Central Administrative Tribunal - Ahmedabad
Sandeep Jot Singh vs Central Board Of Indirect Taxes & ... on 21 January, 2022
(CAT/AHMEDABAD BENCH/OA/503/2020 ) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMADABAD BENCH
Original Application No. 503/2020
Dated this the 21st January day of 2022
Reserved on : 30.07.2021
Pronounced on : 21.01.2022
CORAM:
Hon'ble Shri Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. A.K. Dubey, Member (A)
1. Sandeep Jot Singh,
Aged 41 years,S/o. Sardar Narkewal Singh,
Deputy Commissioner (Under Suspension),
C/o: Principal Commissioner of Central Goods and Service Tax
(Ahmedabad South),
Department of Revenue, Ministry of finance,
Central Excise Bhawan, Abbawadi, Ahmedabad - 380 015.
Resident of: 1001-C, Gala Aria,
South bopal, Ahmedabad - 380 058. ...Applicant
(By Advocate Mr. Prateek T Mohanty)
Vs
1. Union of India through
The Secretary, Department of Revenue,
Ministry of Finance, North Block,
New Delhi - 110 001.
2. The Chairperson,
Central Board of Indirect Taxes and Customs,
Department of Revenue, Ministry of Finance,
North Block, New Delhi - 110 001.
...Respondents
(By Advocate Ms. R. R. Patel)
ORDER
Per Shri Jayesh V. Bhairavia, Member (J)
1. The Applicant has sought the following reliefs:
"8.1 to allow the present Application.
8.2 to quash and set aside impugned extension Order dated 21.12.2017 (Annexure : A-1), the impugned extension Order dated 18.06.2018 (Annexure : A-(CAT/AHMEDABAD BENCH/OA/503/2020 ) 2
2), the impugned extension Order dated 18.06.2018 (Annexure : A-2) , the impugned extension Order dated 21.12.2017 (copy not available), the impugned extension Order dated 17.06.2019 (Annexure : A-3), the impugned extension Order dated 10.12.2019 (Annexure : A-
4), the impugned extension Order dated 11.06.2020 (Annexure : A-5) and the impugned extension Order dated 08.12.2020 (Annexure : A-
6):
8.3 to consequently direct that the entire period of suspension of the Applicant beyond the initial ninety days (that is with effect from 25.01.2018) should be treated as duty for all purposes;
8.4 to consequently direct the Respondents to pay the Salary and other Allowances for the entire period of suspension of the Applicant beyond the initial ninety days (that is from 25.01.2018 onwards) to the Applicant within a prescribed period;
8.5 to grant Compound Interest @ 18% per annum, compounded monthly, for the above amount to be paid, from the date it is due to the date it is actually paid;
8.6 to allow exemplary costs of the application; and 8.7 to issue any such and further order/directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."
2. The brief facts of the case of the Applicant are as under :-
2.1 The Applicant while working as Deputy Commissioner of Customs, Mundra, Gujarat, a case, i.e., RC No.0292017 A0010 dated 18/09/2017 was registered against him by the CBI, ACB, Gandhinagar under Section 120-B of IPC r/w Section 7 & 11 of Prevention of Corruption Act, 1988.
2.2. Considering the pending investigation relates to CBI case and the Applicant reportedly absconding, the competent authority i.e. the President in the present case by exercising power under Sub rule (1) of Rule 10 of the CCS (CCA) Rules 1965 vide impugned order dated 29th September, 2017 placed the Applicant under suspension with immediate effect (Ann. A/7).(CAT/AHMEDABAD BENCH/OA/503/2020 ) 3
Thereafter, the Applicant was arrested on 27/09/2017 and was remanded to police custody till 03/10/2017. Therefore, the Respondent No.1 placed the Applicant under deemed suspension from the date of his arrest/detention by the CBI, i.e., 27/09/2017 in terms of Rule 10(2)(a) of CCS (CCA) Rules, 1965 vide impugned order dated 27/10/2017 (Ann. A/8) 2.3 The Applicant was released on bail on 08/12/2017. The suspension of the Applicant had been extended time to time by the Respondent vide orders dated 21/12/2017, 18/06/2018, 17/06/2019, 10/12/2019, 11/06/2020 and order dated 18/12/2020 (Ann. A/1 to A/6) the said orders are also impugned in the present OA.
2.4 It is stated that Applicant was issued a major penalty charge sheet under Rule 14 of CCS (CCA) Rules, 1965 dated 26/02/2019 (Ann. A/9). Since, the charge sheet was issued beyond the time limit of 90 days, of his initial suspension; he had submitted representation dated 07/05/2019 (Ann. A/10) followed by another representation and requested the Disciplinary Authority (for the sake of convenience be read as "DA" for short) to revoke his suspension order. However, the said representation of the Applicant was rejected by the Respondent vide letter dated 01/01/2020 (Ann. A/11).
