Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice V.K. Bali vs Unknown on 7 January, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 391 of 2008
MA No.1703 of 2008
New Delhi this the 7th day of January,2009
Honble Mr. Justice V.K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member(A)
Ravi Shankar Srivastava
S/o late Sri S.P. Srivastava
R/o N-9 Gandhi Nagar,
Jaipur, Rajasthan ...Applicant
[By Advocate : Sri R.N. Mathur]
V E R S U S
1. Union of India,
Through Secretary,
Deptt. of Personnel, Public
Grievances and Training,
Government of India,
North Block,
New Delhi
2. State of Rajasthan,
Through Chief Secretary,
Government of Rajasthan
Secretariat, Jaipur, Rajasthan
...Respondents
[By Advocates: Sri A.K. Bhardwaj for Respondent No.1 and Smt. Urmila Lamba and RespondentNo.2]
O R D E R
Dr. Ramesh Chandra Panda, Member (A):
Sri Ravi Shankar Srivastava belonging to 1985 batch of Indian Administrative Service (IAS in short) Rajasthan cadre, the Applicant herein, has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
to quash and set aside the order of the Respondents dated 08.02.08 extending the suspension of the Applicant;
to grant him the benefit of reinstatement with effect from 12.06.2006 i.e. when the charge sheet was filed against him.
2. The brief factual matrix of the case as stated by the Applicant is captured here. When the Applicant was working as Member, Board of Revenue after getting his promotion to super time scale, the Anti Corruption Bureau (ACB in short) registered two First Information Reports (FIRs) against him on 10.06.2004 in connection with orders he delivered in 2 cases. He was taken into custody and remained in detention for more than 48 hours. The State Government issued a suspension order under Rule 3(3) of the All India Service (Discipline and Appeal Rules) 1969. The Applicant claims that the decisions he took in those two cases were purely judicial in nature which have not been set aside by the High Court. Consequent to his suspension, the Government of Rajasthan (Respondent No.2 herein), has been extending his suspension order on the ground of pendency of FIRs and as on the date of hearing he is continuing under suspension. The Applicant filed a detailed representation before the Respondent No.1 against the said suspension pleading reinstatement after one year of registration of FIR since no charge sheet was filed in the court against him. The Applicants representation was rejected. He filed an O.A.No.2286/2005 which was decided by this Tribunal on 24.01.2006 whereby this Tribunal directed the Respondents to reinstate the Applicant forthwith on the ground that no charge sheet was filed in the court within one year of registration of FIR which is violative of the DOPT circular dated 07.01.2004. The Respondents did not comply with the above direction and passed an order on 01.03.2006 extending his suspension, as a result of which he moved a contempt petition before this Tribunal which was decided on 02.05.2006 with a direction to the Respondent No.2 to reinstate the Applicant if no charge sheet was filed by 31.05.2006. The Applicant submits that Respondent NO.1 granted the sanction for prosecution of the Applicant on the last day. The Applicant thereafter moved the High Court to set aside the said order which was accepted by the High Court on 09.04.2007 setting aside the sanction granted by the Respondents on 30.05.2006 on the grounds of non application of mind. The Applicant has also filed another O.A.No.718 of 2006 in March 2006 challenging his suspension order dated 01.03.2006. The Respondent No.2 in the meantime extended his suspension after 180 days on 28.08.2006 which was violative of the provisions of law as available under All India Service (D&A) Rules, 1969. This was challenged by the applicant before the Tribunal in OA No.2075 of 2006. This Tribunal after hearing both the O.As passed an order on 25.04.2007 directing the respondents to reinstate the Applicant in service with effect from 01.03.2006 as the orders from 01.03.06 and subsequent extensions were contrary to the law. On the Appeal filed by the Respondents against the order of the Tribunal, the Honble High Court of Delhi set aside the orders of this Tribunal and remanded the matter to this Tribunal on 31.10.2007. In the meantime, the Respondents issued an order dated 16.08.2007 continuing the extension of suspension of the Applicant which was challenged by him in this Tribunal in O.A.254 of 2008. Under Rule 16, the Applicant filed an appeal dated 11.2.2008 to the Respondent No.1 against the order dated 8.2.2008 of the Respondent No.2 passed on the basis of the recommendations of Review Committee to continue his suspension for a period of 180 days. The Respondent NO.1 was directed to dispose of the said appeal by passing a speaking order as expeditiously as possible and preferably before the hearing on 29.9.2008. The Respondent No.1 in consultation with Respondent No.2 as envisaged in the Rule 18 of the Rules and in view of the facts and circumstances of the case and the status of investigation rejected the appeal in its order dated 22.9.2008. The Division Bench of Principal Bench of this Tribunal (where one of us namely Dr. Ramesh Chandra Panda, Member(A) was also a Member) heard the remanded OA 718 of 2006 and OA 2075 of 2006 and decided both cases on 22.12.2008 directing the Respondents to reconsider the Applicants claim for revocation of suspension within a period of 3 months.
