Central Administrative Tribunal - Delhi
R C Bakshi vs M/O Finance on 17 March, 2025
1
OA No. 3053/2021
Item No.36/C-5
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3053/2021
Reserved on : 25.02.2025
Pronounced on : 17.03.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
R.C. Bakshi, Age 78 years
S/o Shri S.L. Bakshi
Retd. Income Tax Inspector, Gr. 'B'
R/o 58, South Park Apartments
B-Block, Kalkaji, New Delhi-110019.
.. Applicant
(By Advocate: Mr. B.K. Berera)
Versus
1. Union of India through
The Secretary
Department of Revenue
Ministry of Finance
North Block, New Delhi.
2. The Chairman
Central Board of Direct Taxes
Department of Revenue
Ministry of Finance
North Block, New Delhi.
3. The Principal Commissioner of Income Tax - 17
Room No.1402, 14th Floor
E-2 Block, Civic Centre,
New Delhi.
.. Respondents
(By Advocate: Mr. Manish Kumar)
2
OA No. 3053/2021
Item No.36/C-5
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) In the present O.A., the applicant is aggrieved by the order dated 09.01.2020 passed by the respondent No.3 depriving him the pay and allowances as per the order of this Tribunal dated 05.04.2006 passed in O.A. No. 2261/2005, upheld by the Hon'ble High Court of Delhi as well as the Hon'ble Supreme Court, by wrongly interpreting the provisions of FR 54-B. By virtue of this O.A., the applicant has sought for the following relief(s):-
"(a) The Hon'ble Tribunal may be pleased to quash order dated 09-01-2020 passed by the Pr. Commissioner of Income Tax depriving the legitimate rights of the Applicant regarding pay and allowances as granted by the Hon'ble Tribunal in OA No 2261/2005 dated 05-04-
2006.
(b) Direction to respondents to pass an order under FR 54-B (3) as the Hon'ble Tribunal the competent authority has already directed the respondents to deem the Applicant as reinstated in service w.e.f 26-06-1997 which has been upheld by the Hon'ble High court and Apex Court.
(c) Direction to respondents to grant the full pay and allowances to which the Applicant would have been entitled, had he not been suspended:
(d) Any other order/ relief as this Hon'ble Tribunal may deem fit under the present facts and circumstances of the case."
2. Highlighting the facts of the case, learned counsel for the applicant submitted that the applicant, while working as Income Tax Officer in New Delhi Ward 12(2), was falsely implicated in a case under Prevention of Corruption (PC) Act. On alleged charges 3 OA No. 3053/2021 Item No.36/C-5 of corruption, in a trap laid by the CBI on 26.06.1997, the applicant was detained in custody and released on bail on 01.07.1997. Since he was detained in custody for more than 48 hours, he was placed under deemed suspension vide order dated 16.07.1997. The CBI registered a case vide RC No.52 (A 0/97-DLI and CC No.54/99 was instituted in the Court of Special Judge, Delhi, in which he was honourably acquitted vide judgment dated 12.08.2005, on the ground that the complainant in the case died. 2.1 The CBI also registered second case against the applicant as RC 54 (A) 97-DLI u/s 13(2) r/w 13(1)(e) dated 30.06.1997 under the PC Act for possessing assets disproportionate to his known source of income, in which he was arrested on 01.07.1997 at 10.45 p.m. and released on bail on 02.07.1997, thus, his detention in custody was less than 48 hours.
2.2 After acquittal vide judgment dated 12.08.2005, the applicant preferred a representation with a prayer to revoke his suspension w.e.f. 26.06.1997. In response thereto, the respondents informed that his case was reviewed by the Review Committee and in view of pendency of second case registered under RC No.54(A)/97-DLI, his suspension was extended for further period of 180 days which was challenged by him in O.A. No. 2261/2005. The said O.A. was allowed by this Tribunal vide Order dated 05.04.2006 directing that the applicant shall be deemed to have been reinstated in service w.e.f. 26.06.1997. It was left open to the 4 OA No. 3053/2021 Item No.36/C-5 respondents to decide the manner in which the period of suspension shall be treated in terms of FR 54 B. Liberty was given ·to the respondents to pass an order under Rule 10 (1)(b) of CCS (CCA) Rules, 1965.
