Central Administrative Tribunal - Hyderabad
Dr Chandravanshi Yaduvanshi ... vs Revenue Cbic on 14 June, 2023
OA No.21/507/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA No.21/0507/2021
Reserved on: 15.02.2023
Pronounced on: 14.06.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Hon'ble Mr. B. Anand, Administrative Member
Dr. Chandravanshi Yaduvanshi Manikanhaiya,
Aged 41 years,
S/o. Shri Ram Udgar Yadav,
Deputy Commissioner (Under Suspension),
O/o. Chief Commissioner of Central Goods and Service Tax,
Hyderabad Zone, Department of Revenue,
Ministry of Finance, GST Bhavan, Lal Bahadur Stadium Road,
Basher Bagh, Hyderabad - 500 004.
R/o. 402, Raghava Residency,
Road No.2, Shanti Nagar,
Masab Tank, Hyderabad - 500 028.
...Applicant
(By Advocate: Mr. Tushar Ranjan Mohanty)
Vs.
1. Union of India, through the Secretary,
Dept 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: Mr. R.V. Mallikarjuna Rao, Sr. PC for CG)
Page 1 of 24
OA No.21/507/2021
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicant filed this OA challenging his suspension vide order dt. 25.10.2018 and the subsequent extension of the same vide orders dt. 21.01.2019, 19.07.2019, 15.01.2020, 14.07.2020, 11.01.2021, 07.07.2021 as bad in law. He seeks direction to treat the entire period of suspension from 25.10.2018 onwards as duty for all purposes; to pay the salary and other allowances for the entire period of suspension from 25.10.2018 onwards and to grant compound interest @ 18% p.a.
2. The applicant, who is a direct recruit officer of the Indian Customs and Central Excise Service of 2012 batch, was posted as Deputy Commissioner in the office of the Airport Special Cargo Commissionerate of Customs, Zone-III, Mumbai and while working as such, he along with Shri Asiquzzaman, Deputy Commissioner, who also worked in the same office, were reporting to Sri Vinay Brij Singh, Commissioner. Vide office order dt. 18.07.2018, the applicant was transferred to Hyderabad, Shri Asiquzzaman was transferred to Bhubaneswar and Sri Vinaj Brij was transferred to Kolkata. The applicant was placed under suspension vide order dt. 25.10.2018 on the contemplation of departmental proceedings against him. Likewise, Shri Asiquzzaman was also placed under suspension on 25.10.2018. The suspension of the applicant has been extended from time to time till the filing of the OA.
Page 2 of 24
OA No.21/507/2021
3. It is contended by the applicant that, though suspension may not be considered as a punishment, it does constitute hardship for government servant and it is to be ensured that the period of suspension is reduced to the barest minimum. It is further contended by him that as he was transferred from Mumbai to Hyderabad in July 2018, it cannot be said that he would tamper with the evidence. Even then, his suspension has been extended for a long time. His contention is that currency of suspension vide order dt. 25.10.2018 cannot extend beyond more than 90 days i.e. 23.01.2019 as no charge memo/ charge sheet was served on him within three months. In support of his claim, he relies on the judgment of the Hon'ble Supreme Court in Ajay Kumar Choudhary v. Union of India (2015) 7 SCC 291, which was implemented by the Govt. of India vide OM dt. 23.08.2016, which was issued by DOPT advising all Ministries/ Departments/ Offices to ensure that the dictum of the judgment in the said case is adhered to. The said judgment of the Hon'ble Apex Court has been followed by the Hon'ble Principal Bench of this Tribunal in OA Nos. 4159/2017, 915/2018, 1224/2018 and the Hon'ble Ernakulam Bench in OA 4/2019. He also cited the judgment of the Hon'ble Apex Court in State of Tamil Nadu v. Pramod Kumar, IPS, (2018) 17 SCC 677 wherein judgment in Ajay Kumar Choudhary' case has been relied and reiterated. The applicant also cited the judgment of the Hon'ble Delhi High Court in WP (C) No. 6859/2018 dt. 31.10.2018