3. Shri R.N. Mathur, learned counsel for the Applicant took us through background of the case and highlighted chronological development upto the date of hearing. Shri R. N. Mathur brought out the following contentions during the hearing: (i)the Applicant has been under suspension for more than 4 years (he was placed under suspension on 12.6.2004); (ii) his suspension has been continuing since then which is in violation of Rule 3(8) (c) and (d)and the procedure stipulated in the Schedule to the Rules; (iii) the Respondent No.2 has been continuing the suspension in routine, and in arbitrary manner; (iv) the Review Committee has been recommending the continuance of suspension in a stereotyped and routine way with non application of mind; (v) the charge sheet has been filed in the criminal case after two years which means the suspension of the Applicant should have been revoked if the charge sheet was not filed within one year of the suspension and filing of FIR; (vi) the Respondent No.2 has been following the policy of pick and choose and the Applicant has been discriminated in continuing the suspension whereas another member of IAS namely Shri Ashutosh Bhargav who was suspended on 30.4.2002, had been reinstated on 22.6.2006 when the criminal case against him was still pending in the court; he cited another case relating to Shri M.N.Dinesh belonging to Indian Police Service involved in a murder case, suspended on 15.5.2007 was reinstated on 29.10.2007; (vii) the suspension was based on the judicial decision taken by the Applicant as part of his judicial duties and he has the protection of Judges Protection Act 1985. In this regard he contended that as per the Judgment of Honble Supreme Court in UP Judicial Officers Association Versus Union of India (1994 (4) SCC 687), without the permission of the Chief Justice of High Court of Rajasthan, no criminal case against the Applicant could have been initiated, on the basis of this argument, the Honble High Court has stayed the cognizance of the FIR taken in the Court against the Applicant; (viii) He referred to the circular dated 3.6.2006 (Annexure-A6) issued by Government of Rajasthan. As per the circular, in cases where the stay has been obtained in pending investigation/criminal proceeding by the public servant, such public servant shall be reinstated. He submitted that since Honble High Court had stayed the cognizance of the FIR taken in the court, the Applicants case would get the benefit of the circular for reinstatement.
4. Ms. Urmila Lamba, the learned counsel representing the Respondent No.2 highlighted that FIR 109/2004 and FIR 110/2004 were registered against the Applicant on 9.6.2004 for the offences committed under Section 7, 8, 13(1) (a) (d) and 13(2) of Prevention of Corruption Act 1988 read with Section 120 B of IPC. He was arrested on 11.6.2004 and suspended on 12.6.2004. Since the Applicant was involved in corruption cases, she informed that the ACB conducted systematic investigation and having found enough evidence, filed chargesheet on 31.5.2006. She submitted that the suspension of the Applicant was reviewed by the Review Committee as per the Rules on the basis of which suspension was extended periodically by the Respondent NO.2. She, further, submitted that consequent to the conditional order dated 9.4.2007 passed by Honble High Court of Rajasthan, the Applicant moved this Tribunal through OA No.996/2007 which was dismissed on 3.3.2008 and directed the Respondent No.2 to consider the circular dated 3.6.2006 while reviewing the Applicants suspension which was meticulously done. She has also contended that since serious charges of corruption and disproportionate asset cases are also pending, Applicants suspension is being continued and goes on to add that the Applicant is a public servant discharging certain functions which may be quasi judicial in nature but the provision of Judges Protection Act 1985 are not applicable to him. She submitted a copy of Government of India order No.105/6/2004-AVD.I dated 22.9.2008 wherein the Applicants appeal dated 11.2.2008 was rejected.