2.3 The aforesaid Order was upheld by the Hon'ble High Court of Delhi vide Judgment dated 26.02.2015 in WP(C) No. 15756/2006 as well as by the Hon'ble Supreme Court vide Order dated 18.07.2018 in SLP (C) No. 3830/2016.
2.4 A Contempt Petition No. 244/2019 was filed by the applicant which came to be closed vide Order dated 29.02.2020, pursuant to the impugned order dated 09.01.2020 passed by the respondents.
2.5 No disciplinary proceedings were initiated against the applicant and no order of continued suspension was passed by the Competent Authority under Rule 10(1)(b). However, the respondents after lapse of about 14 years have passed the impugned order dated 09.01.2020 interpreting FR 54-B wrongly to deprive the applicant from his legitimate dues.
3. The learned counsel for the applicant referred to provisions of FR 54-B (3), which reads as follows:
"(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended."5 OA No. 3053/2021
Item No.36/C-5
4. The applicant has relied upon the following judgments/orders of this Tribunal:
(i) Ernakulam Bench's Order dated 25.09.2001 in T.P. Gopinath vs Union of India & Ors.; and
(ii) Order in A.J. John vs Superintendent of Post Offices and Ors., 1990 (6) SLR 327, following the ruling of the Apex Court in Brahma Chandra Gupta vs Union of India, (1984) 2 SCC 433.
5. Per contra, learned counsel for the respondents placing reliance upon the averments made in the counter affidavit, specifically denied that the applicant was falsely implicated in a case under PC Act and submitted that the applicant was trapped by the CBI, which is a prime investigating agency, after recording reasons and registering a case before the Special Judge under RC No.52(A)/97-DLI. He was placed under deemed suspension vide order dated 16.07.1997 w.e.f. the date of detention, i.e. 26.06.1997, in terms of Rule 10 (2) of CCS (CCA) Rules, 1965. 5.1 He further denied that FR 54-B was wrongly interpreted while passing the order dated 09.01.2020 and averred that this Tribunal passed the order dated 05.04.2006 with a direction to decide the period of suspension in the light of decisions of the Apex Court in Rajeev Kumar's case and FR 54-B without quoting any sub-rule of FR 54-B. It was also mentioned in the 6 OA No. 3053/2021 Item No.36/C-5 Order that 'However, it shall not preclude the respondents from passing an order under Rule 10 (1) (b) of CCS (CCA) Rules, 1965, if so advised'. The suspension period was further extended vide order dated 09.09.2005 due to pendency of second case before the Trial Court for possessing disproportionate assets. Therefore, the extension of suspension period vide order dated 09.09.2005 is fully justified in terms of the above Rule. 5.2 He further clarified that FR 54-B(3) is not applicable in the present case and the Competent Authority passed the order dated 09.01.2020 under FR 54(1)(b) treating the period of suspension as "spent not on duty", as the suspension was never revoked by the respondents and this Tribunal did not preclude the respondents from passing an order under Rule 10(1)(b) of CCS (CCA) Rules, 1965. Accordingly, the order dated 09.09.2005 was passed in line with the aforesaid rule and the applicant was under
suspension till the date of his superannuation and outcome of the decision of CAT. Therefore, the applicant is not entitled to the relief prayed for in the present O.A. and the same is liable to be rejected.
