Central Administrative Tribunal - Delhi
Shri Mahesh Kumar vs Government Of Nct Of Delhi on 3 November, 2011
Central Administrative Tribunal Principal Bench OA No.900/2011 New Delhi, this the 3rd day of November, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Mahesh Kumar, Entry Grade Officer of DANICS, R/o BE-192, Janakpuri, New Delhi-86. .... Applicant. (By Advocate : Shri Yogesh Sharma) Versus 1. Government of NCT of Delhi, Through Chief Secretary, New Secretariat, New Delhi. 2. The Chief Secretary, New Secretariat, New Delhi. 3. Joint Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi-110001. Respondents. (By Advocate : Shri R.N. Singh) : O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Shri Mahesh Kumar, belonging to the Entry Grade of DANICS, the applicant herein, while posted as Assistant Labour Commissioner (ALC), New Delhi Office, was placed under deemed suspension with effect from 06.10.2008. He is visiting this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, assailing the continuance of his suspension and has sought direction to the respondents to revoke his suspension and to reinstate him with immediate effect with all consequential benefits. He has prayed for the following relief(s) :-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated suspension order dated 24.10.2008 and order dated 22.12.2009, declaring to the effect that the extended the continuation of the suspension of the applicant vide order dt. 22.12.2009, 26.3.2010, 23.12.2010 and dt.28.1.2011, are is illegal, arbitrary, against the rules and consequently pass an order directing the respondents to revoke the suspension of the applicant without prejudice any investigation or enquiry.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant with costs of litigation.
2. Brief facts of the case would manifest that while the applicant was functioning as ALC, New Delhi on 06.10.2008, FIR No.33/08 was lodged under Section 7, 13(1)(a) & (d) of the Prevention of Corruption Act read with Section 384, 120 B and 34 of IPC on the basis of the complaint given by Shri Shiv Kumar Tiwari, a small shop keeper selling eatables and flowers etc. in Connaught Place area who complained that various officers of NDMC, Labour, and Police had been collecting bribes on a monthly basis from him and he was being harassed if such bribe was not paid. A sting operation was organized and evidence were captured in video and Audio recordings against the officials while demanding and/accepting illegal gratification, which disclosed that the applicant in connivance with his subordinates was collecting the bribe/monthly protection money by misusing their powers of enforcing labour laws. The applicant was arrested on 06.10.2008 and was released on bail on 25.10.2008 by the Trial Court. He was placed under deemed suspension w.e.f. 06.10.2008 vide order dated 24.10.2008 (page 11). He was sanctioned subsistence allowance which was increased as per the rules. The suspension of the applicant has been periodically reviewed and extended vide orders dated 24.12.2008. The Review Committee met on 30.06.2009, 22.12.2009, 26.3.2010, 25.6.2010 and 21.09.2010 and recommended the periodic extension of applicants suspension. Lastly, Review Committee met on 22.12.2010 and recommended continuance of his suspension for further period of 180 days w.e.f. 24.12.2010. The applicant being aggrieved by the continuance of his suspension approached this Tribunal in OA No.445/2010 which was disposed of on 07.10.2010 with the direction that if the applicant prefers a fresh representation taking additional grounds against the suspension continuance order dated 26.3.2010, the same would be considered by the respondents in the light of the fact that others involved in the same criminal case have been reinstated into service. It is the case of the applicant that he submitted his representation dated 25.10.2010 which was considered by the Review Committee in its meeting held on 22.12.2010. But the Review Committee recommended to extend the suspension for further period of 180 days w.e.f. 24.12.2010. On receipt of the said order on 28.1.2011, feeling aggrieved, the applicant is visiting the Tribunal for the second time. During the pendency of this OA, we were informed that the Review Committee meeting was held on 17.6.2011 and recommended for further extension of suspension for 180 days.