5. Having heard the rival contentions of the parties and perused the pleadings, the issue involved in this OA for our determination is whether the Applicant is entitled to be reinstated by ordering the revocation of his suspension.
6. In order to consider the issues raised in support and against the Applicants suspension by the respective Counsels, we refer to the Rules position and thus, the most relevant Rules and the relevant part of the Schedule appended to the Rules are extracted below from the All India Service (Discipline and Appeal) Rules 1969:-
Rule 3(3) A member of the Service in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge if the charge is connected with his position as a member of the Service or is likely to embarrass him in the discharge of his duties or involves moral turpitude. Rule 3 (7) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.
(b) Where a member of the Service is suspended or is deemed to have been suspended whether in connection with any disciplinary proceeding or otherwise, and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded in writing, direct that the member of the Service shall continue to be under suspension subject to Sub-rule (8).
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order. Rule 3(8)(c) The composition and functions of the review Committees and the procedure to be followed by them shall be as specified in the Schedule annexed to these rules.
(d) The period of suspension under Sub-rule (1) may, on the recommendations of the concerned Review Committee, be extended for a further period not exceeding one hundred and eighty days at a time:
Provided that where no order has been passed under this Clause, the order of suspension shall stand revoked with effect from the date of expiry of the order being reviewed. Schedule to the Rules 2. Functions.(a) A Review Committee/Civil Services Board shall review the cases of officers under suspension in order to determine whether they are of sufficient grounds for continuation of suspension.
(b) In every case the review shall be done within 90 days from the date of order of the suspension. In a case where the period of suspension has been extended, the next review shall be done within a period of 180 days from the date of last extension.
3. Procedure.-(a) A Review Committee/Civil Services Board while assessing the justification for further continuance of any suspension, shall look into the progress of any inquiry/investigation against the officer by obtaining relevant information from the authorities inquiring/investigating into the charges.
(b) The Review Committee/Civil Services Board while examining a case shall consider the possibility of the officer under suspension tampering with the evidence, his influencing the process of inquiry or investigation and deprivation of his services during suspension.
(c) The Review Committee/Civil Services Board shall submit a detailed report to the competent authority, clearly stating its recommendations and the reasons for arriving at the recommendations relating to the continuance of suspension.
7. It is well established in law that suspension not being a punishment does not severe the relationship between the Government and its employees. On the other hand suspension is used as a tool against a Government servant facing investigation for a criminal offence or a trial and also departmental disciplinary proceeding who is not allowed to work on attending office with a view to preventing him to abuse his official position and ultimately jeopardizing the criminal/ departmental proceedings. Generally, the suspension is resorted to in cases where a Government servant is facing either a criminal case due to registration of FIR, investigation or a trial for the offence(s) of grave misconduct or departmental proceeding is envisaged for serious misconduct. Rules prescribe that a review must be conducted to see whether he should be reinstated on revocation of suspension or the circumstances and facts are such that the suspension should be continued. The Rule 3 of the All India Service (Discipline and Appeal) Rules, 1969, operates suspension and the guidelines prescribing procedures for review are at the Schedule appended to the Rules.
8. The established practice adopted by the executives is that suspension is continued irrespective of duration with periodic review as mandated in the Rules on grave charges like corruption charges in criminal proceeding. The Government servant is not put back to service in such cases lest he will be privy to influence in covering up his misconduct and to win over the material witnesses. It is also trite law that mere registration of FIR, which is a prima facie involvement of one in criminal offence, is not a proof to hold a Government employee guilty of the charge unless it is so decided by the court.
