv Kumar (supra), the Apex Court examined the provision of deemed suspension arising out of custodial detention exceeding 48 hours under Rule 10(2) of the 1965 Rules. It was held that Rule 10(2) is a deeming provision and creates a legal fiction. Under Rule 10 (5)(a), such an order would continue to remain in force until it is modified or revoked by an authority competent to do so while Rule 10 (5)
(c) empowers the competent authority to modify or revoked such suspension.
21. In case of deputation, while the deputationist retains his substantive post under the parent department, he comes under the administrative control of the borrowing department. A careful analysis of the law relating to deputation would show that while an officer is on deputation, both the parent department as well as the borrowing department would have the power to place him under suspension or to initiate disciplinary proceeding against him. The Apex Court had held in Khemi Ram (supra) that while an officer is on deputation, the parent department would still have the power to initiate disciplinary action against him. If that be the position, the appointing authority or the parent department would have the power to take further steps or pass further orders in the case of the suspended deputationist, who is sent back on repatriation. Applying the above principle, in the present case, the borrowing department had only stepped into the shoes of the parent .14.
department while placing the petitioner under suspension. On repatriation, the parent department would be the competent authority to pass further orders it considers necessary once the officer comes within its administrative control on repatriation.
22. The submission made on behalf of the petitioner that suspension order having been passed by the borrowing department, it can only be modified or revoked by the borrowing department before repatriation of the petitioner, does not appeal to the Court. Such an interpretation would make the provision of Rule 10(5)(c) unworkable.
23. From the discussions made above, the Court is of the considered view that the repatriation order does not suffer from any infirmity. On such repatriation, respondent No. 5 i.e. NEEPCO will become the competent authority in respect of the petitioner and will be competent to pass any order relating to the petitioner, including an order under Rule 10(5)(c) of the 1965 Rules.
24. Having regard to the above, this Court finds no merit in the challenge made to the repatriation order dated 20.05.2010. There is no merit in the writ petition. It is accordingly dismissed. Interim order passed earlier stands vacated.' (AIR 1976 SC 1737 Khemi Ram Vs. State of Punjab, (2000) 5 SCC 362 Kunal Nanda Vs.Union of India and Ors. & AIR 2003 SC 2917 Union of India Vs. Rajiv Kumar)
18. Applicant in his argument submits that the Supreme Court has already declared the law that an official cannot be kept under suspension beyond three months, if within this period the memorandum of charges is not served on the delinquent officer, citing Ajay Kumar Choudhary v. Union of India & another (2015) 7 SCC 291. A Division Bench of the Hon'ble High Court in Vikraman Nair v. State of Kerala 2008 (4) KHC 412 held that suspension of an employee pending disciplinary proceedings or criminal investigation is not automatic, but is discretionary. The object of placing an employee under suspension is to enable the administration to conduct the proceedings smoothly so as to establish the allegations or charge against that employee. If victimization .15.
is discernible from the facts of the case or suspension is arbitrary or illegal, the courts will be justified in interfering with the order of suspension. The applicant while quoting the above citation does not make out a case of victimization.
19. The order of suspension has been rightly made as per Rule 10(2) (a) by the Borrowing Authority. Rule 20(1) empowers the borrowing department with powers of the appointing authority for the purpose of placing a government servant under suspension and also of the disciplinary authority for the purpose of conducting disciplinary proceedings. As this is a case of deemed suspension as per 10 (2) (a), the intervention of any authority to authorise suspension would be minimal. In Ajay Kumar's case the context was fixing a moratorium of 90 days for 'speedy trial' in a departmental disciplinary proceedings. The case of applicant in this O.A is different as it is not departmental proceedings but a case wherein permission for prosecution sanction has been sought by CBI., for the alleged commission of offences under the IPC, PC Act and Emigration Act 1983 and sanction for prosecution was sought in March 2016. This is generally done so by CBI when investigation is complete and when sufficient materials are gathered to put the accused to trial.
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20. The Apex Court in C A 5007 of 2003 and 5008 of 2003 Union of India v. Rajeev Kumar Bani Singh had held as follows:
'.....The inevitable conclusion therefore is that the order in terms of Rule 10(2) is not restricted in its point of duration or efficacy to the period of actual detention only. It continues to be operative unless modified or revoked under Sub-clause 5(c), as provided under Sub- rule 5(a).' Applicant does not bring to our notice any judicial pronouncement quashing Rule 10(2).
21. As regards the status of the applicant who is a deputationist, the Apex Court in its judgment dated 24.04.2000 Kunal Nande v. UOI and another had held:
'...........The basic principle underlying deputation itself is that the persons concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.'
22. Applicant in para (11) of Annexure A-3 himself admits that the CBI/ACB/Cochin has filed a case Cr. No. RC-05(A) 2015 as early as 30.03.2015 under section 12 B and 420 IPC, Section 13(2) read with 13(1) (d) of PC Act 1988 and Section 24 and 25 of Emigration Act 1983 in which applicant is arrayed as Accused 1. The CBI has sought prosecution sanction evidently because investigation is complete and there are materials to proceed against the accused. .17.
