Gujarat High Court
Chief Commissioner Of Central Goods And ... vs Sandeep Jot Singh S/O Sardar Narkewal ... on 26 August, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6087 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
CHIEF COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX,
AHMEDABAD ZONE
Versus
SANDEEP JOT SINGH S/O SARDAR NARKEWAL SINGH
================================================================
Appearance:
MR NIKUNT K RAVAL(5558) for the Petitioner(s) No. 1
MR HARSHIL G BHAVSAR(11263) for the Respondent(s) No. 1
MR RUTURAJ NANAVATI(5624) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 26/08/2022
ORAL JUDGMENT
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C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 (PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Present petition under Articles 226 and 227 of the Constitution of India is filed seeking the following prayers:
(A) Grant an early hearing to issue appropriate writ, order or direction, quashing and setting aside the order impugned dated 21.01.2022;
(B) Pending admissions, hearing and disposal of the petition be pleased to stay the effect of the order impugned dated 21.01.2022;
(C) Be pleased to grant ex parte ad interim relief in terms of Para 8(B) above.
(D) Be pleased to grant such other and further orders as deemed just and proper by this Hon'ble Court in the interest of justice.
2. Brief facts of the present petition are in nutshell as under:-
2.1 That a complaint being RC No.029 2017 A0010 dated 18.09.2017 came to be registered by the Central Bureau of Investigation (CBI) and the Anti-Corruption Bureau (ACB), Gandhinagar against Shri Sandeep Jot Singh, the then Deputy Page 2 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 Commissioner of Customs, Custom House, Mundra and Shri Hiten Thakkar, a private person under Sections 120B of the Indian Penal Code and under Sections 7 and 11 of the Prevention of Corruption Act, 1988 regarding demand and acceptance of Rs.30 Lakhs. The said complaint was registered against the said persons on the basis of the written complaint given by Shri Bajrang Lal Sharma, a private person who is running a firm in the name and style of M/s. Harshit Logistics at Gandhidham.
2.2 The allegation against the respondent is that he had demanded a bribe of Rs.30 Lakh from the complainant for clearing his role in the matter of 27 kilogram gold found concealed in the certain imported goods. During investigation by SIIB of Mundra Customs, it was submitted by the complainant that he called by respondent on 19.07.2017 and threatened by him and told that he would arrest the persons involved in the firms and Customs Broker Firms. The respondent had already taken Rs.10 Lakhs on 23.07.2017 from the complainant and on 18.09.2017 the complainant was asked by the respondent to give illegal gratification to one Shri Hiten Thakkar to whom the complainant identified as an employee of a CHA in Mundra.Page 3 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022
C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 Accordingly, a trap was arranged and caught raid-handed Shri Hiten Thakkar while accepting Rs.20 Lakh from the complainant on 18.09.2017 at his house and Shri Sandeep Jot Singh was arrested on 27.09.2017 and was produced before the CBI Special Court, Mirzapur, Ahmedabad on 28.09.2017.
2.3 Consequent upon detention of the respondent by the CBI, he was in custody for more than 48 hours and placed under suspension vide order dated 29.09.2017 and the same came to be partially modified vide order dated 27.10.2017 and placed under deemed suspension from the date of his detention by the CBI. The suspension of the respondent was continued and extended by the Competent Authority under relevant provisions of Rule 10 of CCS (CCA) Rules, 1965 from time to time vide orders dated 21.12.2017, 18.06.2018, 19.12.2018, 17.06.2019, 10.12.2019, 11.06.2020 and 08.12.2020. Being aggrieved by the extension of suspension, the respondent filed Original Application No.503 of 2020 dated 21.12.2020 before the Central Administrative Tribunal (CAT). An affidavit-in-reply dated 22.04.2021 filed by the Assistant Commissioner Central Goods and Services Tax, Ahmedabad Zone, inter alia stating that as to Page 4 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 why the respondent did not deserve the reliefs prayed for in the original application and why the same was required to be dismissed. The CAT partly allowed the original application and the suspension of the respondent beyond initial 90 days quashed and set aside and the orders of extension of suspension of the respondents were quashed and set aside.