2.5 Being aggrieved by the continuation of suspension after 90 days from the initial suspension order dated 29/09/2017 the Applicant has filed the present OA.
3 Mr. Mohanty learned counsel for the Applicant mainly submits that no charge sheet has been issued within the mandated period of three months from the date of suspension order and therefore, the impugned order is bad in law. In support said submission Ld. Counsel Mr. Mohanty relied upon the judgment passed by the Hon'ble Supreme Court of India in the case of Ajay Kumar Chaudhary Vs. Union of India reported in (2015) 7 SCC 291 (Ann. A/12).
3.1 It is stated that the DoP&T had issued another OM dated 21/07/2016 (Ann. A/14) and referred to the directions issued by Apex Court in (CAT/AHMEDABAD BENCH/OA/503/2020 ) 4 case of Ajay Kumar Choudhary v/s Union of India that the currency of a suspension order should not extend beyond three months, if within this period a memorandum of charges/charge-sheet is not served on the delinquent official/employee. Further, instructions were issued that departmental action & criminal prosecution should be simultaneous and clarified that issue of charge sheet against an officer against whom investigation agency is conducting investigation or against whom a charge-sheet has been filed in a Court etc and emphasised to take expeditious disciplinary action against the delinquent officer.
3.2 Further, it is submitted that the Department of Personnel and Training Office had issued OM dated 23/08/2016 (Ann. A/13) wherein, in compliance of the judgment passed by Hon'ble Apex Court in Ajay Kumar Chaudhary's Case (Supra), it has been 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 Charge Officer. As such, it should be ensure 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 adhere 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."
Learned counsel therefore submits that in the present case, the respondent failed to issue the charge sheet within the 90 days from the initial date of Applicant's suspension i.e. 27/09/2017. The charge memorandum has been served upon the applicant only on 26.02.2019 i.e. much beyond the time line stipulated by DoP&T. Therefore, the suspension of the applicant lapsed in terms of the OM dated 23.08.2016. However, the respondents continued to extend the period of suspension of the applicant vide impugned orders contrary to the instructions of DoP&T and therefore, the said orders are bad in law.
(CAT/AHMEDABAD BENCH/OA/503/2020 ) 53.3 Learned Counsel placed reliance on the orders passed by Principal Bench of this Tribunal in (i) OA No.4159/2017 dated 21/12/2017 in the case of Shri Manoj Kumar Vs. UOI, and (ii) OA No.915/2018 dated 02/04/2018 in case of Navnit Kumar Vs. Department of Revenue, in the said orders, the Principal Bench by following the law laid down in Ajay Kumar Chaudhary Vs. UOI held that it is well settled law that continued suspension beyond 90 days is impermissible unless the charge sheet in disciplinary proceedings is served within time limit. Since no charge sheet has been issued, the said OAs were allowed accordingly (Ann. A/15 & 16 referred).
It is submitted that in the present case the respondents failed to issue charge memorandum to the applicant before expiry of his initial suspension and in absence of it, continued to extend period of the suspension, is not permissible as held by Hon'ble Apex Court as also the Principal Bench of this Tribunal.
3.4 It is submitted that the Principal Bench of this Tribunal in another case i.e. OA No.1224/2018 decided on 31/05/2018 (Ann. A/17), by following the dictum laid down in case of Ajay Kumar Chaudhary (Supra) held that even when the charge sheet has been issued after 90 days of the suspension period i.e. beyond 90 days of initial suspension, the said action of extension of suspension held to be illegal and impunged order of further extension of suspension was set aside.
Learned counsel further submitted that the said order was implemented by Union of India and revoked the suspension of the Applicant therein vide order dated 26/02/2021 (Ann. A/18). Therefore, the learned counsel submits taht once the Respondent has accepted the order passed by this Tribunal in OA No.1224/2018, the respondent cannot go back to challenge it and cannot take a different view in identical and similar mater such as applicant herein. In support of said submission he placed reliance on the judgment passed (CAT/AHMEDABAD BENCH/OA/503/2020 ) 6 by Apex Court in Shreedharan Kallat Vs. UOI, (1995) 4 SCC 207, wherein it has been held that :-
"In service matters where validity or interpretation of Rule is concerned, any order passed by the Courts which achieves finality is binding to the Department. If the Court is satisfied then any employee has been prejudiced or his right under Article 14 has been violated it may interfere in his favour. But the Department is precluded from challenging the interpretation given by the Court. Since the earlier order is upheld by this Court the order could be set aside by this Court."