10. As per Rule 3, a Member of All India Service against whom an investigation or trial relating to criminal charge is pending, may at the discretion of the Government be placed under suspension and it may be continued till the termination of all the proceedings relating to the charge. The suspension may also be continued if it is connected with the official position and likely to embarrass him in the discharge of his duties or if the member of the service is involved in moral turpitude. Learned counsel contends that though Rule 3(7) of the Rules, the order of suspension shall continue to remain in force until it is modified and Rule 3 (8) (a) of the Rules makes validity of suspension order for first 90 days and at best for a total period of 180 days with a mandate to review the suspension by the competent authority on recommendation of Review Committee. Detailed procedure for the Review Committee as per Rule 3 (8) (c) has been laid down under schedule attached to the Rules. In view of the Rules position even if there is serious criminal charge against a member of service is pending, it is mandatory for the Respondents to review the suspension for which the functions of the Review Committee has been prescribed in the Schedule to the Rule to determine whether there are sufficient grounds for continuation of suspension. It is the duty of the review committee to look into the factors like (i) the progress of investigation by seeking relevant information from the authorities and on examination of the case,(ii) the consideration of tampering with evidence and (iii) the likelihood of influencing the investigation must be examined and recommendations forwarded with sufficient reasons to the competent authority. The order passed by the Respondents on 20.8.2006 in OA NO. 2075/2006, it is contended by the Applicants counsel, has not considered the above factors and merely on the basis of the nature and gravity of the charge, the suspension was continued. Likewise in OA No.718/2006, while challenging the order passed on 1.3.2006, it is stated that the only consideration is that no new facts have come to the notice of the authorities, and the nature of the charges and gravity persuaded the respondents to continue suspension for 180 days. We find from the minutes of the Review Committee meetings that to some extent routine noting of the nature and gravity of charges have influenced them to recommend continuance of suspension to the competent authority.
11. Another plea has been taken by the Applicants counsel by stating about discrimination as number of Officers, including Smt. Neera Yadav, IAS, UP Cadre, Mr. Udai Narain, Commissioner, Customs and Excise and Sh. Subhash Sharma, IAS 1970 batch, UP Cadre against whom FIRs have been lodged under Prevention of Corruption Act by the CBI, they all have been reinstated. He cited example of Shri Ashutosh Bhargava, who was placed under suspension and his suspension has been revoked and he was reinstated on 22.6.2006. There is some logic in the contention of the counsel that the Applicant has been discriminated in view of the fact that similarly circumstanced members of service have also been reinstated in service. In this regard, Articles 14 and 16 of the Constitution of India are stated to have been violated.
12. It is stated that the Review Committee has not applied its mind while undertaking the review of continued suspension and mechanically extended the same without adherence to the guidelines and the rules. We find that the Review Committee has extended the suspension of the Applicant from time to time, and recently on 22.7.2008. Such suspension has been continuing from 1.3.2006 till the latest review. The gravity of offence alleged against the Applicant has been the basis for the continuance of his suspension Ms. Lamba informed. It may be true that reasons may have been recorded in the file but in the matter of suspension, there is no provision for non-recording of reasons under Rules. In the matter of passing an order on the recommendations of the Review Committee it is the duty of both the competent authority and the Review Committee to record reasons for extension of suspension since both act as quasi judicial authority. When the requirement of recording reasons is not dispensed with, the order passed in the review must contain reasons as the Honourable Apex Court in a Constitution Bench in S.N. Mukherjee Vs. Union of India & Ors., 1990 (4) SCC 594 laid down the proposition that an administrative authority when acts has to pass a reasoned order.