2.4 So far as the issue of delay is concerned, the respondent was detained by CBI on 27.09.2017 and granted bail on 08.12.2017 and he, therefore, under detention for almost two and half months. It was not possible for the department to record his statement and investigate the matter from vigilance perspective during his detention period and after investigation, an UO note was sent to CVC for advice of initiation of departmental proceedings. The CVC given permission for initiation of departmental proceedings of major penalty against the respondent and in view of the same, it was not possible to issue charge-sheet with the period of three months. The sanction has been granted by the president vide order dated 26.03.2018 under Section 19(1)(a) of the Prevention of Corruption (Amendment) Act, 2018 and charge memo no.04/2019 dated Page 5 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 26.02.2019 was issued to the respondent for major penalty. That the competent authority decided to hold formal inquiry by appointing Inquiry Authority and Presenting Office and accordingly the Inquiry Officer has been appointed on 30.05.2019. At the relevant time, due to transfer of the Presenting Officer from Ahmedabad, Shri Sachin Gusia, Joint Commissioner was appointed as new Presenting Officer on 21.08.2019 and he was also not available due to transfer on deputation to Gujarat Government. That during hearing on 13.03.2020, a charged officer wanted a copy of RUD No.33 and requested for inspection of the documents. Then, Joint Commissioner has been appointed as Presenting Officer, who received charge-sheet along with its enclosure, but not received written statement of defence submitted by the Charged Officer. On 23.06.2020, during the course of hearing, Shri R. K. Tiwari, Presenting Officer did not receive authenticated copy of RUD No.33 to 37 and requested disciplinary authority to provide the said RUDs and RUDs No.34 to 37 were provided and RUD No.33 was not available and on 30.09.2020, a request was made to the CBI, Gandhinagar for providing the said documents. Page 6 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022
C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 Furthermore, on 14.10.2020, a Charged Officer informed that he carried out inspection of authenticated copy of all RUDs and he did not raise any dispute regarding the RUDs and thereafter respondent requested to allow Shri Mukesh Kumar Ojha, Superintendent Customs, Mundra to be his Defence Assistant. On 02.11.2020, Charged Officer submitted a letter and disputed the listed documents which came to be inspected on 14.10.2020 and requested to inspect the original listed documents. Further, he stated that the listed documents may be introduced and marked the evidence through the witness competent to speak on it and the prosecution witnesses were called upon on that day. 2.5 The necessary documents were provided by the CBI, Gandhinagar to the Charged Officer and requested to arrange the inspection of the original documents and the CBI informed that the original documents were submitted to the Court. After making various efforts, inspection of original documents was possible by the Charged Officer and the Presenting Officer and after inspecting the same, the respondent requested to provide certified copy of the RUDs though he had accepted that the documents were legible. That second wave of pandemic of Covid Page 7 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 19 was prevailing at the material time. In the meantime, vide letter dated 11.10.2021 the Defence Assistant informed that he was not able to attend the inquiry proceedings and accordingly, he had withdrawn his name as Defence Assistant. 2.6 It seen from the above, the change of Presenting Officer is due to administrative reason and demand of RUDs in piecemeal by the respondent and his Defence Assistant, supply of documents by Investigating Agency, CBI and request of CO to demand certified documents dispute inspection of original documents and his own request to change Defenced Assistant and engage legal practitioner as Defence Assistant are main reason for delay in enquiry and competent authority taking cognizance of the development has extended time for completion of enquiry. In the impugned order dated 21.01.2022, it is specifically stated that in the impugned order dated 21.12.2017 whereby respondent no.1 by accepting the recommendation of the Review Committee, for the first time, extended the period of suspension for a further period of 180 days w.e.f. 26.12.2017 stating therein that having regard to the gravity of offence and the fact that the officer has not been Page 8 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 granted bail till date, whereas, the applicant had already been released on bail on 08.12.2017.