3.5 It is submitted that in similar circumstances, the suspension of applicant's batch mates i.e. namely Shri Sandeep G M Yadav working as Deputy Commissioner CGST Bhubaneshwar & Shri Ashiuzzaman, Deputy Commissioner CGST, Rourkela has been quashed by the Cuttack Bench of this Tribunal vide common order dated 31/01/2020 passed in OA No.617/2019 along with OA No. 693/2019 (Ann.A/21 referred). The said order of the Tribunal was challenged by the respondents before the Hon'ble High Court of Orissa at Cuttack in W. P. (C) No.12859/2020 along with W. P. (C) No.12861/2020. The Hon'ble High Court rejected the submission of petitioner (i.e. original respondent) that the extension of suspension can be made without serving the departmental charge sheet. The Hon'ble High Court in principle agreed with finding of the Tribunal for quashing and setting aside the suspension order by partial modification of the said order, the extended period of suspension w.e.f. 24.07.2019 was set aside by the Hon'ble High Court vide judgment dated 31/07/2020 (Ann. A/22).
Further, Learned Counsel also relied upon order passed by the Ernakulam Bench of this Tribunal in case of Dr. Jacob Thomas, IPS Vs. The State of Kerala & other (OA No.4/2019 decided on 29/07/2019) and submits that after referring the law laid down by the Apex Court in Ajay Kumar's Case (supra), as well in case of State of Tamilnadu Vs. Promod Kumar, IPS, the Tribunal held that it is trite law that suspension cannot take the form of punishment. Therefore, it is submitted that in absence of initiation of any departmental (CAT/AHMEDABAD BENCH/OA/503/2020 ) 7 proceedings against the applicant within 90 days from his initial date of suspension, the impugned decision stands void ab initio.
3.6 Further it is submitted that the headquarter of the applicant has been changed from Mundra to Ahmedabad and approximately after one year and four months from the date of his initial suspension, the respondents had served the charge memorandum dated 26.02.2019. Therefore, the continuation of suspension is bad in law and contrary to the law laid down by Apex Court in the case of Ajay Kumar Choudhary (supra), as also orders passed by various Benches of this Tribunal in identical cases. Therefore, learned counsel for the applicant submitted that the prayer sought in this OA be allowed.
4. Per contra, respondents have filed reply and denied the contentions of the Applicant. Learned Counsel Ms. R. R. Patel for the respondents mainly submitted as under:-
4.1 It is argued that the Applicant was placed under suspension consequent upon his detention by the CBI and remained in custody for more than 48 hours. Therefore, in terms of Rule 10(2)(a) of CCS(CCA) Rules 1965, vide order dated 27.10.2017 the applicant was placed under deemed w.e.f. the date of his arrest i.e. 29/09/2017, 4.2 Further it is contended that Competent Authority can suspend a Government Officer when criminal proceedings are pending as per Rule 10(1)(b) of CCS(CCA) Rules, 1965. The instant case is squarely covered by the said Rule. Since the CBI, ACB, Gandhinagar had registered RC No. 029 2017 A0010 dated 18/09/2017 against the Applicant and the same is pending at the stage of "Framing of Charge" and the competent authority i.e. President in the present case had already granted Prosecution Sanction under Section 19(1)(a) of Prevention of Corruption (Amendment) Act, 2018.
4.3 Learned Counsel further submits that disciplinary proceeding was also initiated against the applicant and as per the provision of Rule 14 of CCS (CCA) Rules 1965, the Competent Disciplinary Authority issued (CAT/AHMEDABAD BENCH/OA/503/2020 ) 8 the Charge Memorandum No.04/2019 dated 26/02/2019 to the Applicant for major penalty (Ann. A/9 referred). It is stated that Departmental Inquiry started against the Applicant and the Report of the IO is awaited.
4.4 It is submitted that after due application of mind and due consideration of relevant facts on the record, the extension of suspension of Applicant has been issued vide impugned orders with the approval of Competent Authority under relevant provisions of Rule 10 of CCS (CCA) Rules, 1965. Further, it is submitted that continuation of suspension of the Applicant vide impugned orders are just and legal.
4.5 Learned Counsel submits that the case law cited by the Applicant are not relevant to the facts and circumstances of the present case.
Further, in this regard, it is submitted that in the case of Ajay Kumar Choudhary Vs. UOI, the Hon'ble Supreme Court in para - 14 of the said judgment it has been observed that "....if the memorandum of charges / charge-sheet is served a reasoned order must be passed for the extension of the suspension."