6. Heard the learned counsel for the respective parties at length and carefully perused the pleadings/material and judgments placed on record.7 OA No. 3053/2021
Item No.36/C-5
7. On a perusal of the record, we observed that in order dated 29.02.2020 passed in C.P. No. 244/2019 in O.A. No. 2261/2005, the following has been noted:-
"6. The challenge in the OA No. 2261/2005 was to the continued suspension of the applicant despite his being acquitted. After taking the various facts into account, the Tribunal granted the relief as under:-
"21. In the result, for the foregoing reasons, the present OA is allowed: Impugned orders are quashed and set aside. Respondents are directed to deem the applicant as reinstated in service w.e.f. 26.06.1997 and thereafter decide the period of suspension in the light of decisions of the Apex Court referred to above and FR 54 B, within a period of two months from the date of receipt of'copy of this order. The applicant would be accorded all the consequential benefits within the aforesaid time. However, it shall not preclude the respondents from passing an order under Rule 10 (1)(b) of CCS (CCA) Rules, 1965, if so advised. No costs."
7. Even while directing that the applicant shall be deemed to have been reinstated into service w.e.f. 26.06.1997, liberty was given to the respondents to decide the matter by applying FR 54. In addition to that, it was also left open to the respondents to pass order under Rule 10 (1) (b) of the CCS (CCA) Rules, 1965. This was obviously because another criminal case was pending against the applicant, by the time, he was acquitted in the first case. The order dated 09.01.2020 passed by the respondents, reads as under:-
"ORDER The Hon'ble CAT, Principal Bench, New Delhi in O.A. No.2261/2005 dated 05.04.2006 in Sh. R.C Bhakshi vs UOI have directed the respondents to decide the period of suspension in accordance to FR 54 B. F.R. 54 -B states that (1) when a government servant who has been suspended is reinstated or would have been so reinstated on superannuation while under suspension , the authority competent order reinstate shall consider and make specific order-
a) Regarding the pay and all allowance to be paid to the government servant for the period of suspension ending with 8 OA No. 3053/2021 Item No.36/C-5 reinstated or the date of his retirement, on superannuation, as the case may be, and
b) ..
c) Whether or not the said period shall be treated as a period spent in duty.
As Per direction's of the Hon'ble CAT's Principal bench, New Delhi in O.A. No.2261/2005 dated 05.04.2006, the component authority, in exercise o( power conferred under FR 54 B(l)(b) has decided to treat the period of suspension of Sh. R.C. Bakshi, ITO from 26.06.1997 to 30.11.2005 as a period spent not on duty as charge sheet and criminal case was pending, Further, when the order of Hon'ble CAT was passed on 05.04.2006, Sh. R.C. Bakshi, ITO had already superannuated on 30. 11.2005."
8. On a bare perusal of the impugned order so passed, dated 09.01.2020, it is amply clear that the said order is based on the premise of Rule 54, however, there is no iota of mention of Rule 10(1)(b) of CCS(CCA) Rules, 1965 being applied to the facts and circumstances of the case. More importantly, it is noticed that the said Rule reads as under:-
"Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g., a person released on bail) may be placed under suspension by an order of the competent authority under clause (b) of Rule 10(1) of the Central Civil Services."
9. We observed that the wordings of the Rule 10(1)(b) of CCS (CCA) Rules, 1965 is very clear and explicit. It speaks of the person who is placed under suspension by an order of the competent authority. The said fact is not in dispute that the applicant was placed under suspension, however, the fact of the 9 OA No. 3053/2021 Item No.36/C-5 matter remains that no departmental proceedings were initiated during the pendency of preliminary trial till the applicant superannuated on 30.11.2005. The applicant was acquitted vide judgment dated 12.08.2005. Admittedly, the applicant was directed to be deemed reinstated in service w.e.f. 26.06.1997 and once the applicant is reinstated, the question of being under suspension does not arise.
10. In a recent Judgment dated 06.09.2024 passed by the Hon'ble Supreme Court in MA No. 267 of 2024 in Civil Appeal No.3082 of 2022 titled Anantdeep Singh vs. The High Court of Punjab and Haryana at Chandigarh & Anr., supplied by the learned counsel for the applicant, it has been held as under:
"20. We are only dealing with the M.A. No.267 of 2024 where the applicant has prayed that he should be reinstated into service as Civil Judge with all consequential benefits in view of the order dated 20.04.2022 passed by this Court allowing the appeal.