2.7 Further, it is submitted that in order to place the matter before the suspension review committee, the CBI was requested the said office vide letter dated 24.11.2017 regarding other information whether the respondent had been released on bail and if he released on bail, copy of bail order may be furnished. The CBI, ACB, Gandhinagar informed that Shri Sandeep Jot Singh is still in judicial custody. The respondent was placed under deemed suspension w.e.f. 27.09.2017 and initial period of 90 days of suspension was going to expire on 25.12.2017. Accordingly, the matter was placed before the Suspension Review Committee for review of suspension of the respondent and the facts relevant for review of suspension was put forth before the Suspension Review Committee including the fact that he had not been released on bail till 30.11.2017. On 15.12.2017, the approval of Finance Minister was obtained on the recommendation of the Suspension Review Committee for continuation of suspension of the respondent for further period of 180 days w.e.f. 26.12.2017.
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C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 2.8 That the inputs of investigating agencies are obtained for taking decision on continuation / revocation of suspension of officer before moving the matter to the Suspension Review Committee. As such, there are chances that there may be a gap of more than fifteen days between the date of requisition of information and approval of the Finance Minister in some cases. Thereafter, vide letter dated 13.10.2021, Shri Tushar Ranjan Mohanty, Indian Statistical Service (Retired) informed that he would be a Defence Assistant of the respondent and he was practicing as an advocate. The Charged Officer was asked to submit the list of defence witnesses, but he has not submitted the same till date. In terms of Rule 14(8) of CCS(CCA), Rules, 1965, legal practitioner cannot be allowed to be a Defence Assistant without permission. Accordingly, the respondent was requested to put up the matter with the disciplinary authority for appointment of Shri Tushar Ranjan Mohanty as Defence Assistant, which is still under process. Accordingly, vide letter dated 15.11.2021 of inquiry authority, the decision regarding the Defence Assistant was requested for early hearing. Page 10 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022
C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 2.9 It seems from the aforesaid fact that the reasons as relied upon from various documents by the Charged Officer, demanding inspection of original documents which were with CBI Court and after accepting the same during the course of hearing, non-appointment and change of Defence Assistance in time and changes of various presenting officer has lead to delay in inquiry proceedings.
3. Feeling aggrieved and dissatisfied by the impugned order of the learned CAT, the petitioner preferred the present petition.
4. Heard Mr.Nikunt Raval, learned senior standing counsel appearing for the petitioner and Mr.Tushar Mohanty, learned counsel with Mr.Ruturaj Nanavati, learned counsel appearing for respondent.
5. Mr.Raval, learned senior standing counsel appearing for the petitioner has submitted that the Central Administrative Tribunal has not considered the fact that the delay in proceedings was at the instance of the respondent and in such fact and circumstances, it was not open to the very respondent to claim advantage of such delay. He has submitted that the facts about Page 11 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 intervening period, during which, the proceedings were pending included the period when the covid 19 virus had caused lockdown and delayed in proceedings. He has also submitted that the charge memorandum has been issued upon the respondent for major penalty on 26.02.2019 and the criminal proceedings are pending at the stage of framing of charges. He has submitted that the Government has authority to continue / extend the suspension of the government servant before or after the service of the charge-sheet, if there is sufficient jurisdiction for the same. It is submitted that in the instant case, the suspension order and suspension extension orders were issued by the competent authority in exercise of the powers conferred under Rule 10 of the CSS (CCA) Rules, 1965 and in accordance with Rule CCS (CCA) Rules. He has submitted that Shri Sandeep Yadav, this Court vide order dated 31.07.2020 modified the order dated 31.01.2020 passed by the Central Administrative Tribunal. It is submitted that Shri Sandeep Yadav had also filed Review Petition No.265 of 2020 before the High Court of Orissa and the said review petition was dismissed on 09.03.2021. He has further submitted that the department has passed the initial Page 12 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 suspension order dated 29.09.2017 with approval of competent authority and following the procedure prescribed by the law. He has also submitted that the suspension of the petitioner has been continued by the competent authority from time to time following the due procedure of law and under relevant provisions of the CCS (CCA) Rules, 1965.
5.1 Mr.Raval, learned senior standing counsel appearing for the petitioner has further submitted as under:-
(1) While deciding upon the issue, the Central Administrative Tribunal has relied upon the judgment of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India, reported in (2015) 7 SCC 291.
(2) It is the case of the respondent that the decision of the Hon'ble Apex Court has resulted into issuance of Office Memorandum dated 23.08.2016 which as per the respondent mandates issuance of the charge-sheet within 90 days.