It is stated that in the present case, undisputedly the applicant was placed under deemed suspension w.e.f. 29.09.2017, CBI had filed their charge-sheet in Special Court on 25/11/2017, the applicant was granted bail by the Criminal Court on 08.12.2017. The suspension of the applicant was extended vide order dated 21.12.2017, the competent authority issued sanction for prosecution vide order dated 26.03.2018. Thereafter, the suspension review committee extended the suspension period from time to time. The applicant was served with charge memorandum under Rule 9, Rule 14 for major penalty on 26.02.2019 and the disciplinary proceedings was started against and same is pending against the Applicant. Considering the said facts, the review committee recommended the extension of suspension and same has been accepted by the Disciplinary Authority. Accordingly, the impugned order for extension of suspension of the applicant for a (CAT/AHMEDABAD BENCH/OA/503/2020 ) 9 period of 180 days issued on 08.12.2020 (Annexure A./6 referred)./ Thereafter, again the suspension of the applicant has been extended and same is continuing till date. Therefore, the applicant cannot claim any relief by relying upon the judgment rendered in case of Ajay Kumar (Supra) as the facts of the present case are different.
4.6 It is submitted that the offence of bribery as alleged against the applicant in this case, the conduct of the applicant is prejudicial to the interest of the Government and keeping the Officer under suspension would demonstrate the policy of the Government to deal firmly with the corruption cases. The suspension of the Applicant cannot be revoked as the allegations against him are serious in nature.
4.7 Learned Counsel for the respondent placed reliance on the judgment passed by Hon'ble Delhi High Court in case of Govt. of NCT of Delhi Vs. Dr. Rishi Anand (Ann. R/1) and submits that the after referring the judgment passed in Ajay Kumar Choudhary's Case (Supra) Hon'ble Delhi High Court held that "it emerge that the Government is obliged to record its reasons for extension of the suspension, if assailed, would be open to judicial scrutiny not as in an appeal, but on ground available in law for judicial review in administrative action. Further, it is held that the only circumstances in which the suspension of the government servant lapses automatically is the one contained in Sub-rule (7) of Rule 10 and not automatically lapse since the charge-sheet was not issued within initial period of 90 days." Therefore, Ld. Counsel submits that the judgment relied upon by the applicant will not be of any help in light of judgment passed in the Rishi Anand Case (supra).
4.8 Learned Counsel for the respondent further submits that the order / judgment relied upon by the applicant passed by Cuttack Bench of this Tribunal in the case of one Shri Sandeep Yadav, and the order passed by Ernakulam Bench dated 29/07/2019 (Ann. A/21 and A/23) are different to the facts and circumstances of the present case. In the cited orders the Charge Memorandum was not issued even at the time (CAT/AHMEDABAD BENCH/OA/503/2020 ) 10 of decisions rendered and said orders are under litigation. A Review Petition has been filed by the Department in Hon'ble High Court.
In sum, Learned Counsel for the Respondent submits that sufficient reasons are recorded by the Competent Authority/Review Committee for extension of suspension period of the applicant. Accordingly, in light of provisions of Rule 10(7) of the CCS (CCA) Rules, 1965 the said decision for extension of suspension is just and legal. The applicant is not entitled for any relief as sought in this OA.
5. The applicant has filed its rejoinder and reiterates their contention stated in the OA. Additionally, it is contended as under:-
5.1 It is submitted that the judgment passed in Dr. Rishi Anand's Case (supra) by the Delhi High Court which is relied upon by the Respondent was considered by the Principal Bench of this Tribunal in order dated 02/04/2018 passed in OA No.1224/2018 (Ann.A/17 referred), and in light of Apex Court judgment in Ajay Kumar Choudhary (supra), the impunged order for extension of suspension was set aside by the Tribunal. In compliance of the said order of the Tribunal, the Union of India vide order dated 26/06/2018 (Ann.A/18 referred) revoked the suspension order by exercising power under provision of clause (c) of sub rule 5 of Rule 10 of CCS Rules 1965.
Therefore, learned counsel for the applicant submits that in view of the judgment of the Hon'ble Supreme Court in Shreedharan Kallat Vs. UOI, reported in (1995) 4 SCC 207 (Ann. A/19 referred), the respondents i.e. the UOI ought to have treated the applicant equally and ought not to have raised the issue about the applicability of law laid down by Hon'ble Apex Court in case of Ajay Choudhary (supra) as well as the order passed by Principal Bench in case of passed in OA 1224/2018 to the facts of the present case.
5.2 Further, it is submitted that Hon'ble Delhi High Court in case of Kulamani Biswal Vs. UOI decided on 31/10/2018 (Ann. A/24 referred) by referring the judgment passed in Ajay Kumar Choudhary (supra), Promod Kumar (supra) as also the Dr. Rishi Anand's Case, (CAT/AHMEDABAD BENCH/OA/503/2020 ) 11 the Hon'ble High Court held that in any event the suspension cannot continue indefinitely.
