Central Administrative Tribunal - Delhi
Phanikant Mishra S/O Vijay Kant Mishra vs Union Of India Through on 30 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.484 of 2010 This the 30th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SMT. MEERA CHHIBBER, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Phanikant Mishra S/O Vijay Kant Mishra, Superintending Archaeologist (under suspension), Archaeological Survey of India, Officers Quarter in Office Complex, Patna circle, J.C. Road, Antaghat, Patna-800001. Applicant (By Shri Sanjay Kumar Das, Advocate ) Versus 1. Union of India through Secretary, Ministry of Culture, Shastri Bhawan, New Delhi-110001. 2. Director General, Archaeological Survey of India, Ministry of Culture, Janpath, New Delhi-110001. 3. Shri D. V. Sharma, Director (Archaeology), East Region, Kolkata through Director General, Archaeological Survey of India, Ministry of Culture, Janpath, New Delhi-110001. 4. Shri A. K. Sharma, Director (Archaeology), Office of Director General, Headquarters (Monuments), Archaeological Survey of India, Ministry of Culture, Janpath, New Delhi-110001. 5. Dr. Urmila Sant, Director (Archaeology), Office of Director General, Headquarters (Antiques & Museum), Archaeological Survey of India, Ministry of Culture, Janpath, New Delhi-110001. 6. Shri S. V. Venkateashaiah, Director (Archaeology), South Region, Bangalore through Director General, Archaeological Survey of India, Ministry of Culture, Janpath, New Delhi-110001. Respondents ( Ms. Rekha Palli with Ms. Punam Singh, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Phanikant Mishra, the applicant herein, a Group A officer of Archaeological Survey of India, for his involvement in two criminal cases of corruption, was under suspension at the time his case for promotion to the post of Director (Archaeology) came for consideration. This consideration came about at a time when the initial order of suspension had not been reviewed within time stipulated under the rules. The applicant was successful in getting a declaration from this Tribunal in his earlier OA that his suspension beyond the period prescribed for review thereof would be illegal. In the present OA the applicant states that once, a declaration has been given by this Tribunal that his suspension at a time when his case for promotion was considered and put into sealed cover was illegal, it should be deemed as if there was no suspension in existence, and, therefore, the respondents are obliged to open the sealed cover and if found fit, he needs to be promoted. We may mention that pursuant to the orders in the first OA filed by the applicant, the order of suspension was revoked, but simultaneously he was again put under suspension. The order under which the applicant is even now under suspension has not been challenged in the present OA.
2. The facts culminating into filing of the present OA and the points involved for determination, have since already been noted in our order dated 16.7.2010, which we bodily lift and reproduce hereunder:
Phanikant Mishra, the applicant herein, is a Group A officer of Archaeological Survey of India. He is involved in two criminal cases. A criminal case u/s 120B IPC read with Section 7 of Prevention of Corruption Act was registered against the applicant, Superintending Archeologist, while posted at Patna Circle, by Anti Corruption Branch, CBI, Patna. He was arrested on 8.12.2008 and remanded to judicial custody. Chargesheet is yet to be submitted by the prosecution. It is a trap case. The applicant is alleged to have demanded a sum of Rs.90000/- as bribe from one Dhirendra Kumar through Rajesh Kumar, an LDC in the Archaeological Survey of India, Patna, for passing his bill of Rs.850454/- in respect of supply of materials at archaeological site at Chainpur under ASI Sasaram Sub-circle. Dhirendra Kumar, it is the case of the prosecution, did not want to give bribe to the applicant. He submitted a complaint to SP, CBI. Follow up action was taken by CBI and two independent witnesses also joined the team. Pre-trap formalities were carried out and the applicant was caught red-handed accepting bribe of Rs.90000/-. The Government on 13/16.4.2010 has already granted sanction to prosecute the applicant. Meanwhile, CBI vide its letter dated 6.4.2010 has informed that a fresh case no.RC0232008A0031 against the applicant has been registered by it for possession of assets disproportionate to his known sources of income, and that the investigation in the said case is under process.
2. The applicant through the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985 seeks a declaration from this Tribunal that the sealed cover adopted in his case in the matter of promotion to the post of Director (Archeology) is wholly illegal and de hors the rules. He seeks direction to be issued to the respondents to open the sealed cover and promote him on the said post.