(3) The said judgment of the Hon'ble Supreme Court has been interpreted by the High Court of Delhi in the case of Government of NCT of New Delhi Vs. Dr.Rishi Anand, Writ Petition (C) No.8134 Page 13 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 of 2017 dated 13.09.2017 and the High Court of Uttarakhand in the case of Naresh Kumar Vs. State of Uttarakhand, reported in AIR Online 2019 Utr. 530. Both the High Courts have noted that even in the case of Ajay Kumar Choudhary (supra), the Hon'ble Supreme Court had not set aside the sentence of suspension and in such case, the charge-sheet was not served till the decision was taken. In the case on hand, the charge-sheet is already served upon the respondent in 2021 as well. He has also submitted that the finding of the Tribunal is on the ground of prolonged suspension, for which, the respondent has sought accommodation for various purposes as enumerated in the time line provided and, therefore, it cannot be attributed to any deliberate or mala fide action of the petitioner. He has submitted that the present petition requires to be allowed and the impugned order of the Tribunal requires to be quash and set aside. He has relied upon the decision of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India reported in (2015) 7 SCC 291, decision of the High Court of Delhi in the case of Government of NCT of New Delhi Vs. Dr.Rishi Anand, Writ Petition (C) No.8134 of 2017 dated Page 14 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 13.09.2017 and the decision of the High Court of Uttarakhand in the case of Naresh Kumar Vs. State of Uttarakhand, reported in AIR Online 2019 Utr. 530.
6. Mr.Mohanty, learned counsel appearing for the respondent has submitted that the petitioner is a stranger to the writ petition and has no locus standi to file the petition. He has submitted that the law is now well-settled that the suspension beyond the initial ninety days is not sustainable in law, until and unless the Government has issued a major penalty charge-sheet by the time and even if charge-sheet was issued only a few days after initial ninety days, that too, the suspension has been quashed after initial ninety days. He, while relying upon the order dated 21.01.2022 of the Tribunal, has also submitted that the petitioner has taken time on the promise that they would implement the judgment impugned herein and, therefore, it is proved the fraudulent activities of the petitioner. He has submitted that once the Union of India has decided to accept the decision of the Apex Court in the case of Ajay Kumar Choudhary (supra), they cannot approbate and reprobate and argue against the applicability of the said decision and the same Page 15 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 is binding to the petitioner. He has submitted that the petition being meritless, deserves to be dismissed. He has relied upon the decision in the case of Shreedharan Kallat Vs. The Union of India, reported in (1995) 4 SCC 207, Prem Nath Bail Vs. Registrar, High Court of Delhi and another reported in (2015) 16 SCC 415, the judgment of the Delhi High Court dated 12.03.2019 rendered in the case of Union of India Vs. Dr. M. R. Diwan and another in Writ Petition (C) No.5653 of 2018. He has also relied upon the unreported decision of the Hon'ble Apex Court dated 21.08.2018 in the case of State of Tamil Nadu Vs. Promod Kumar IPS and another in Civil Appeal No.8427-8428 of 2018.
7. It is worthwhile referred to the decisions relied upon by learned counsel appearing for the respective parties.
8. In the case of Ajay Kumar Choudhary (supra), the Hon'ble Supreme Court has observed in paragraph no.11, 12, 13, 20, 21, 22 as under:-
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 Page 16 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 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.
Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Page 17 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
13. Article 12 the Universal Declaration of Human Rights, 1948 assures that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks".
14. More recently, the European Convention on Human Rights in Article 6(1) promises that:
6(1) "in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...." and in its second sub article that 6(2) "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
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 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 Page 18 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 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 contained of the Division Bench in Ranghubir 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.
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/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 Page 19 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 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.
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."
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9. In the case of Dr. Rishi Anand (supra), the Delhi High Court has observed in paragraph no.17 as under:
"17. It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons. 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......."