3. Shri Yogesh Sharma, learned counsel for the applicant would contend that third respondent being the Competent Authority, failed to consider the fact that in the same FIR No.33/08, nine officers of NDMC placed under suspension had been reinstated into the services after revocation of their suspension in many cases just after one year but in case of the applicant about 3 years had been spent by him under suspension. Further, his submission is that the applicant has not been served charge sheet in the disciplinary proceeding, nor the Trial Court has framed charges against him in criminal case. It is his case that the applicant has been called for investigation only once i.e. on 13.4.2009. Shri Yogesh Sharma contends that the applicant in his representation dated 25.11.2009 has mentioned about the Government of India OM dated 07.01.2004 which has not been properly and correctly considered by the Competent Authority. He contends that the Review Committee without appreciating the spirit behind the review, in a routine manner concluded that revocation of suspension is likely to prejudice the investigation. Shri Sharmas contention is that every time review Committee met, they had predetermined mind to continue his suspension which could be seen from the stereotyped minutes. The applicants counsel placed his reliance in support of his contentions on the orders of this Tribunal in the case of Jitender Versus Commissioner of Police [OA No.2394/2008 decided on 03.06.2009); and the orders of Ernakulam Bench of this Tribunal in the matter of S. Subashchandran Versus Superintendent Railway Mail Service (RMS) and Others [OA No.535/2009 decided on 19.11.2009]. He, therefore, urges to allow the OA with directions to the respondents to revoke the suspension and to reinstate the applicant into service.
4. The respondents, having received the notice from the Tribunal have entered appearance through Shri R.N. Singh, Senior Central Government counsel and have filed the reply affidavit on 09.08.2011. It is contended that as per the information received from the Directorate of Vigilance dated 29.11.2010 the applicant was required to give his voice sample for comparison with voice recorded in the sting operation. The applicant refused to give the voice sample in FSL, Delhi and as such the respondents found him not cooperating with the investigation. The Suspension Review Committee considered all the facts and recommended for the extension of suspension for further period of 180 days w.e.f. 24.12.2010. The Committee also considered applicants representation dated 25.10.2010 and the directions of the Tribunal dated 07.10.2010 in OA No.445/2010. Shri Singh, citing the provisions of Rule 10 of the CCS (CCA) Rules, 1965, submitted that there were sufficient reasons for continuance of suspension and by extending his suspension the respondents had acted within the four corners of law. It is, therefore, stressed that the applicant is involved in the serious case of corruption and continuance of the suspension is necessary. Hence, the OA should be dismissed.
5. Having heard the contentions of the rival parties, we have carefully gone through the pleadings. The only issue that comes before us is whether continuance of applicants suspension is legally tenable in view of the extant guidelines of the Government of India in the OM dated 07.01.2004 and whether he has been discriminated as many of his colleagues involved in the sting operation, though initially placed under deemed suspension have been reinstated into service?
6. The applicant is involved in the alleged misconduct of corruption for which charge memo has not yet been issued to him in the departmental proceedings. Even in the criminal case, police is yet to file the challan before the Trial Court. Thus, both departmental and criminal proceedings are in the nascent stage. Investigation is going on, where the applicant, it is contended by the respondents, is not cooperating, as he is refusing to provide his voice sample in the NFL. We can understand why the investigation is prolonging. The applicants voice sample may be relevant to the departmental and criminal proceedings. But, the applicant in his rejoinder has refuted the allegation of non-cooperation with the investigating agency. On the other hand, he has stated that over about three years he has been called only once and he has attended the investigation and furnished the information sought for. It is stated by him that he has not refused to give voice sample. It is apt to note that the authorities concerned are taking the serious matter of alleged corrupt practices in very casual and routine manner. On the one side, the criminal and disciplinary proceedings are almost standing still, on the other, he is already getting his subsistence allowance as 75% of his pay. If applicant is really involved in the alleged misconduct and needs to be punished, there should be no delay.
7. At this stage, we may refer to the DOP&T Office Memorandum No.11012/4/2003-Estt.(A) dated 07.01.2004 which provides the guidelines to the concerned authorities on the matters of suspension of Government servant, review thereof and continuance of the suspension. The said OM inter alia provides Review Committee for the purpose of reviewing the suspension cases and guides as to how the Review Committee should conduct the review. OM dated 07.01.2004 inter alia provides on the issue of how the Review Committee should consider the request for revocation coming from the charged officer from one side and continuation of the suspension raised by the authorities of the Government and the guidelines given therein reads as follows :-
3. The Review Committee(s) may take a view regarding revocation/ continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a court of law or no charge memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned. In view of the above guidelines, it must be noted (a) that more than one year has passed since the applicant has been suspended and (b) that no charge in both criminal and departmental cases has been framed till the date of final hearing. Thus, the above two important conditions exist in the case of the applicant.