4. It is his further contention that Shri Asiquzzaman, Deputy Commissioner, who was also placed under suspension, filed OA 693/2019 Page 3 of 24 OA No.21/507/2021 before Hon'ble Cuttack Bench of this Tribunal. Another officer of 2009 batch Sri Sandeep Yadav, who was arrested by CBI on 30.04.2018 and was admitted to Bail on 05.05.2018, who was consequently placed under suspension vide order dt. 11.05.2018, filed OA 617/2019 before the Hon'ble Cuttack Bench of this Tribunal. Hon'ble Cuttack Bench, following the judgment of the Hon'ble Principal Bench in OA 1224/2018 dt.31.05.2018, quashed and set aside the suspension of two officers beyond initial 90 days, vide judgment dt. 31.01.2020. Upon challenge, the Hon'ble High Court of Orissa, vide judgment dt. 31.07.2020, upheld the decision of the Hon'ble Cuttack Bench of the Tribunal dt.31.01.2020 in quashing the suspension of the applicants before the Tribunal. However, the Hon'ble High Court modified the order of the Tribunal to the extent of quashing the suspension from the dates the said officers prayed for. The Union of India also challenged the judgment of the Hon'ble High Court of Orissa before the Hon'ble Supreme Court unsuccessfully, as seen from the order of the Hon'ble Supreme Court dt. 18.01.2021. Thereafter, the Union of India implemented the order of Hon'ble High Court of Orissa and revoked the suspension of Shri Asiquzzaman vide order dt. 08.03.2021, w.e.f. 22.07.2019. Suspension of another officer Sri Sandeep Yadav was also revoked vide order dt.18.06.2021 w.e.f. 24.07.2019 after the Review Petition filed before the Hon'ble High Court of Orissa was dismissed. It is contended by the applicant that, though his case is similar to that of the said two officers, while revoking the suspension of Shri Asiquzzaman vide order dt. 08.03.2021, his suspension was further extended vide order dt. Page 4 of 24
OA No.21/507/2021 07.07.2021, which smacks of discrimination under Article 14 of the Constitution of India.
5. It is further submitted by the applicant that though CBI registered a case on 08.01.2020 against him, Shri Asiquzzaman, Deputy Commisisoner and Sri Vinay Brij Singh, Commissioner, but no charge sheet has been filed so far. Hence, this OA is filed with a prayer to quash and set aside his suspension and to treat the entire period of suspension as duty for all purposes with pay and allowances.
6. The respondents contested the OA by filing a reply statement and additional reply statement. The respondents state that, in contemplation of the departmental proceedings, the applicant was suspended vide order dt. 25.10.2018 and the same was further extended. It was found that the applicant actively connived with the importers for over-valuation of rough diamonds and therefore, a notice was issued to him. CBI registered a case against the applicant on 08.01.2020. CBI also vide letter dt. 20.05.2021 recommended for continuation of suspension of the applicant. Extension of suspension of the applicant was with the approval of the competent authority and the same is just and legal. They cited the judgment of the Hon'ble Delhi High Court in Govt. of NCT of Delhi v. Dr. Rishi Anand in WP (C) No. 8134/2017 dt. 13.09.2017, wherein it has been observed as under:
"xxx On a reading of Ajay Kumar Choudhary (supra), we are of the view that the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the Government Page 5 of 24 OA No.21/507/2021 servant - before, or after the service of the charge sheet - if there is sufficient justification for it..."
Therefore, the decision in Ajay Kumar Choudhary is not applicable in the light of the judgment of the Hon'ble Delhi High Court supra. CVC Circular dt. 25.09.2000 has stipulated that revocation of suspension of public servant facing serious charge of corruption should not be considered in a routine manner. DOPT OM dt. 23.08.2016 has only instructed to ensure issue of charge sheet within 90 days by placing the government servant under suspension, but it does not say that suspension will automatically lapse if the charge sheet is not issued within 90 days. There is no automatic reinstatement of a suspended employee after expiry of 90 days under CCS (CCA) Rules. They admitted that suspension of Shri Asiquzzaman and Sri Sandeep Yadav, applicants before the Hon'ble Cuttack Bench in the above referred OAs, has been revoked in compliance of the court orders.
7. The applicant filed rejoinder wherein he has stated that no disciplinary proceedings have been initiated against him so far nor the CBI filed charge sheet before the concerned Court. He further strengthened his contentions by some more judgments of Hon'ble Apex Court. He also cited the judgment of the Hon'ble Ahmedabad Bench of this Tribunal dt. 21.01.2022 in OA 503/2020, filed by Sri Sandeep Jot Singh, IRS officer of 2009 batch, who was placed under suspension vide order dt. 29.09.2017 and the Tribunal quashed and set aside his suspension beyond the initial period of 90 days as no charge memo was issued within the said period. In fact, the said officer was issued with major penalty charge memo dt. Page 6 of 24
OA No.21/507/2021 26.02.2019. Therefore, his case is much stronger than the case of Sri Sandeep Jot Singh.