23. Neither the applicant nor the respondent brings to our attention any rule that repatriation is not permissible during suspension.
24. The Apex Court in Ajay Kumar Choudhary's case relied on A.R. Antulay v. R.S. Nayak 1997 (1) SCC 225 and quoted :
'86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.
(3) The concerns underlying the right to speedy trial from the point of view of the accused are:
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of [pic]death, disappearance or non- availability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, 'delay is a known defence tactic'. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings.
Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who .18.
is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (8) Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
13. 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 Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond 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 .19.
contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries 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/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. 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.
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 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 recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that 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 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. '
25. The Apex Court in CA 5007 of 2003 and 5008 of 2003 UOI v. Rajeev Kumar Bani Singh had held thus :
'Thus it is clear that the order of suspension does not loose its efficacy and is not automatically terminated the moment the detention comes to an end and the person is set at large. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made, the same continues by the operation of Rule (5) (a) and the employee has no right to be re-instated to service.' .20.
The CCS (CCA) rules contains a provision for deemed suspension and a provision for periodic extension of suspension. The respondent is expected to give reasons for continuation of such suspension.
The provision of CCS (CCA) Rules has not been set aside or quashed by the Apex Court in Ajay Kumar Choudhary's case. Although applicant has cited Ajay Kumar Choudhary's case, extension of suspension was not the ratio of the case. Hon'ble Apex Court has not laid down the law that in all cases of suspension there should be a reinstatement. The facts and circumstances of 'Ajay Kumar's case' was a departmental inquiry case where even after inordinate delay, charge sheet had not been issued. In Ajay Kumar Choudhary's case it was held that a suspension order should not extend beyond three months if within that period the charge memo is not served. The Apex Court, in para 15, while concluding the judgment made the following observation :
'15. So far as the facts of the present case are concerned, the appellant has now been served with a charge sheet, 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.'
26. Hence the power of the authority to extend the suspension as per Rule 10(5) (c) has not been set at naught by the Apex Court in the above case. If the authority has sufficient reasons for keeping the applicant under suspension, Rule 10(5) (c) can be operated. The Apex .21.
Court, in Ajaya Kumar Choudhary's case, was concerned with the inordinate delay in issuing a charge memo. However, the Apex Court has not taken away or quashed Rule 10.
27. This is a case in which CBI has sought prosecution sanction as early as on 11.3.2016 and the delay in proceeding further or moving forward with the case is presumably on account of a difference of opinion between the lending and borrowing department.
28. In Rajiv Kumar Bani Singh's case the Apex Court held :
Rule 10(2) is a deemed provision and creates a legal fiction. A base reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness. Rule 10(3) and 10(4) operate conceptually in different situations and need specific provisions separately on account of inter position of an order of Court of Law or an order passed by the Appellate or Reviewing Authority and the natural consequences inevitably flowing from such orders. Great emphasis is laid on the expressions b� until further ordersb� in the said sub-rules to emphasise that such a prescription is missing in sub- rule(2). Therefore, it is urged that the order is effective for the period of detention alone. This plea is clearly without any substance because of sub-rule 5(a) and 5(c) of Rule 10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one contemplated under sub-rule (2). The said provision under Rule 10(5) (a) makes it crystal clear that the order continues to remain in force until it is modified or revoked by an authority competent to do so while Rule 10(5) (c) empowers the competent authority to modify or revoke also. No exception is made relating to an order under Rules 10(2) and 10(5) (a). On the contrary, specifically it encompasses an order under Rule 10(2). If the order deemed to have been made under Rule 10(2) is to lose its effectiveness automatically after the period of detention envisaged comes to an end, there would be no scope for the same being modified as contended by the respondents and there was no need to make such provisions as are .22.
engulfed in Rule 10(5) (a) and (c) and instead an equally deeming provision to bring an end the duration of the deemed order would by itself suffice for the purpose.
29. There is a need to distinguish between Apex Court decision in Ajay Kumar Choudhary's case and Rajiv Kumar Bani Singh case. Ajay Kumar Choudhary's case is one of a delay in departmental enquiry and departmental proceedings. Rajiv Kumar's case is one in which the accused was arrested on 26.03.1998 and released on bail on 02.04.1998 and was placed on deemed suspension. The facts of Ajay Kumar Choudhary are different and as such do not apply to the facts of this case. The facts of Rajiv Kumar's case are more identical and applicable to the applicant's case. The right to speedy trial was declared by the Constitution Bench in Kailas Singh v. State of Punjab (1994) 3 SCC 569 as a fundamental right under Article 21 which guaranteed the right to life and liberty. Right to speedy trial was also elucidated by the Apex Court in Hussainara Khatoon v. Home Secretary, State of Bihar 1980 SCC (1) 98 as a reasonably expeditious trial. It is the legal expectation of expedition and diligence being present at every stage of a trial. The applicant in this O.A was arrested on 15.06.2015 and detained in judicial custody till 29.07.2015. The respondent in the reply statement submits that consequent to the CBI investigation, applicant has been implicated in 2 cases and the sanction for prosecution has been sought in both cases for filing of chargesheet alleging commission of offences punishable under sections 120B and 420 of IPC and Section 13(2) read .23.
with 13(1) (d) of the PC Act and section 24 of the Emigration Act in RC 09(A) 2015 KER and RC 10(A) 2015-CBI Cochin.