3. The facts as emerge from the pleadings of the parties reveal that because of involvement of the applicant in a criminal case, he was suspended vide order dated 12.12.2008, which was reviewed on 27.4.2010. As the order of suspension was not reviewed within the statutory period as mentioned under relevant rules, the applicant filed OA No.488/2010 complaining about his continued suspension without reviewing the same as per mandate of law. His plea was that once the order of suspension had not been reviewed by a duly constituted committee on that behalf, his continued suspension would be illegal. The said OA came to be disposed of by us vide order dated 1.6.2010, wherein we held that Admittedly, in the present case, the review of suspension has been done only on 27.4.2010. That being so, suspension of the applicant after expiry of 90 days from 12.12.2008 would be illegal. The order carrying out review of the suspension order dated 12.12.2008 shall also be illegal and thus has to be set aside. In the present OA the plea raised by the applicant is that his continued suspension, and in particular, on the date when the DPC met and his juniors were promoted, i.e., 7.7.2009, would be illegal, and he cannot thus be said to be under suspension, and that inasmuch as, in the criminal cases no chargesheet has been filed, the DPC could not put his case under sealed cover and the same, in any case, now needs to be opened, and if the applicant is otherwise found fit, he has to be promoted.
4. Learned counsel representing the parties made submissions based upon the rules dealing with suspension and the one dealing with the circumstances under which sealed cover procedure is to be adopted, as also the case law. While preparing the judgment, we thought that another question is involved in this case. The same is as to whether suspension of an employee, which may not be valid having not been reviewed within the statutory time, and till such time the same is to be declared illegal or invalid, could it be said as if there was no suspension at all. Could the DPC, when suspension was continued, simply ignore the same as no review has been done within the statutory period, or that the continued suspension of the applicant had to be declared as invalid or illegal. Further, pursuant to our observations made in order dated 1.6.2010 in OA No.488/2010, suspension of the applicant has been reviewed and he has been once again put under suspension vide order dated 28.6.2010. This order has not been challenged and, therefore, the applicant as at present is under suspension. Would in these circumstances the instructions covering the situation under which the case of an employee may be put under sealed cover be applicable, is yet another question on which no arguments were addressed. It would not be fair to the parties if we determine these issues without putting them to notice.
5. List the matter again for hearing on 30.07.2010. Copy of this order be given to learned counsel for parties in advance so that they can prepare the case. Records of already decided OA No.488/2010 shall be tagged with this OA for facility of reference. [[ Vide order dated 25.8.2010, while noting that this Tribunal would need more assistance from the counsel representing the parties on the points referred to in our order reproduced above, and further considering the importance of the questions posed, we referred this matter to the larger Bench. This is how this matter is before the Full Bench.
3. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. It may be mentioned that the applicant was placed under suspension because of his involvement in a criminal case on 12.12.2008, which was reviewed on 27.4.2010. The order placing the applicant under suspension dated 12.12.2008 is valid and there was never a question mark on the said order. Order dated 27.4.2010 reviewing the order dated 12.12.2008 was questioned as the same came to be passed far after the statutory period required for review of suspension under rules or instructions, as the case may be. In addition to the illegality of the order dated 27.4.2010, at the most, it could be urged that continuation of suspension of the applicant after the statutory period for review was over and the same was not done, would be illegal. In the earlier Original Application of the applicant bearing OA No.488/2010, we set aside the order dated 27.4.2010. In para 2 of the judgment we have also mentioned that since review of suspension had been done only on 27.4.2010, the suspension of the applicant after expiry of ninety days from 12.12.2008 would be illegal, as also that the order carrying out review of the suspension order dated 12.12.2008 would be illegal and thus needed to be set aside. The declaration that we have given is that the suspension of the applicant after expiry of the statutory period for review from 12.12.2008 would be illegal and so would be the order dated 27.4.2010 revoking the suspension of the applicant. The case of the applicant for promotion came to be considered by the DPC that was held on 7.7.2009, by which period, admittedly, ninety days had elapsed from the date of the order of suspension. While disposing of the OA of the applicant, we mentioned that the facts of the case were such that if the Government may, on assessment of the facts, come to the conclusion that the applicant needed to remain under suspension, in our considered view, it would be at liberty to do so. While revoking the suspension of the applicant pursuant to our judgment, the applicant has been simultaneously put under suspension once again.
4. In the context of the facts as fully detailed above, two pertinent questions that arise would be (i) as to whether when the order of suspension beyond ninety days from 12.12.2008 was subsisting having not been held to be illegal and when the case of the applicant for promotion came up on 7.7.2009, can it be said that the order of suspension without declaration of it being illegal, would it be deemed to be so; to put it differently, whether the continuation of suspension of the applicant could not be said to be a dead inert affair, and could be said to be in existence for the purpose of putting his case of promotion in sealed cover; and (ii) as to whether when now the applicant has again been placed under suspension and the said orders are neither under challenge in the present OA nor by way of separate proceedings, even if the answer to the question as mentioned above may go in favour of the applicant, would he be entitled to seek direction for re-opening of the sealed cover, and if found fit, to be promoted? We may take in hand the second question as posed above, in the first instance, as that may not pose any serious thought.