5.3 Further, it is stated that it is well settled position of law that while an Executive Instructions cannot override the statutory rule, but if the rules are silent on any issue Executive Instructions can be issued to supplement the statutory rules. In other words, while Executive Instructions cannot supplant statutory rules, they can very well supplement the statutory rules. In this regard, Ld. Counsel placed reliance on the judgment passed in case Sant Ram Sharma Vs. State of Rajasthan, AIR 1967 SC 1910 (at para - 7), wherein it was held that ".... if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." Therefore, the respondents are under statutory obligation to follow the instructions contained in OM dated 23.08.2016 issued by the DoP&T on the point of continuation of suspension in absence of issuance of charge sheet.
Learned Counsel for the Applicant Mr. Mohanty also placed reliance on various judgments with regard to the proposition that Government can fill up the gaps and supplement the rules by issuing instructions not inconsistence with the rules (State of Haryana Vs. Shamsher Jang Bahadur (1972) 2 SCC 188, Lalit Mohan Deb and others Vs. UOI (1973) 3 SCC 862, Comptroller and Auditor of India & ors Vs. Mohanlal Mehrotra & ors. (1992) 1 SCC 20), Katyani Dayal & ors. Vs. UOI & Ors. (1980) 3 SCC 245, Guman Singh Vs. State of Rajasthan & ors. (1971) 2 SCC 452, Paluru Ramkrishaniah & ors. Vs. UOI (1989) 2 SCC 541.
5.4 It is stated that with regard to extension of suspension the instruction issued by DoP&T vide OM dated 21.07.2016 and 23.08.2016 (supra) have to be scrupulously followed including the timelines / time schedule provided in the said OM. It is submitted that any deviation to the said instruction and contrary decision, vitiates the decision making process. In support of the said submission, Learned Counsel referred (CAT/AHMEDABAD BENCH/OA/503/2020 ) 12 to the judgment passed in the case of H. V. Nirmala Vs. Karnataka State Financial Corporation, (2008) 7 SCC 639. The learned counsel also placed reliance on the judgment passed by Apex Court in case of Swarn Singh Chand Vs. Punjab State Electricity Board reported in 2009 (7) SCALE 622 : (1979) 3 SCC 409, and further submits that in the present case, since the respondents failed to follow the DoP&T instructions while taking a decision to extend the suspension period and hence the decision making process suffers from procedural infirmities.
5.5 Learned counsel additionally submits that it is not correct on the part of respondents to state that the Charge Memorandum can be issued beyond the period of 90 days of the suspension and can extend the period of suspension by recording sufficient reasons for it. In this regard, learned counsel reiterated that the Hon'ble High Court of Orissa in case of UOI Vs. Ashiquzzman (Ann. A/22) after considering the identical proposition as raised by the respondent herein as also by considering the judgment passed in Dr Rishi Anand case (supra) rejected the said submission of respondents. Additionally, it is submitted that against the said judgment the respondents had filed SLP (C) No.15138/2020 which came to be dismissed by the Hon'ble Apex Court vide order dated 18.01.2021 (Annexure A/25). Further it is stated that the Review Petition No.41/2021 (UOI v/s Sandeep Yadav@ Yadav Sandeep) in WP (C) 12859/2020 before High Court of Orissa filed by the respondents was also dismissed vide order dated 09.04.2021 (Annexure A/27). It is stated that by accepting the judgment passed by Hon'ble High Court in case of Ashiquzzman, the Central Board of Indirect Taxes and Customs revoked the suspension of said Shri Ashiquzzman vie order dated 08.03.2021 (Annexure A/25 referred) and on the same line the suspension of Shri Sandeep GM Yadav, was also revoked by the respondents vide order dated 18.06,2021 (Annexure A/30). Therefore, Learned Counsel for the applicant submits that law laid down by Hon'ble High Court of Orissa in case of UOI Vs. Ashiquzzman and Sandeep Yadav, hold the field (CAT/AHMEDABAD BENCH/OA/503/2020 ) 13 and the case of applicant is squarely covered by the said judgment. Therefore, the continuation of suspension of the applicant is bad in law.
6 Heard the counsel for parties and perused the materials on record.
7 The prolonged suspension of government employee and the practice of protracted suspension have been deprecated by Hon'ble Apex Court in catena of decisions. The Hon'ble Apex Court in the case of Ajay Kumar Choudhary Vs. UOI, through its Secretary and another, reported in (2015) 7 SCC 291 held as under:-
(11) Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature .Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.
(12) Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is to determine his innocence or iniquity.
Much too often this has now become an accompaniment to retirement. Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that "We will sell to no man, we will not deny or defer to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of the (CAT/AHMEDABAD BENCH/OA/503/2020 ) 14 United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
(13) Article 12 of the Universal Declaration of Human Rights, 1948 assures that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks".