8. The applicant cited judgments of the Hon'ble Principal Bench of this Tribunal in OA 1674/2018, dt. 27.04.2018 and of Ahmedabad Bench of this Tribunal in OA 249/2021 dt. 29.03.2022; Kolkata Bench of this Tribunal in OA 473/2021 dt.09.06.2022 and also the judgments of the Hon'ble High Court of Gujarat in SCA No. 6087/2022 dt. 26.08.2022; SCA No. 4843/2019 dt. 16.09.2019; judgment of the Hon'ble High Court of Madras in WP No.20987/2014 & 41025/2016 dt.17.04.2018; judgment of Hon'ble High Court of Delhi in WP (C) No.6456/2016 dt. 26.07.2016; judgment of the Hon'ble High Court of Kerala in WP (C) No. 23665/2017 (G) dt. 07.12.2017 and also the judgment of the Hon'ble Apex Court in K. Ajit Babu & Ors v. Union of India, 1997 (6) SCC 473 in support of his case. He also cited the judgments of CAT, Principal Bench in OA 2701/2018 dt. 06.12.2018; OA 208/2019 dt. 03.05.2019 and OA 3200/2015 dt. 14.09.2015; of CAT, Mumbai Bench in OA 445/2009 dt. 09.04.2010 & OA 208/2019 dt.03.05.2019; of CAT, Ernakulam Bench in OA 731/2016 dt. 04.01.2023; and of CAT, Guwahati Bench in OA 160/2021 dt. 09.01.2023.
9. Heard learned counsel for the parties at length and perused the pleadings on record and the judgments cited by either side.
10. During the course of hearing, learned counsel for the respondents submitted that the suspension of the applicant has been revoked w.e.f. Page 7 of 24
OA No.21/507/2021 02.01.2023 and produced an Order passed by the CBDT dt. 29.12.2022 before us to that effect. The order dt. 29.12.2022 reads as under:
"WHEREAS, Shri Chandravanshi Yaduvanshi Manikanhaiya, Deputy Commissioner was placed under suspension in terms of Rule 10(1)(a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, vide Order dated 25.10.2018.
2. WHEREAS, suspension of Shri Chandravanshi Yaduvanshi Manikanhaiya, Deputy Commissioner was further extended for 180 days each vide orders dt. Orders dt. 21.01.2019, 19.07.2019, 15.01.2020, 14.07.2020, 11.01.2021, 07.07.2021, 03.01.2022 & 05.07.2022.
3. WHEREAS, suspension of Shri Chandravanshi Yaduvanshi Manikanhaiya, Deputy Commissioner has been again reviewed by the Suspension Review Committee. The Committee has recorded that the Committee noted the following facts to take an informed decision in the matter:
i. In connection with alleged involvement in a case of over-valuation of rough diamonds at Bharat Diamond Bourse, Shri C.Y. Manikanhaiya, Deputy Commissioner was placed under suspension with immediate effect vide Order dated 25.10.2018. Since then the officer continues to be under suspension. His suspension was last extended for 180 days w.e.f. 06.07.2022 till 01.01.2023, vide order dated 05.07.2022.
ii. Shri C.Y. Manikanhaiya, Deputy Commissioner was involved in a case of over-valuation of rough diamonds, which was investigated by the DRI, Mumbai. It was found that Shri C.Y. Manikanhaiya, Deputy Commissioner actively connived with the importers for over-valuation of rough diamonds and was therefore, made a co-noticee in the Show Cause Notice dated 10.07.2019 issued by DRI to importers. Said Show Cause Notice is pending adjudication as some of the notices have filed writ petitions before Hon'ble Bombay High Court on the basis of Hon'ble Supreme Court's judgment dated 09.03.2021 in the case of Cannon India Pvt Ltd v. Commissioner of Customs.
iii. That subsistence allowance of Shri C.Y. Manikanhaiya, Deputy Commissioner was enhanced by 50% during review of suspension in July 2020. iv. The CBI, ACB, Mumbai in its report dated 30.12.2021 in connection with RC BA1/2020/A0001 dated 08.01.2020, has recommended RDA Major and also sought prosecution sanction against the officer. Prosecution sanction proposal is under submission for approval of Competent Authority. v. Shri C.Y. Manikanhaiya, DC has preferred OA No. 507/2021 before Hon'ble CAT, Hyderabad against suspension and the same is pending for final decision.