5. Procedure and guidelines for promotion of government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation, was earlier dealt with in DOP&T OM No.22011/2/86-Est.(A) dated 12.1.1988. The said OM along with all other OMs earlier issued on the subject has been superseded by DOP&T OM No.22011/4/91-Estt.(A) dated 14.9.1992. The instructions in vogue since 14.9.1992, insofar as the same are relevant, read as follows:
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
(i) Government servants under suspension;
(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a criminal charge is pending. Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion:
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC, are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated or the charges against him and the provisions contained in this OM will be applicable in his case also. The applicant, at the time when his case came up for consideration for promotion, was under suspension. Assuming that he was not under suspension, by a fiction, or is deemed not to be under suspension by virtue of our orders passed in favour of the applicant in the earlier OA, but is now under suspension, which suspension, we may reiterate, has neither been under challenge in the present proceedings nor in any other proceedings, the position would be the same as that may be available when the case of the applicant was considered for promotion. If the case of the applicant is considered as if he was not under suspension and, therefore, his case could not be kept under sealed cover, he yet could not be promoted by virtue of provisions contained in para 7 of the instructions dated 14.9.1992 reproduced hereinabove. If the applicant is deemed not to be under suspension, then at the most, a direction can be given to the respondents to constitute a review DPC to find out if he is fit for promotion, but even if the review DPC may recommend him for promotion, the applicant cannot be promoted, once again being under suspension at the time the order may be issued for his promotion. The only direction that thus can be issued by this Tribunal is to constitute a review DPC for considering the case of the applicant for promotion and if he is found fit and even recommended for promotion, not to do so, as the applicant is once again under suspension. This would be an exercise in futility as it would not give any advantage to the applicant, and, therefore, there is no need to issue even this direction. We may mention that there were absolutely no arguments raised whatsoever on behalf of the applicant to show that despite his being under unchallenged suspension, on opening of the sealed cover, and if so recommended by the DPC, he shall have to be promoted. This Tribunal had an occasion to deal with instructions of 1988 and 1992 in OA No.1185/2007 in the matter of Om Prakash v Union of India, decided on 3.6.2008, wherein we held that Para 7 of the instructions, be it the instructions of 1988 or 1992, would be applicable only with regard to circumstances enumerated in para 2, and no others. We are of the firm view that sealed cover procedure can be adopted only in circumstances enumerated in para 2 of instructions of 1992, and even if the circumstances as mentioned therein may surface after the DPC might have cleared a government servant for promotion, he may yet not be promoted, as in that event it has to be considered to be a case of deemed sealed cover procedure. It is a different matter that in the case aforesaid the circumstances in which the case of the applicant therein could be kept in sealed cover were not in existence, whereas in the present case, as mentioned above, the applicant is under suspension and circumstances under which his case could be kept in sealed cover are in existence even as on date.
6. Insofar as, the first question framed for adjudication, as mentioned above, is concerned, we may mention that illegality of the order dated 27.4.2010 may not have much bearing upon the controversy in issue. The crucial question would be as to the illegality of continued suspension of the applicant and, in particular, on the date when his case came up for consideration for promotion. The applicant would want this Tribunal to hold that since the original order of suspension was not reviewed within the stipulated time, it shall have to be deemed as if not in existence at all when his case was considered for promotion. The applicant for his involvement in the criminal cases was suspended on 12.12.2008. This order was in existence on 7.7.2009 when the DPC met to consider his case for promotion. If the applicant was not to challenge the order dated 27.4.2010 reviewing his suspension and ordering continuance thereof, the same would have existed. What can be positively said is that unless continuation of the applicant under suspension or the order dated 27.4.2010 were to be declared illegal, the applicant would remain under suspension. Continuation of suspension of the applicant after the statutory period for review thereof, had to be declared illegal. Whether continuation of his suspension being against the instructions would be illegal, void or voidable, may not make much difference, as by now it is settled proposition of law that even void orders have to be set aside and cannot be just ignored. We are of the firm view that continuation of suspension of the applicant after ninety days without there being any review, would, at the most, be illegal and would not be void. There may be a debate as regards requirement of seeking declaration of the orders that may be void, but there cannot be any two views that illegal orders, in any case, have to be set aside. This Tribunal in the earlier OA of the applicant has only held continuation of the applicant under suspension to be illegal and not void, and, therefore, unless the applicant would get a declaration as regards illegality of his continued suspension, the same would continue. Assuming continuation of suspension of the applicant to be void, in our considered view, even then the applicant had to obtain a declaration for the same. There would be no need to delve on the difference between void and voidable orders, as the settled position in law as on date is that even void orders have also to be got so declared. In the Punjab and Haryana High Court, it has been consistently held that there would be no need to challenge void orders; the same can be ignored, and for getting desired relief on the basis of orders which may be void, no limitation is