30. It is the admitted fact that sanction for prosecution was sought by CBI. If a public servant is accused of any offence committed while acting or purporting to act in the discharge of his official duty or by virtue of his office, sanction is mandatory. In a case where services of a government servant has been lent by one department to another, sanction for prosecution is issued by the authority competent to remove them from service. Sanction for prosecution issued by the competent authority is a pre-requisite for taking cognizance of such an offence by the public servant. In this case sanction for prosecution sanction has been sought by CBI on 11.03.2016 from the parent department. Section 19 (2) of the PC Act, 1988 makes it clear that such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. Therefore, so far as the applicant is concerned sanction is to be issued by the parent department (lending department).
31. The normal time limit for granting prosecution sanction is three months. This time limit has been fixed by the Apex Court in Vineet Narain and Others v. UOI & another (1998) 1 SCC 226, wherein the .24.
need for probity and need for enforcement of accountability in public life was examined in the context of nexus between crime and corruption in public life. Government agencies are required to be entrusted with the duty to discharge their functions and obligations, in accordance with law. The basic tenet of rule of law is "Be you ever so high, the law is above you". In the case of persons against whom a prima facie case is made out and is ready for filing a chargesheet, it is for the Court to deal with the case on merit in accordance with law. If after full and final investigation prima facie if no case is made out to proceed further, the case must be closed. However, it is for the concerned investigative authorities to come to a reasonable conclusion. Having done so, it is the duty of all concerned government departments to expedite the process as a consequence of the result of the investigation. The Apex Court has, therefore, directed a time limit of three months to be strictly followed for grant of sanction for prosecution.
32. The Ministry of Health and Family Welfare should have completed the process and granted the sanction for prosecution giving due respect to the directions given by the Hon'ble Supreme Court. If not, one may reasonably think that the said Department is trying to shield or cover up such acts of corruption. Is it in tune with the exhortation - motto of 'zero tolerance to corruption - a corruption free nation'. It is for them to ponder over. The endeavour should be to eliminate the cause of .25.
delay and thereby to curb the menace of corruption. Necessity of speedy trial highlighted by the Hon'ble Supreme Court in A.R.Anthulay and the catena of decisions on the point and in Ajay Kumar Choudhary's case should have opened the eyes of such executives ruling the Department to act in tune with the directions of the Hon'ble Supreme Court. If, inspite of all these, the lending department is/are reluctant to act swiftly, it may be possible for the CBI to move the Hon'ble High Court under Section 482 of Cr.PC for getting appropriate orders or directions. It would add no credit to the lending department to move at a snail's pace causing delay in the grant/issuance of the sanction under Section 19 of the PC Act and thereby to help the accused.
33. We are of the firm view that the revocation of suspension, if any, has to be done by the borrowing department under Rule 10(1) (b) of CCS (CCA) Rules and also as per judgment in Ajay Kumar Choudhary's case. Rule 10 of CCS (CCA) Rules or its clauses and sub-clauses have not been quashed by the Hon'ble Apex Court in that case. Hon'ble Apex Court has cautioned that the right to speedy trial should not be infringed or violated.
34. Having considered all the aspects the following orders/directions are issued :
.26.
(i) The suspension of the applicant shall be revoked by the borrowing department within 15 days from today and the applicant shall be directed to report to Ministry of Health and Family Welfare after availing the permissible joining time of 15 days.
(ii) The Appointing Authority will take note of the fact that inspite of the requisition for prosecution sanction having been made on 11.3.2016 no order has been issued on the same. They will surely act in tune with the observations contained in the preceding paragraphs.
(iii) The seriousness of the allegations and the need for probity and accountability in public life, as observed by the Hon'ble Apex Court in Vineet Narain case (supra), should certainly be borne in mind by the departments concerned. Since we have directed the borrowing department to revoke the suspension as indicated in (i) above, no other direction is required to be issued in the matter.
.27.
(iv) Registry will immediately forward copies of the order directly to the (i) Director, CBI (ii) Secretary to Ministry of External Affairs, New Delhi (iii) Secretary to Ministry of Health and Family Welfare.
35. The Original Application is disposed of accordingly. No costs.
(Dated, this the 7th day of December, 2016)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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