8. It is noted that the applicant has visited this Tribunal once before in the past where his request for revocation of suspension has been raised on the grounds that he has been discriminated whereas some of the officers who were similarly placed and involved in the same FIR No.33/08 or even as claimed by the applicants counsel some of them are much worse than the applicant, but their suspensions have been revoked within the shortest period, whereas the applicant has been under suspension for about three years. The above contention was also raised before this Tribunal in OA No.445/2010. While disposing of the OA on 07.10.2010, this Tribunal has inter alia indicated that in case the applicant submits representation, the same shall be considered in the light of the fact that others involved in the same criminal case have been reinstated. The applicant submitted his representation on 25.10.2010. Subsequent to the Tribunals order in the said OA, and the applicants representation, the Review Committee which met on 22.12.2010, recommended the continuance of the suspension and the order was passed on 23.12.2010. The said order does not reflect the consideration of the applicants representation, nor even the direction of this Tribunal in the OA No.445/2010 has been examined, less to speak of the ground of discrimination advanced by the applicant. The Competent Authority has not compared his case with those mentioned by him.
9 On our directions, the applicant has filed the additional affidavit which has revealed that in the FIR No.33/08, out of 17 persons 15 are Government officials and remaining two are private persons. Out of 15 officials, two officials have retired, and 10 officials suspension has been revoked. It is noted that along with the applicant three officials from the Labour Department were involved in the said criminal case. Shri Shiv Dayal, Labour Inspector has retired and in case of Shri Sidh Gopal, Labour Inspector, his suspension has been revoked and he has been reinstated in service. It is noted that out of three Labour Department officials, only the applicant continues under suspension.
10. It does, therefore, emerge that the case of the applicant being similar to those cases where the revocation was ordered by the concerned authorities and non-consideration of the same has certainly prejudiced him. Be that as it may, in the matters of suspension or revocation thereof, the facts of each case needs to be considered by the Review Committee and Competent Authority and of course when the ground of discrimination is advanced by the applicant, same should be considered in a proper manner before recommending and sanctioning further extension of suspension.
11. The learned counsel representing the applicant, during the course of arguments urged that the allegations against the applicant are grave and serious. His innocence or otherwise can be established only in criminal and departmental proceedings which are time consuming. We notice that period of three years has already gone by since the applicant was placed under suspension w.e.f. 06.10.2008 and in the very nature of things, as mentioned by the respondents themselves in the impugned order, the charges are yet to be framed in both the criminal and departmental proceedings. These proceedings if get started even in the next few months, will not come to an end in near future and the entire process may take about five to seven years further and that suspension of the applicant for such long period would be wholly unjustified. Every citizen has a right for speedy trial, be it in criminal case or departmental enquiry. If the Government is unable to ensure this basic right, the citizen cannot be made to suffer for an indefinite and prolonged period. We wonder why no charge has been framed against him even in the departmental proceeding and why the investigation has not come to a stage of filing its report under Cr.P.C. before the Trial Court though three years have rolled by. It is noticed that even though specifically ordered, the respondents have not considered the applicants representation dated 25.10.2010 and have not considered the discrimination aspect raised by him. Besides, we would direct the Competent Authority to constitute a special Review Committee to consider the applicability of Office Memorandum dated 07.01.2004 and consider applicants representation dated 25.10.2010 properly. The special Review Committee is directed to examine the issue of discrimination raised by the applicant.
12. Having considered the totality of facts and circumstances of the case, we are aware that the complicated cases like the present one where serious allegations of corruption are involved, normally it will take considerable time to frame charges in disciplinary and criminal proceedings and ultimately to reach to the logical conclusion. On the other hand, the applicant is drawing his subsistence allowance and period of suspension is getting unusually prolonged. It is the respondents who are in a better position to take a balanced view in the matter. In view of the above position, we direct the appropriate Competent Authority to constitute the Special Review Committee to take holistic and comprehensive view of the applicants case including our observations within, take into account para 3 of the OM dated 07.01.2004 and decide whether the continuance of the applicants suspension would be necessary or not. Let the Competent Authority decide the matter on the basis of the considered and informed views of the Special Review Committee as expeditiously as possible but preferably within a period of four weeks from the date of receipt of a copy of this order.
13. In terms of our above directions and observations, the Original Application is disposed of. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /rk/