(14) More recently, the European Convention on Human Rights in Article 6(1) promises that:
6(1) "in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reason
-able time ."and in its second sub article that:
6(2) "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
Further, after referring to the law laid down in the case of Kartar Singh v/s State of Punjab (1994) 3 SCC 569; Abdul Rehman Antulay v/s R.S Nayak (1992) 1 SCC 225; State of Punjab v/s Chamanlal Goyal (1995) 2 SCC 570; Raghubir Singh v/s State of Bihar (1986) 4 SCC 481 the Hon'ble Apex Court in the case of Ajay Choudhary (supra) emphasised the point of the legal expectation of expedition and diligence being present at every stage of a criminal trial and fortiori in departmental enquiries and in this regard it has been further held that :
Para(20) "..................we are spurred to extrapolate quintessence of the proviso to Section 167(2) CrPC, 1973 to moderate suspension orders in cases of departmental/disciplinary enquiries also. It seems to us that the parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accuse of commission of the most heinous crime, of fortiori suspension should not be continued after the expiry of the similar period especially when a memorandum of charges/charge- sheet has not been served on the suspended person. It is true that the proviso to section 167 (2) CrPC postulates personal freedom, but respect and (CAT/AHMEDABAD BENCH/OA/503/2020 ) 15 preservation of human dignity as well as to a speedy trial should also be placed on the same pedestal.(21)
We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution.
We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. (22) So far as the facts of the present case are concerned, the Appellant has now been served with a Charge-sheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review.
(23) The Appeal is disposed of in the above terms and we desist from imposing costs.
8 It is noticed that the aforesaid judgment of the Apex Court has been implemented by the Govt. of India and the DoP&T Estt. had issued an Office Memorandums dated 21.07.2016 wherein it has been clarified that simultaneous action of prosecution and initiation of departmental proceedings (CAT/AHMEDABAD BENCH/OA/503/2020 ) 16 is permissible in the light of various judgments of Supreme Court including the judgment in 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 been filed in a Court of law.
It is noticed that pursuant to the observation made by Hon'ble Apex Court in para 21 in Ajay Kumar Choudhary case (2015) 7 SCC 291, 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."
9 Further, it is noticed that the Principal Bench of this Tribunal in its order dated 31/05/2018 passed in OA No.1224/2018 by following the dictum laid down by the Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra) as also referring to the judgment passed by Hon'ble Delhi High Court in case of Govt. of NCT, Delhi Vs. Dr. Rishi Anand, rejected the submission of the respondents (therein) that even if the DA failed to issue charge-sheet within 90 days of the initial suspension, the Court will not automatically quash the suspension order. Further, the Tribunal held that the dictum laid down in Ajay Kumar Choudhary's Case (supra) clearly stipulates that in case no Memorandum of Charges / charge-sheet is issued within 90 days from the date of initial suspension of an employee, the order of suspension will have to go. Accordingly, the suspension of applicant therein beyond initial period of 90 days was set aside and quashed.
At this stage, it is apt to mention that the said order was accepted by the respondent therein and by exercising the powers conferred by Clause - (c) of sub rule 10 of CCS (CCA) Rules, 1965, the suspension of the applicant in aforesaid OA No.1224/2018 was revoked vide order dated 26/06/2018 (Ann. A/18 referred).
10 Further, while going through the Apex Court judgment relied upon by the applicant in the case of State of Tamil Nadu Rep. by Secretary to Govt.
(CAT/AHMEDABAD BENCH/OA/503/2020 ) 17(Home) Vs. Promod Kumar, IPS & Anr reported in (2018) 17 SCC 677 :
2019 (2) SCC L&S 127 we find that the Hon'ble Apex Court while dealing with the issue relating to the prolonged continuation of suspension of the Officer / employee, upheld the findings recorded by Madras Bench of this Tribunal in OA No.165/2016 directing revocation of suspension as there was no material to indicate that the applicant therein had tampered with the evidence or influenced the witnesses and therefore, the public servant cannot be continued under suspension for a prolonged period. The Apex Court had also upheld the order passed by Hon'ble High Court of Madras dismissing the Writ Petition filed against the said order of Tribunal.
Further, it is seen that the Hon'ble Apex Court in the said judgment, after taking into consideration the fact that the officer who was under
suspension for more than 6 years, while granting bail to him, liberty was given to the investigating agency to approach the court in case he indulged in tampering with the evidence, since no complaint was made by the CBI in that regard and even now there is no specific instance of any attempt to tamper with evidence, the recommendation of Review Committee for extension of the suspension and by referring to the observation made in Ajay Kumar Choudhary's Case (supra) that "this Court has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration", The Hon'ble Apex Court concluded that "no useful purpose would be served by continuing the suspension any longer and that his reinstatement would not be threat to a fair trial by reiterating the observation of the High Court that the Appellate State has the liberty to appoint the officer in the non-sensitive post."