involved in filing a suit. The said consistent view, so observed by the Honble Supreme Court, held by the Punjab & Haryana High Court came to be overturned in State of Punjab & others v Gurder Singh [(1990) 3 SCR 663]. Brief facts of the case aforesaid reveal that the employee was appointed as Sub Inspector. For his absence from duty, his services were terminated in 1977. He filed a suit in 1984 seeking declaration that the termination order was against the principles of natural justice, terms and conditions of his employment, void and inoperative, and he continued to be in service. The suit was resisted on merits as also bar of limitation. The trial court dismissed the suit holding that the same was barred by time. In appeal before the first appellate court, the plaintiff succeeded, and regular second appeal filed on that behalf by the State came to be dismissed by the High Court. The matter was taken to the Supreme Court. As a prelude to the judgment, it has been mentioned in the judgment of the Apex Court reversing the orders of the first appellate court and the High Court that these were not the only cases in which the High Court had taken the view that there would be no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative, and that the High Court had repeatedly held so. While giving the facts of the case, it was observed that In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. According to the plaintiffs, their dismissal from service was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continued to be in service. It was mentioned that for the purpose of the cases it may be assumed that the order of dismissal was void, inoperative and ultra vires, and not voidable. Even assuming so, it was still held that But nonetheless the impugned order has atleast a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. The observations of Lord Redcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769, which read as follows, were relied upon:
An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. The Honble Supreme Court also referred to the view of Prof. Wade in his book Administrative Law (6th Ed. P.352), which reads, thus:
The truth of the matter is that the Court, will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another. The conclusion arrived at by the Apex Court reads, thus:
It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.
7. In Shiv Chander Kapoor v Amar Bose [(1990) 1 SCC 234] it was held that it is for the person assailing validity of an order to get such a declaration from a proper forum in proper proceedings. The facts in short leading to the conclusion as mentioned above reveal that section 21 of the Rent Act permits creation of a tenancy for limited period where the landlord does not require the whole or any part of premises for a particular period, and it is to be let for residence. The said provision further states that if on expiry of the said period the tenant does not vacate such premises, then notwithstanding anything contained in section 14 or in any other law, the controller may on an application by the landlord place the landlord in vacant possession of the premises by evicting the tenant and every other person who may be in occupation of such premises. The Controller grants permission for creation of tenancy for a limited period on being satisfied that that the landlord does not require such premises for a limited period only, and the said premises is to be let as a residence in terms of an agreement in writing between the landlord and the tenant. When the tenant would not vacate the premises despite the limited tenancy period and took the plea that the Controller had not satisfied himself with regard to the requirement of limited tenancy, it was held that such a declaration has to be obtained.
8. In State of kerala v M. K. Kunhikannan Nambiar [(1996) 1 SCC 435], it has been held that It is true that the proceedings dated 28.6.1977 were observed to be void in law in CRP No.3696 of 1977, filed by the first respondent. In our opinion, even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter partes until it is successfully avoided or challenged in a higher forum.
9. In Pune Municipal Corporation v State of Maharashtra & others [(2007) 5 SCC 211], it has been held that It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. The view of Prof. Wade, reproduced hereinbefore, was relied upon. Further, the Honble Supreme Court, for the view as mentioned above, also relied upon observations of Lord Redcliffe in Smith v East Elloe Rural District Council (supra), also reproduced hereinbefore.
10. Learned counsel representing the applicant would not cite any judicial precedents to the contrary to support his contention. There is reference to some judicial precedents mention whereof we shall make hereinafter, but on the crucial question for determination, as mentioned above, there are practically no arguments. We are of the considered view that when the case of the applicant for consideration of his promotion came up before the DPC, he was under suspension through a valid order, and unless his continued suspension after the stipulated period was not declared to be illegal by a court of competent jurisdiction, the same cannot be said as if non-existent. The learned counsel for the applicant cited decisions of the Honble Supreme Court in Union of India & others v K. V. Jankiraman & others [(1993) 23 Administrative Tribunals Cases 322], Union of India & others v Sangram Keshari Nayak [(2007) 6 SCC 704] and Union of India & others v Dipak Mali [SLP(C) No.6661 of 2006, decided on 15.12.2009]. There can be no quarrel with the proposition of law evidenced through the said judgments. Most of the judgments deal with the circumstances under which case of an employee can be kept in sealed cover, and/or consequences of not reviewing order of suspension within the stipulated time. The same may not be relevant for purposes of deciding the controversy involved in present case. Surely, continuation of suspension of an employee after the stipulated period, if no review is done, would be illegal, but that would not automatically mean that the same shall be considered as if non-existent at the time when his case may have come up for consideration for promotion.
11. In view of the discussion made above, finding no merit in this Original Application, the same is dismissed, leaving, however, the parties to bear their own costs.
( Dr. Ramesh Chandra Panda ) ( Meera Chhibber ) ( V. K. Bali )
Member (A) Member (J) Chairman
/as/