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10. In the case of Naresh Kumar (supra), the Uttarakhand High Court has observed in paragraphs no.29 and 30 as under:-
29. While taking note of the fact that disciplinary proceedings may commence after completion of the criminal proceedings, the Constitution Bench, in R.P. Kapur, was of the view that suspension during investigation, enquiry or trial relating a criminal charge is intimately related to disciplinary matters. The fact that an order of suspension could continue during the trial of a criminal charge, and even thereafter till completion of disciplinary proceedings, if any, initiated against the Government servant was recognised in R.P. Kapur by the Constitution bench of the Supreme Court. None of the aforesaid Constitution bench judgments of the Supreme Court in Khem Chand; V.P. Gidroniya and R.P. Kapur were noticed in the latter two bench judgment of the Supreme Court in Ajay Kumar Choudhary.
30. All subsequent decisions by benches comprised of lesser number of Judges should be read in the light of the earlier Constitution Bench decisions. (N. Meera Rani v.
Govt. of T.N). In cases where a High Court finds any conflict between the views expressed by larger and smaller benches of the Supreme Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court, in such a case, is to try to find out and follow the opinion expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court which practice, hardened as Page 22 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 it has into a rule of law, is followed by the Supreme Court itself. (State of U.P. v. Ram Chandra Trivedi; Union of India v. K.S. Subramanian). The legal position is that, in the hierarchical set up of Courts, the High Court is bound by the decisions of the Supreme Court. However, when a smaller bench of the Supreme Court lays down a proposition contrary to and without noticing the ratio decidendi of the earlier larger Benches, such a decision will not become the law declared by the Supreme Court so as to have a binding effect under Article 141 of the Constitution on all the Courts within the country. (Sakinala Harinath v. State of A.P). Judicial discipline requires that the opinion expressed by larger benches of the Supreme Court, in preference to those expressed by smaller benches of the Supreme Court, should be followed. (K.S. Subramanian; O. Ramachandra Reddi v. The Director, DRDL, Hyderabad and Buddana Venkata Murali Krishna)"
11. In the case of Shreedharan Kallat (supra), the Hon'ble Supreme Court has observed in paragraph no.5 as under:-
"5. Assuming that the respondents could challenge fixation of seniority of the appellant as the order which furnished foundation for the determination of seniority, was passed without impleading the respondents, the scope of such petition could be limited. In service matters where validity or interpretation of rule is concerned any order passed by the courts which achieves finality is binding on the Department. If the court is satisfied that any employee has been prejudiced or his right under Article 14 has been violated it may interfere in his favour. But the Department Page 23 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 is precluded from challenging the interpretation given by the court. Since the earlier order has been upheld by this Court the order could be set aside by this Court. The Tribunal could not have passed an order which resulted in disturbing the finality about interpretation of rule specially when the S.L.P. had been dismissed by this Court."
12. In the case of Prem Nath Bail (supra), the Hon'ble Supreme Court has observed in paragraph nos.26 and 28 as under:-
"26. Time and again, this Court has emphasized that it is the duty of the employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee.
28. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit.Page 24 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022
C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year.
13. In the case of M. R. Diwan (supra), the High Court of Delhi has held that if disciplinary proceedings are not concluded within a year, the same will lapse, even if the charged officer is responsible for any delay.
14. We have considered the submissions canvassed by the learned counsel appearing for the respective parties. We have perused the materials available on record and also the decisions cited at the bar. We have also gone through the impugned order passed by the Tribunal.
15. The Central Administrative Tribunal, while passing the impugned order dated 21.01.2022 has observed in paragraphs no.14 and 16 as under:-
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C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022
14. It can be seen that there is no instance of tampering by the applicant or any hurdle created by the applicant to initiate disciplinary proceedings against him. Against the applicant the disciplinary proceeding was initiated in the year February 2019 and the same is yet at enquiry stage only. In criminal proceedings same is at the stage of framing of charges. It is not the case of respondents that due to reasons attributed to the applicant the respondents could not meet with the time line stipulated in the OM issued by DoP&T (supra) for issuing belated charge memorandum.