11 At this stage, it is appropriate to mention that in an identical case of an officer working in the same department as Deputy Commissioner namely, Shri Sandeep G M Yadav who was also placed under suspension based on CBI/ACB case filed against him and the department failed to issue charge- sheet/ Charge Memorandum within time line stipulated by DoP&T OM dated 23.08.2016 and continued to keep him under suspension. The Hon'ble High Court by rejecting the submission of the respondent that it is suffice to record the reason for extending the suspension of the officer, even if no charge (CAT/AHMEDABAD BENCH/OA/503/2020 ) 18 memorandum has been issued within the time limit, the suspension of the said officer was quashed and set aside by following the law laid down in the case of Ajay Kumar Choudhary (supra). The SLP filed against the said order was also dismissed. Similarly, in another case of identically placed officer of the same department namely, Shri Ashiqzzaman, Deputy Commissioner, the Hon'ble High Court of Orissa upheld the decision of Cuttack Bench of this Tribunal that the prolonged suspension that too without initiating disciplinary proceedings before expiry of the initial period of suspension had quashed and set aside the suspension of the said officer. The SLP filed thereon was also dismissed. By accepting the said dictum the O/o. Central Board of Indirect Taxes and Custom Department of Revenue, New Delhi has revoked the suspension order of both the officers and reinstated them in service vide order dated 18.06.2021 in the case of Sandeep G M Yadav (Ann. A/30 referred) and order dated 08.03.2021 in the case of Shri Ashiqzzaman, (Annexure A/25 referred).
12 From the above, it can be seen that the Hon'ble Apex Court as well the High Court and this Tribunal in various judgments and orders consistently deprecated the prolonged suspension of the government employee and set aside the continuation of such prolonged suspension during the pendency of disciplinary/proceedings as well as criminal proceedings against the Officer. It can be seen that the respondent herein, in the case of similarly placed officers revoked such prolonged suspension in light of law laid down by Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra) and other judgments / orders referred hereinabove.
13 Keeping in mind the aforesaid settled principles of law on the point of prolonged suspension not being justified, undisputedly the applicant in the present case while working as Deputy Commissioner of Custom, Mundra, Gujarat was placed under deemed suspension in terms of Rule 10 (2)(a) of CCS (CCA) Rules, 1965 from the date of his detention by the CBI, i.e., 27/09/2017 vide impugned order dated 27.10.2017 (Annexure A/8) and his headquarter had been changed from Mundra to the O/o Chief Commissioner of CGST, Gujarat Zone, Ahmedabad by allowing subsistence allowance as per Provision of FR-53.
(CAT/AHMEDABAD BENCH/OA/503/2020 ) 1913.1 It is noticed that CBI, on completion of investigation submitted Charge Sheet on 25/11/2017 before the Special Court with respect to criminal case i.e. RC No. 292017A0010 dated 18/09/2017 for the offence under Section 120-B of IPC r/w. Section 7 and 11 of the Prevention of Corruption Act, 1988 before CBI Special Court; Ahmedabad. Thereafter, the applicant was released on bail on 08/12/2017.
13.2 It is noticed that in impugned order dated 21.12.2017 (Annexure A/1), whereby the Respondent no.1 by accepting the recommendation of the Review Committee for the first time extended the period of suspension for a further period of 180 days w.e.f. 26.12.2017 stating therein that having regard to the gravity of offence and the fact that the officer has not been granted bail till date, whereas admittedly the applicant had already been released on bail on 08.12.2017. The respondents have categorically recorded in subsequent order of extension of suspension dated 18.06.2018 that the applicant had been released on bail on 08.12.2017. It can be seen that the respondent failed to take proper updates at the time issued the first order of extension of suspension i.e. 21.12.2017.
Not only that, the respondents have also failed to adhere to the instructions contained in DoP&T OM dated 23.08.2016 and 21.07.2016.
It is not in dispute that vide order dated 27.10.2017 (Annexure A/8), the suspension of the applicant was made effective from 27.09.2017 and the respondent had initiated disciplinary proceedings against the applicant by serving the charge memorandum only on 26.02.2019 i.e. much beyond the initial 90 days of suspension of the applicant.
13.3 Thereafter, the Competent Authority continued to extend the period of suspension of applicant mainly on the ground of pendency of criminal proceeding as well as the disciplinary proceedings against the applicant. As per the record, the last order of extension of the suspension is of 08.12.2020 (Annexure A/6) indicates that while (CAT/AHMEDABAD BENCH/OA/503/2020 ) 20 extending the period of suspension, the disciplinary authority has taken into consideration the recommendation of "the Suspension Review Committee" which reads as under:-
(i) the prosecution sanction under Section 19(1)(a) of Prevention of Corruption Act, 1988 has been accorded by order dated 26/03/2018 against the applicant.