13. On the other hand, we examined the respondents counsels contentions that in case of continued suspension on account of involvement in grave criminal charge of accepting bribe, suspension cannot be revoked and she relied upon the decision of the Apex Court in Union of India and Others Versus Udai Narain, {(1998) 5 SCC 535}. The pleadings reveal the nature and magnitude of the alleged offences for which the Applicant has been continuing under suspension for such a long time. The Respondents are duty bound to carry on the investigation at a speed by which the criminal cases would reach logical conclusion. But we find that the progress of investigation into the alleged offences is getting slowed due to speed breakers coming on their way. Through multiplicity of litigation by the Applicant has led to utter confusion, as on every order passed by the Respondents, the Applicant has been challeng in various proceedings.
14. We note that an appeal preferred by the Applicant under Rule 16 of the Rules has been rejected complying with the interim direction in OA No. 996/2007, the ground of discrimination has also been considered. We also find from the pleadings of Ms Lamba that in case of Sh. Ashutosh Bhargava, who has challenged the proceedings before the High Court on prayer of quashing the FIRs stay of proceedings has been granted on the basis of which the circular issued by Rajasthan Government on 3.6.2006 has come to his help and he was reinstated into service, subject to outcome of the criminal proceedings.
15. In the OA No 718 of 2006 and OA 2075 of 2006 the DB of Principal Bench of this Tribunal (where one of us namely Dr. Ramesh Chandra Panda, Member (A) was also a Member) heard both the OAs, made a detailed analysis relying on (i) the Honourable Supreme Court judgment in case of K.Sukdhendar Reddy Versus State of Andhra Pradesh and Another (ATJ 2000 (1) SC 734) and (ii) Full Bench of the Tribunal decision in J.S. Goel Versus Union of India and Others (1997-2001 ATFBJ 245), and decided on 22.12.2008 to direct the Respondents to reconsider the Applicants claim for revocation of suspension within a period of 3 months. The said order reads as follows:-
25. Resultantly, for the foregoing reasons, OAs are disposed of with a direction to the respondents to reconsider the claim of the applicant for revocation of suspension strictly in accordance with Rule 3 (8) of All India Service Rules and also the schedule appended to it. The invidious discrimination meted out to the applicant vis-`-vis Sh. Ashutosh Bhargava and others All India Service Officers shall also be considered. The aforesaid exercise would culminate into a speaking order to be passed within three months from the date of receipt of a copy of this order.
16. The case of the Applicant, we find, is that he has challenged the sanction for prosecution which is to be considered and the trial has been stayed. We also find that the Applicant comes within the ambit of the circular dated 3.6.2006 issued by the Respondent No.2. The discrimination has been attributed at the Respondent No.2 in denying the Applicant the benefit of its circular dated 3-6-2006 whereas similarly placed 2 officers have been reinstated. The principle of equality demands that the Applicant deserves equal treatment. Non-consideration of reinstatement of the applicant irrespective of the nature of the charges is a differential and discriminatory treatment meted out to the Applicant.
17. We also note that the FIR No.109 of 2004 against the Applicant and 8 others; and FIR No.110 of 2004 have been registered against the Applicant under various sections of PC Act 1988 and 120B of IPC. Further, FIR No.264 of 2004 was registered against him in the disproportionate asset case. These 3 cases are at different stages and will take sufficient period to reach logical conclusions. Subsequent to the suspension of the Applicant, 9 times his suspension has been extended and the last order being on 5.8.2008. 180 days period will expire on 31.1.2009.
18. One of the prayers of the Applicant is to revoke the suspension with effect from 12.6.2006 when the charges were framed against him. We find from the minutes of the proceedings of the meeting of the Review Committee held on 28.8.2006 (The previous meeting being held on 21.2.2006 prior to 12.6.2006), that Sanction for Prosecution has been granted on 7.11.2005 by the competent authority in case no.110/2004 against Shri Srivastava and in another case 109/2004 which is pending before Central Government in which sanction for prosecution has been granted by the State Government under Section 197 of Cr.P.C. 1973. It is noted that this Tribunal while considering the Contempt Proceedings passed order dated 2.5.2006 directing that the Respondents must take effective steps for prosecution of the petitioner, if necessary, by 31.5.2006, failing which the Respondents shall reinstate the petitioner by amending/withdrawing the suspension order dated 1.3.2006. The Respondent-2 in their averments reported that a Chargesheet No.221/2006 in relation to FIR No.110 was filed on 31.5.2006 in the Court of Special Judge (Prevention of Corruption Cases) Jaipur. We find that the extension of suspension period by another 180 days is perfectly legal and thus justified.