The disciplinary authority while extending the period of suspension, recorded one of the reason that the applicant has been charged with serious offence. In this regard it is required to mention that it is trite of law that one the reason that the applicant has been charged with serious offence. In this regard it is required to mention that it is trite of law that once the disciplinary proceedings are initiated for alleged misconduct against the employee, the said proceeding should reach to its logical conclusion and till then it cannot be said that the alleged charges are proved and officer cannot be held guilty before the trial. Under the circumstances, the submission of the respondents that the competent authority has recorded ground for extension of the suspension which is suffice to justify the impugned order is not acceptable and we are in agreement with the submission of the counsel for the applicant that the continued suspension of the applicant is contrary to the DoP&T instructions on the subjects as also the law laid down by the Hon'ble Apex Court.
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15. On a conjoint reading of the judgment passed by Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra) and the judgment of Hon'ble High Court of Orissa in case of Sandeep GM Yadav (supra) as also judgment passed by Delhi High Court in case of Rishi Anand (supra) and the factual matrix in the present case, the respondent failed to follow the binding instructions contained in OM dated 23.08.2016 and 21.07.2016 (supra) of DoP&T while reviewing the suspension of the applicant. The reason assigned for extending the period of suspension is not acceptable in light of dictum laid down in the aforesaid judgments as also the spirit of provision of Rule 10 of CCS (CCA) Rules, 1965 since the respondent failed to adhere to the time line stipulated in OM issued by DoP&T and it is trite law that suspension cannot take the form of punishment. Resultantly, the very first order of extension of suspension dated 21.12.2017 suffers from legal infirmities. Accordingly, the subsequent orders for extension of suspension of the applicant which are impugned herein are not tenable. We, at this stage, also take note of the fact that the headquarter of the applicant has already been changed from his original place of working i.e. Mundra to Ahmedabad. We are convinced that no useful purpose will be served by continuing the applicant under suspension are longer.
16. As a result of above, the applicant is entitled to succeed. The present OA is accordingly partly allowed with following directions:-
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C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022
(i) Suspension of the applicant beyond initial 90 days is hereby set aside and quashed.
(ii) As a consequence, the impugned orders dated 21.12.2017, 18.06.2018, 17.06.2019, 10.12.2019, 11.06.2020 and 08.12.2020 (Annexures A/1 to A/6) are quashed and set aside.
(iii) As a consequence of quashing of the suspension, the applicant shall be reinstated within one month from the date of receipt of copy of this order.
(iv) The applicant shall be entitled to salary minus the subsistence allowance already received by him for the interregnum period i.e. from the date when his initial suspension ended after 90 days and til the date he is reinstated in service with simple interest @ 8%.
(v) Initial period of suspension shall be decided in accordance with the rules on the subject.
(vi) This order will not however, come in the way of the respondents in further proceeding with the memorandum of charges dated 26.02.2019 in accordance with law.
16. The Central Administrative Tribunal, while passing the impugned order dated 27.04.2022 has observed as under:-
1. After arguing for some time, Shri Tushar Mohanty, counsel for the applicant submits that the applicant will be Page 28 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 satisfied, if appropriate direction be issued to the competent authority to complete the pending departmental inquiry within stipulated time framed with respect to charge memorandum dated 26.02.2019.
2. On the other hand, Shri H. D. Shukla, standing counsel for the respondents submits that it is expected that the applicant will cooperate to complete the pending departmental inquiry expeditiously.
3. Considering the aforesaid submissions, as also taking into facts that the departmental inquiry was initiated against the applicant in the year 2019, without expressing any opinion on the merits of the case of the applicant, we deem it fit to dispose of this OA with a direction to the competent authority that pending departmental inquiry initiated against the applicant be concluded expeditiously, but later than six months from today. It is also expected that the disciplinary proceedings be also completed expeditiously on receipt of the Inquiry Report.
4. OA stands disposed of accordingly. No order as to costs."
17. It is thus clear from the decision of Ajay Kumar Choudhary (supra) that a temporary phase is of a suspension and, therefore, essentially and as laid down emphatically the same should be of a shorter duration. This surely is not a punitive action. Ordinarily, all the departmental and disciplinary proceedings commence with delay. It also takes a while for the Page 29 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 department to draw the charges and proceed with the inquiry culmination of which is always quite late. Therefore, not only the suspended person suffers from ignominity from the society, but it also needs to suffer this phase awaiting the outcome and the very process is quite protracted. Eventhough, no one ends to deliberately procrastinate the same.