4. The Suspension Review Committee noted that the amendment dated 19.10.2022 to Rule 7 of CCS (CCA) Rules has stipulated that in a case where no charge sheet is issued under these rules, the total period under suspension or deemed suspension, as the case may be, including any extended period in terms of sub-rule (6) shall not exceed:
i. two hundred seventy days from the date of order of suspension, i.e. the Government servant is placed under suspension in terms of clause (a) of sub-rule (1) or Page 8 of 24 OA No.21/507/2021 ii. two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause (b) of sub-rule (1) as the case may be.
4.2 Considering the above rule position, the Committee is of the view that suspension of the officer needs to be revoked. The Committee is also of the view that at this juncture, it cannot be said with certainty that suspension of the officer was not justified. Since the suspension is being revoked pending finalization of the disciplinary or court proceedings, which are likely to be initiated in due course, the treatment of suspension period (25.10.2018 to 01.01.2023) and pay and allowances for the suspension period, shall be reviewed on its own motion after the conclusion of the disciplinary / criminal proceedings in terms of FR 54-B(1) & (6). In view of the above, Suspension Review Committee recommended that suspension of Shri C.Y. Manikanhaiya, Deputy Commissioner, should be revoked with effect from 02.01.2023, in terms of Rule 10(5)(c) of CCS (CCA) Rules, 1965.
5. AND WHEREAS, the above-mentioned recommendation of the Suspension Review Committee was placed before the Disciplinary Authority. After careful consideration of the facts and circumstances of the case, the Disciplinary Authority has decided to accept the above-mentioned recommendation of the Suspension Review Committee.
6. NOW, THEREFORE, the President, in terms of Rule 10(5)(c) of CCA (CCA) Rules, 1965, revokes the suspension of Shri Chandravanshi Yaduvanshi Manikanhaiya (ID 4474, DOB: 06.02.1980), w.e.f. 02.01.2023. It is ordered accordingly.
(By order and in the name of the President) Sd/xxx (Balwant Parixit Pandey) Under Secretary to the Government of India"
11. Learned counsel for the respondents further submitted that consequent to revocation of suspension of the applicant w.e.f. 02.01.2023, the applicant also joined duty and assumed charge of Deputy Commissioner, CCO, Hyderabad GST & Customs Zone, Hyderabad on 02.01.2023. Thereafter, vide office order dt. 07.01.2023, the applicant has been transferred to Medchal GST Commissionerate, where the applicant assumed the charge on 10.01.2023. He has also produced before us the orders to the above effect.
12. Learned counsel for the respondents also produced copy of Sanction Order No. 03/2023 dt. 10.01.2023 issued by the Dept of Revenue, Ministry Page 9 of 24 OA No.21/507/2021 of Finance, relevant portion of the same vis-à-vis the applicant is extracted hereunder:
"20. AND WHEREAS, the Hon'ble President of India, being the Competent Authority to remove Dr. Chandravanshi Yaduvanshi Manikanhaiya, the then Deputy Commissioner, PCCCC from office, after fully and carefully considering the fact and circumstances of the case and upon going through the material available in the file including the documents collected during the investigation and statement of witnesses recorded and provided by the Investigating Agency and after proper application of mind to those material, has come to the conclusion that Dr. Chandravanshi Yaduvanshi Manikanhaiya, Deputy Commissioner, PCCCC, should be prosecuted in the court of law for the offences punishable under section 120-B r/w 511, r/w 417, 420, 468, 471, 201 of IPC and Sec. 15 r/w. Sec 13(2) r/w 13(1)(d) of PC Act, 1988 and substantive offences thereof.
21. NOW, THEREFORE, the Hon'ble President of India do hereby accord sanction as required under Section 19(1)(a) of PC Act, 1988 (As amended in 2018) for prosecution of Dr. Chandravanshi Yaduvanshi Manikanhaiya, Deputy Commissioner, PCCCC, for aforesaid offences and for any offence or offences made out from the above facts & circumstances of the case, punishable under any other provisions of law and for taking cognizance of the said offences by the Court of Competent Jurisdiction."