21. Once the termination order is set aside and judgment of the High Court dismissing the writ petition challenging the said termination order has also been set aside, the natural consequence is that the employee should be taken back in service and thereafter proceeded with as per the directions. Once the termination order is set aside then the employee is deemed to be in service. We find no justification in the inaction of the High Court and also the State in not taking back the appellant into service after the order dated 20.04.2022. No decision was taken either by the High Court or by the State of taking back the appellant into service and no decision was made regarding the back wages from the date the termination order had been passed till the date of reinstatement which should be the date of the judgment of this Court. In any case, the appellant was entitled to salary from the date of judgment dated 20.04.2022 till fresh termination order was passed on 02.04.2024. The appellant would thus be entitled to full salary for the above period to 10 OA No. 3053/2021 Item No.36/C-5 be calculated with all benefits admissible treating the appellant to be in continuous service."
11. Even though, the aforesaid decision is not squarely applicable to the facts of the present case as the said case belongs to termination from service, however, without there being any finding as to have been passed in terms of Rule 10(1)(b) of CCS(CCA) Rules, 1965 qua termination of suspension in the impugned order, it cannot be deemed that the said impugned order has been passed under provisions of Rule 10(1)(b) of CCS(CCA) Rules, 1965, under which liberty was accorded by this Tribunal in the earlier round of litigation to the respondents to pass appropriate orders. As on the date also, there is no order passed invoking Rule 10(1)(b) of CCS(CCA) Rules, 1965. Admittedly, no disciplinary proceedings were initiated during the tenure of the applicant till his superannuation. Even otherwise, considerable time has also elapsed and the applicant has already superannuated.
12. However, during the course of the hearing, it has been disclosed by the learned counsel for the applicant that some disciplinary proceedings other than the present case are still pending. In this regard, he also placed reliance on the decision rendered by the Hon'ble Gauhati High Court (High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) in W.P.(C) No. 11 OA No. 3053/2021 Item No.36/C-5 2627/2016 dated 16.05.2017 in the matter of Kochpara vs The State of Assam and Ors.
13. Keeping in view the aforesaid submission made by the learned counsel for the applicant, the matter was directed to be listed 'for being spoken to' on 06.02.2025 and an opportunity was granted to the parties to take fresh instructions on the issue and, accordingly, the matter was listed on 25.02.2025 as part-heard.
14. It is pertinent to mention herein that the issue of prolonged suspension of government employee and the practice of protracted suspension has been deprecated by Hon'ble Apex Court in a catena of decisions. The Hon'ble Apex Court in the case of Ajay Kumar Choudhary vs. Union of India through its Secretary and another, reported in (2015) 7 SCC 291, held that there is a requirement for periodic review of the order of suspension. It is also noticed that pursuant to the observation made by the Apex Court in the aforesaid judgment, the DoP&T had issued an Office Memorandum dated 21.07.2016 wherein it has been clarified that simultaneous action of prosecution and initiation of departmental proceedings is permissible in the light of various judgments of Supreme Court including the judgment in the case of Ajay Kumar Choudhary (supra). It was further clarified therein that it is necessary to issue departmental charge- sheet against an officer against whom an investigation agency is conducting investigation or against whom a charge-sheet has 12 OA No. 3053/2021 Item No.36/C-5 been filed in a Court of law. The DoP&T in its subsequent OM dated 23.08.2016, has decided that:-
"where a government servant is placed under suspension, the order of suspension should not extend beyond three months, if within this period the charge-sheet is not served to the charged officer. As such, it should be ensured that the charge-sheet is issued before expiry of 90 days from the date of suspension. As the suspension will lapse in case this time line is not adhered to, a close watch needs to be kept at all levels to ensure that charge-sheets are issued in time and it should also be ensure that Disciplinary Proceedings are initiated as far as possible in cases where an investigation agencies is seized of the matter or criminal proceedings have been launched."
However, in the present case, the respondents failed to adhere to the instructions contained in DoP&T OMs dated 23.08.2016 and 21.07.2016, issued pursuant to the ratio laid down by Apex Court in case of Ajay Kumar Chaudhary (Supra).