(ii) the case RC 10 (A)/2017 (Special Case No.18/2017) is still at framing of charges stage
(iii) the Departmental Charge Memorandum 4/2019 dated 26/02/2019 has been issued to the applicant and inquiry report is awaited in this regard.
(iv) the subsistence allowance of the applicant was increased by 50% during last review of the suspension (June, 2020).
Further the DA in the said order dated 08.12.2020 has also observed that "the Review Committee has recorded that Officer was arrested by the CBI on 27/09/2017 and placed under deemed suspension on that day, the said criminal proceeding as well as the disciplinary proceeding started against the officer, the offence in this case involves bribery which is prejudicial to the interest of the government and keeping the officer under suspension would demonstrate the policy of the government to deal firmly with corruption cases, that it has been decided to continue the suspension of the applicant for another 180 days. The said recommendation of the review committee was accepted by the disciplinary authority. Accordingly, the Competent Authority in terms of provision of Rule 10(1)(a)(b) and 10(6) of CCS(CCA) Rules, 1965 vide impugned order dated 08/12/2020 extends the suspension of applicant for a further period of 180 days w.e.f. 10/12/2020."
14 It can be seen that there is no instance of tampering by the applicant or any hurdle created by the applicant to initiate disciplinary proceedings against him. Against the applicant the disciplinary proceeding was initiated in the year Februrary 2019 and the same is yet at enquiry stage only. In criminal proceedings same is at the stage of framing of charges. It is not the case of respondents that due to reasons attributed to the applicant the respondents (CAT/AHMEDABAD BENCH/OA/503/2020 ) 21 could not meet with the time line stipulated in the OM issued by DoP&T (supra) for issuing belated charge memorandum.
The disciplinary authority while extending the period of suspension, recorded one of the reason that the applicant has been charged with serious offence. In this regard it is required to mention that it is trite of law that once the disciplinary proceedings are initiated for alleged misconduct against the employee, the said proceeding should reach to its logical conclusion and till then it cannot be said that the alleged charges are proved and officer cannot be held guilty before the trial. Under the circumstances, the submission of the respondents that the competent authority has recorded ground for extension of the suspension which is suffice to justify the impugned order is not acceptable and we are in agreement with the submission of the counsel for the applicant that the continued suspension of the applicant is contrary to the DoP&T instructions on the subjects as also the law laid down by the Hon'ble Apex Court.
15 On a conjoint reading of the judgment passed by Hon'ble Apex Court in the case of Ajay Kumar Choudhary (supra) and the judgment of Hon'ble High Court of Orissa in case of Sandeep GM Yadav (supra) as also judgment passed by Delhi high Court in case of Rishi Anand (supra) and the factual matrix in the present case, the respondents failed to follow the binding instructions contained in OM dated 23.08.2016 and 21.07.2016 (supra) of DoP&T while reviewing the suspension of the applicant. The reason assigned for extending the period of suspension is not acceptable in light of dictum laid down in the aforesaid judgments as also the spirit of provision of Rule 10 of CCS (CCA) Rules, 1965 since the respondents failed to adhere to the time line stipulated in OM issued by DoP&T and it is trite law that suspension cannot take the form of punishment. Resultantly, the very first order of extension of suspension dated 21.12.2017 suffers from legal infirmities. Accordingly, the subsequent orders for extension of suspension of the applicant which are impugned herein are not tenable. We, at this stage, also take note of the fact that the head-quarter of the applicant has already been changed from his original place of working i.e. Mundra to Ahmedabad. We (CAT/AHMEDABAD BENCH/OA/503/2020 ) 22 are convinced that no useful purpose will be served by continuing the applicant under suspension any longer.
16 As a result of above, the applicant is entitled to succeed. The present OA is accordingly partly allowed with following directions:-
(i) Suspension of the applicant beyond initial 90 days is hereby set aside and quashed.
(ii) As a consequence, the impugned orders dated 21.12.2017, 18.06.2018,
17.06.2019, 10.12.2019 11.06.2020 and 08.12.2020 (Annexures A/1 to A/6) are quashed and set aside.
(iii) As a consequence of quashing of the suspension, the applicant shall be reinstated within one month from the date of receipt of copy of this order.
(iv) The applicant shall be entitled to salary minus the subsistence allowance already received by him for the interregnum period, i.e. from the date when his initial suspension ended after 90 days and till the date he is reinstated in service with simple interest @ 8%.
(v) Initial period of suspension shall be decided in accordance with the rules on the subject.
(vi) This order will not however, come in the way of the respondents in further proceeding with the memorandum of charges dated 26.02.2019 in accordance with law.
16 There shall be no orders as to costs.
(A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
abp