19. Another prayer of the Applicant relates to set aside the order of the State Government dated 8.2.2008 for further period of 180 days. We note that the State Government has also considered the recommendation of the Review Committee and passed order dated 5.8.2008 (Page 209) for further continuance of the Applicants suspension for a period of 180 days. We find that the order dated 8.2.2008 is based on the minutes of the Review Committee held on 1.2.2008 (Pages 119-120). The committee took note of the prosecution sanctioned by the State Government in the Applicants disproportionate asset case No.264/2006 under 197 Cr.PC. The order dated 5.8.2008 has considered the Review Committees recommendation and the committee met on 22.7.2008 to consider the directions of this Tribunal dated 3.3.2008 in OA No.996/2007. We are however sure that the Respondents would consider their own circular dated 3.6.2006 while reviewing his case. The committee took note of the decision of Honble High Court of Rajasthan dated 9.4.2007 in Revision Petition No.66/2007 staying the decision of the Special Judge passed in the FIR No.110/2004 dated 7.9.2006. The Anti Corruption Bureau of Rajasthan has filed an SLP before Honble Supreme Court in SLP(Cr) No.6876/2007 which has been admitted. The Committee having taken note of the above developments, considered the facts of the cases (No.109/2004 and 264/2004) and the circular of the State Government dated 3.6.2006 and reviewed the suspension of the Applicant. The committee recorded The criminal cases of serious nature are pending against Sri Srivastava at present. Under the circumstances the provisions of this above mentioned circular are not effective in the matter and the continuation of suspension as per the provision of circular dated 10.8.2001 is appropriate and recommended the extension of Applicants suspension for a further period of 180 days. Having gone through the details, we find that the Review Committee has applied its mind by considering the developments which took place between the previous meeting and the meetings held on 1.2.2008 and 22.7.2008. We do not find any procedural or legal infirmity in the Government of Rajasthan (Respondent-2) order extending the period of suspension.
20. In the MA No.1703 of 2008, the Applicant has prayed to set aside the order dated 22.9.2008 of the Respondent-1. A copy of the order was furnished to us during the hearing. We find that the Respondent-1 has considered the Applicants appeal/representation dated 11.2.2008, consulted the Respondent-2 under Rule 18 of the All India Service (D&A) Rules and analysed each of the grounds raised by the Applicant and came to the conclusion that there were no grounds justifying interference in the decision of the State Government and the Applicants appeal was rejected. We find the said order passed by Respondent-1 is well reasoned and speaking order. There is no infirmity in the said order and accordingly, we find the order legally just and correct and no interference from this Tribunal is necessary.
21. Taking totality of facts and circumstances into account, we come to the considered conclusion that the Applicant is facing serious charges of corruption, and 3 criminal cases have been registered against him, the suspension being sequel to that, is well justified. He is not entitled to the benefit of reinstatement with effect from 12.06.2006 i.e. when the charge sheet was filed against him nor the extension of suspension with effect from 8-2-2008 and even the latest extension from 5-8-2008 can be quashed. Further, the discrimination angle in view of the circular dated 3-6-2006 of the Respondent 2 was considered by the Review Committee in its meeting held on 22.7.2008 and recorded that the circular was not effective in case of the Applicant. Therefore, in our considered view, the Applicant has not made out a case in his support.
22. Resultantly, the Original Application and the MA being devoid of merits are dismissed. No costs.
(Dr. Ramesh Chandra Panda) (V.K. Bali) Member (A) Chairman /jk/