15. On 25.02.2025 when the matter was taken up, the learned counsel for the applicant made a categorical submission that nothing is pending against the applicant, which is also not disputed by the learned counsel for the respondents.
16. Thus, in the facts and circumstances, as no disciplinary/criminal proceedings are pending against the applicant and he has already been directed to be deemed reinstated in service w.e.f. 26.06.1997 with all consequential benefits vide this Tribunal's order dated 05.04.2006, which was upheld by the Hon'ble High Court of Delhi vide Judgment dated 13 OA No. 3053/2021 Item No.36/C-5 26.02.2015 in Writ Petition (Civil) No.15756/2006 by holding as under:
"10. In the present case, apparently no such order of continuation of suspension order was passed by any competent authority. The learned CAT while taking note of the decision of the Apex Court in Rajiv Kumar's case (supra), took a view that it is impermissible for the petitioner to continue the suspension at a stretch without passing any order under Rule 10 (5)(b). We are in a complete agreement with the reasoning given by the learned CAT in the impugned order and we are not persuaded to take any contrary view to the same.
There is no merit in the present petition and the same is hereby dismissed."
The Order passed by this Tribunal as well as the Hon'ble High Court further affirmed by the Hon'ble Apex Court vide Order dated 18.07.2018 passed in SLP No. 3830/2016.
17. We are further fortified in our view by the decision rendered in W.P.(C) No. 2627/2016 dated 16.05.2017 passed in the case of Kochpara (supra), wherein the Hon'ble Gauhati High Court has held as under:
"16. The respondent No.2 did not consider a very vital aspect of the matter, namely, that though the petitioner was arrested in connection with the police case, he was discharged by the learned Chief Judicial Magistrate, Kamrup. The petitioner was also not imposed any penalty in the disciplinary proceeding. Merely because the petitioner was arrested cannot lead to the inevitable conclusion that the suspension is justified, more so, when disciplinary proceeding was not drawn up for almost 10(ten) years after the petitioner was suspended.
17. Having regard to the aforesaid, it must be construed that continued suspension of the petitioner was wholly unjustified. There was no periodical review of the suspension of the petitioner and as noted earlier, even after this Court had 14 OA No. 3053/2021 Item No.36/C-5 directed re-instatement, it took four years for the authority to re- instate the petitioner. Attending facts and circumstances are pointer to the fact that case of the petitioner will be one under FR 54-B(3).
18. In view of the above, I am of the considered opinion that the petitioner will be entitled to full pay and allowances during the period of suspension along with all admissible benefits including leave.
19. In view of the determination made herein above, the petitioner will be paid the full pay and allowances along with all consequential benefits for the aforesaid period within a period of three months from the date of receipt of a certified copy of this order. The petitioner will be entitled to interest at the rate of 7% per annum, if the amount is not paid within the aforesaid period, till the amount is paid. The order dated 08.04.2016 will stand modified in terms of the directions and observations, as indicated above.
20. The writ petition stands allowed. No cost."
18. In view of aforesaid discussion and in the facts and circumstances, we are of the considered opinion that the applicant is entitled to be covered under FR 54-B(3) and thus entitled for full pay and allowances w.e.f. 26.06.1997 to which he would have been entitled had he not been suspended, with all consequential benefits.
19. As a result of above, the present O.A. is allowed with the following directions:-
(i) the impugned order dated 09.01.2020 is quashed and set aside,
(ii) the respondents are directed to pass appropriate orders regarding reinstatement of the applicant w.e.f. 26.06.1997 15 OA No. 3053/2021 Item No.36/C-5 treating the period from 26.06.1997 to 30.11.2005, i.e. till the date of his superannuation, as spent on duty for all purposes, and
(iii) the applicant shall be entitled for all consequential benefits, including pay and allowances minus the subsistence allowance already received by him during the period.
The aforesaid directions shall be complied with by the respondents within a period of three months from the date of receipt of a copy of this order, failing which the applicant will be entitled to interest at the applicable GPF rates. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/