18. The Apex Court has been emphatic that even though the right to speedy trial which has been ensured in the Constitution is not specifically incorporated so far as the departmental proceedings are concerned. Nevertheless, it should be construed as interwoven. The Court has acquainted with the proviso of Section 167(2) of the Cr.P.C. to moderate the suspension order in case of departmental inquiry by holding in unclear terms that Section 167(2) of the Cr.P.C. speaks of personal freedom. However, the human dignity and preservation of respect as well as right to speedy trial needs to be put on the same pedestrian and, therefore, it has been directed that the suspension order should not extend beyond period of three months. If within the said period, the memorandum of charges is not served on delinquent officer, they shall be need to be a reasoned order Page 30 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 passed for extension of suspension. Of course, the employer is given a freehand to transfer the concerned person to any department in any of its office within or outside the State so as to severe the ties with the local or personal contact to stop any misuse of investigation against the person. The Court, thus, has emphasized on the said time limit. In the case of Dr. Rishi Anand (supra), the Delhi High Court has made it clear that there is no automatic lapsing of suspension at the expiry of three months if the charge memo or charge-sheet is not issued during the period. It is always not visible for surviving the charge-sheet on officer concerned within a period of 90 days or even the extended period and then may be time where it would be undesirable to recall the suspension and put him in position once again. The Apex Court in the case of Prem Nath Bail (supra), also has emphatically held that it is for the employer to ensure that the departmental inquiry initiated against the employee is concluded within the shortest possible time by taking priority measures. In cases where a person is placed under suspension during the pendency of such inquiry, all the more reason for the employer to ensure that the inquiry is concluded in the shortest Page 31 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 possible time, not only to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee, but also because the employer has to incur huge amount without taking any work from the person concerned. All these aspects has led the Court to hold that sincere endeavor must be made to conclude the departmental proceedings within six months as an outer limit and once initiated, where it is not possible for the employer to so do it, then efforts should be made to conclude the same within reasonably extended period depending upon the nature of inquiry but surely not for more than a year. The Delhi High Court went to the extent of saying that if the charged officer is responsible for the delay, the disciplinary proceedings would delay. However, we are not wanting to stretch that aspect to that extent. The DOPs issued will also lead to hold that on a Non-Sensitive post, the person can be posted so that some work could also be taken from him, if there is a stretch disciplinary proceedings.
19. We have taken note of the fact that the respondent has been under suspension from 29.09.2017 and the same has been Page 32 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 extended time and again. His charges are also quite serious of demanding bribe of Rs.30,00,000/- in his position for clearing 27 kilogram gold found concealed in imported goods. Rs.10 Lakh has already delivered and Rs.20 Lakh ought to be given to one Hiten Thakkar. A trap was arranged and Hiten Thakkar was caught raid-handed. In these circumstances, if the employer has chosen not to place him under suspension and reinstated back in the Custom Department, at Mundra however, not only one year of initiating inquiry is long over so almost five years since the manners under suspension and is also facing departmental proceedings. In such circumstances, on Non-Sensitive post, as has been held by the Apex Court, he can be always posted if delay has been quashed not on account of delinquent. We are given to understand that the departmental proceedings be surely over within a period of three months and, therefore, we have chosen not to insist on implementation of the order immediately.
20. Considering the facts and circumstances of the case and the charge report as well as materials placed on record, we are of the opinion that the departmental proceedings initiated against the respondent is not completed within stipulated Page 33 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022 C/SCA/6087/2022 JUDGMENT DATED: 26/08/2022 period. We conclude that the departmental proceedings initiated against the respondent shall be completed within a period of three months from the date of receipt of the copy of this order and if it is not completed within stipulated period, the competent authority shall reinstate the petitioner on Non-Sensitive post within a week from the date of completion of three months. It is also expected that the competent authority shall, either appoint a person for conducting the inquiry separately or allot the work to the said officer or alternatively, they may create supernumerary post of Non-Sensitive in nature, so in future, such kind of litigation can be avoided.
21. In view of the aforesaid discussions and observations, the present petition is disposed of accordingly.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 34 of 34 Downloaded on : Sun Dec 25 00:19:53 IST 2022