[BY ORDER AND IN THE NAME OF PRESIDENT]
22. AND, I, BALWANT PARIXIT PANDEY, Under Secretary to the Government of India being authorized to authenticate under the Government of India Authentication (Order and Instruments) Rules, 1958 and Allocation of Business Rules as notified under Article 77 of the Constitution, do hereby convey the sanction of the President of India."
As seen from the order extracted above, the impetus for revoking the suspension of the applicant w.e.f. 02.01.2023 vide order dt. 29.12.2022, is the amendment brought out on 19.10.2022 to Rule 10, sub-rule (7) of the CCS (CCA) Rules, 1965 which lays down the maximum period of 270 days or two years, as the case may be. Fact remains that the applicant had been continued under suspension from 25.10.2018 to 01.01.2023, which is more than four years. In the order dt. 29.12.2022, it is also stated that the suspension is being revoked pending finalization of the disciplinary or court proceedings, which are likely to be initiated in due course and the treatment of the said period and the pay and allowances thereof, shall be reviewed Page 10 of 24 OA No.21/507/2021 after the conclusion of the disciplinary/ criminal proceedings. Thus, it is clear that no disciplinary proceedings have yet been initiated against the applicant though he was placed and continued under suspension from 25.10.2018 till 01.01.2023, which is too long period.
13. As referred to above, since the suspension of the applicant has already been revoked w.e.f. 02.01.2023, what remains to be adjudicated in this OA is whether the order of suspension and the extensions thereof from 25.10.2018 till 01.01.2023 are sustainable in law.
14. Learned counsel for the applicant vehemently argued that in view of the law laid down by the Hon'ble Supreme Court in Ajay Kumar Choudhary (supra), which has been implemented by the DOPT vide OM dt. 23.08.2016 and followed consistently by various Courts/Tribunals granting relief in similar cases cited by the applicant, the suspension of the applicant and the subsequent extensions thereof are not sustainable in law and thus, the applicant is entitled for the relief sought. As already referred, the applicant has filed cited judgments of this Tribunal of various Benches, Hon'ble High Courts and the Hon'ble Supreme Court in support of his claim that suspension beyond 90 days is bad in law if no charge memo issued within that period. We have perused the judgments cited by the applicant and are of the considered view that the law on the question whether the suspension beyond initial 90 days is sustainable, if no charge memo is served on the delinquent, is no more res integra. This issue has been set at rest by the Hon'ble Supreme Court in Ajay Kumar Choudhary's Page 11 of 24 OA No.21/507/2021 case, which holds the field as of now and the same has been followed in a catena of judgments.
15. For better appreciation, the directions of the Hon'ble Apex Court in Ajay Kumar Choudhary v. Union of India, Civil Appeal No. 1912 of 2015 dated 16.02.2015 are extracted as under:
"14. We, Therefore, direct that the currency of a suspension order should not extend beyond three months if within this period, the Memorandum of Charges/ Charge Sheet is not served on the delinquent officer/ employee; if the Memorandum of Charges/ Charge sheet is served a reasoned order must be passed for the extension of the suspension."
DOPT, Govt. of India, issued OM dt. 23.08.2016 (Annexure A-11), in compliance of the judgment of the Hon'ble Supreme Court in Ajay Kumar Choudhary and the relevant para reads thus:
"2. In compliance of the above judgment, 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 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."
(emphasis applied)
16. It is the specific case of the applicant that the suspension of one Sri Ashiquzzaman, Deputy Commissioner, who also worked in the office of the Airport Special Cargo Commissionerate of Customs, Zone-III, Mumbai and who was transferred to Bhubaneswar and placed under suspension on the same date i.e. 25.10.2018, was revoked vide order dt. 08.03.2021 w.e.f. 22.07.2019 pursuant to the court orders, whereas, his suspension was extended further vide order dt. 07.07.2021. Shri Ashiquzzaman filed OA Page 12 of 24 OA No.21/507/2021 260/693/2019 before CAT, Cuttack Bench and another individual by name Sandeep Yadav, another officer of Indian Customs and Central Excise Service, who was also placed under deemed suspension vide order dt. 11.05.2018 for being detained for more than 48 hours also filed OA 260/617/2019 before the CAT, Cuttack Bench and his suspension was also revoked w.e.f. 24.07.2019. Both the OAs filed by the above individuals were adjudicated and allowed by the CAT, Cuttack Bench vide a common judgment dt. 31.10.2020. Relevant portion of the said judgment is extracted hereunder:
"13. We have considered the revival submissions. The applicant has relied on the decisions of CAT, Principal Bench in O.A.No.915/2018 - decided on 02.04.2018 and in O.A.No.1224/2018 - decided on 31.05.2018.
14. In O.A.No.915/2018, the CAT, Principal Bench, relying on the judgment of Hon'ble Supreme Court in Ajay Kumar Choudhury" case (supra) and having regard to an earlier decision in O.A.No.4159/2017 disposed of on 21.12.2017 in which directions had been issued to the effect that:
"4. This O.A. is accordingly allowed. The impugned orders for extension of the suspension of the applicant (Annexure-A/2 to A/4) are hereby set aside. The applicant shall be treated to be in service after expiry of 90 days. Insofar as the initial period of 90 days is concerned, the respondents will take decision in accordance with law under Fundamental Rule 54-B. The applicant will be entitled to the salary after the expiry of 90 days of initial suspension. The respondents are directed to implement the above directions within a period of two months from the date of receipt of a certified copy of this order. No costs".
14. Further, we have also gone through the decision of CAT, Principal Bench in O.A.No.1224/2018. In Paragraph-14 in O.A.No.1224/2018, the CAT, PB, held as follows:
"14. Learned counsel for the respondents also placed reliance upon a judgment of the High Court of Delhi in WP(C) No.8134/2017 - Government of NCT of Delhi vs. Dr.Rishi Anand decided on 13.09.2017 [2017 SCC On Line Del 10506], and tried to convince the Tribunal that even if the respondents have failed to issue charge-sheet within 90 days of the initial suspension, the court will not automatically quash the suspension order in the light of Ajay Kumar Choudhury (supra). The counsel further placed reliance upon some observations of the High Court in this regard. We are unable to accept this contention of the respondents also. We have gone through the judgment passed by the High Court and we find that this judgment is not at all applicable as it is on different set of facts and circumstances. Even if the High Court has referred to the judgment of Ajay Kumar Choudhury (supra) in their judgment, it will not Page 13 of 24 OA No.21/507/2021 dilute the findings of the Apex Court in the aforesaid judgment, which clearly stipulates that in case no memorandum of charge/charge-sheet is issued within 90 days, the order of suspension will have to go".
15. There is no doubt that Rule-10 (6) of CCS (CCA) Rules, 1965 empowers the Competent Authority to extend suspension order of a Government employee. But the same should be based on cogent and justifiable reasons. Admittedly, the headquarters of both the applicants have been shifted to the jurisdiction of the authorities in the State of Odisha. Neither in the orders extending the suspension of the applicant nor in the counter-replies filed in both the OAs, there has been any whisper made by the Respondents that in case the orders of suspension are revoked there is every possibility of the applicants to tamper the evidence and influence the witnesses in order to put a spanner in the process of inquiry. The object of placing a Government employee under suspension is with a view to keeping him/her away from the duties so that he/she cannot not be able to tamper the evidence or influence the witness based on which charges are sought to be established. By shifting of headquarters of both the applicants, such an apprehension appears to be out of place. Respondents have also not adduced any justifiable reason as to why there has been delay in issuing charge-sheets to both the applicants. Besides the above, the recommendations made by the Review Committee for extension of the duration of suspension of the applicants appear to be based on no good and sufficient reasoning. As a matter of course, in the absence of any memorandum of charge being issued to the applicants, although these facts ought to have been considered by the Competent Authority while extending the period of suspension, the same have not been considered at all. Therefore, we are to conclude that even if Rule-10(6) of CCS (CCA) Rules, 1965 authorizes the Competent Authority to extend the duration of suspension beyond a period of 90 days, that extension by no stretch of imagination could be bereft of good and sufficient reasons. In view of this, following the ratio decided by the CAT, Principal Bench, cited supra, we make the following orders:
(i) Orders of suspension in respect of the applicants in both the OAs beyond the initial period of 90 days are quashed and set aside.
(ii) As a consequence of quashment of the orders of suspension, the applicants shall be reinstated in service within a period of 45 days from the date of receipt of this order.
(iii) The applicants shall be entitled to salary minus the subsistence allowance already received by them for the interregnum period, i.e., from the respective date(s) when their initial suspension ended after 90 days and till the date(s) they are reinstated in service.
(iv) The treatment of the initial period of suspension upto 90 days shall be decided in accordance with the rules on the subject.
(v) This order will not stand in the way of the Respondents to proceed against the applicants by issuing Memorandum of Charges.
16. In the result, both the OAs are allowed as above, with no order as to costs."
17. Union of India challenged the above order before the Hon'ble High Court of Judicature for Orissa at Cuttack vide WP (C) No. 12859 of 2020 Page 14 of 24 OA No.21/507/2021 (Against OA No. 693/2019) and WP (C) No.12861 of 2020 (Against OA No. 617/2019) and the Hon'ble High Court partly allowed the Writ Petitions vide an elaborate judgment dt. 31.07.2020 and the relevant paragraphs of the said judgment are as under:
"The above projected reasons/ grounds in support of the continued suspension of the opposite parties on a plain reading are not seen to be so relevant or of significance in the totality of the facts and circumstances as discussed. The opposite parties have been shifted from their place of posting, where the allegations were levelled. In the absence of any specific material, the likelihood on their part to influence the investigation and tamper with the evidence in the criminal trial is hardly inferable. There are no such indications that even in their present place of posting, the working atmosphere in case of their joining the work in the office is likely to be polluted when the fact remains that the petitioners are at liberty to post them in any such non-sensitive post as deemed proper. After that incident, no further allegation of their misconduct in any way has also been reported.
Xxx xxx xxx For all the aforesaid, regard being had to the principles of law settled in the cited decisions (supra); we find no infirmity in the ultimate conclusion of the Tribunal that further continuance of suspension of the opposite parties would no more be useful.
However, as it is found that the challenges were to the order dated 19.07.2019 extending the suspension of the opposite party of (A) with effect from 22.07.2019 and order dated 22.07.2019 extending the suspension of the opposite party at (B) with effect from 24.07.2019; We, accordingly direct that they be not treated to have been under suspension with effect from the above said dates and not as has been ordered by the Tribunal as effective from the expiry of the initial period of suspension for 90 days.
The petitioners would take a decision on how to treat the period of suspension of the opposite parties and their entitlements in accordance with the Rules holding the field.
With the modification of the final orders passed by the Tribunal to the extent as indicated above; these writ applications are partly allowed."
Thus, the order of the CAT, Cuttack Bench was upheld by the Hon'ble High Court of Orissa, but was modified by the Hon'ble High Court to the extent of quashing of the suspension from the dates the applicants therein prayed for instead of the period beyond initial 90 days. The Order of the Hon'ble High Court in WP (C) No. 12859 of 2020 (in respect of Shri Page 15 of 24 OA No.21/507/2021 Ashiquzzaman) was carried in appeal before the Hon'ble Supreme Court by the Union of India vide SLP No. 15225/2020 and the Hon'ble Supreme Court did not interfere with the order and the SLP was accordingly dismissed vide order dt. 18.01.2021.
18. Thus, the order of the Cuttack Bench in OA 693/2019, as modified by the Hon'ble High Court of Orissa in WP No. 12859/2020, has attained finality. Consequently, the respondents implemented the same vide order dt. 08.03.2021 (Annexure A-25), which reads thus:
"Whereas, Shri Ashiguzzaman, Deputy Commissioner was placed under suspension in terms of Rule 10(1)(a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, vide Order dated 25.10.2018.
2. Whereas, suspension of Shri Ashiguzzaman, Deputy Commissioner was extended for 180 days each vide Orders dated 21.01.2019, 19.07.2019, 15.01.2020, 14.07.2020 and 11.01.2021.
3. Whereas, the OA No. 693/2019 preferred before Hon'ble CAT, Cuttack Bench, by Shri Ashiguzzaman, Deputy Commissioner, was disposed of vide Order dated 31.01.2020, quashing the suspension orders beyond initial 90 days.
4. Whereas, against the impugned Order dated 31.01.2020 of Hon'ble CAT, Cuttack, a WP No. 12859/2020 was filed by the Department before Hon'ble Orissa High Court. The said WP No. 12859/2020 was disposed of by Hon'ble High Court vide Order dated 31.07.2020, quashing the suspension orders beyond 19.07.2019 (Order dated 19.07.2019 w.e.f. 22.07.2019 extended the suspension of Shri Ashiguzzaman, Deputy Commissioner, for 180 days) and not as has been ordered by the Tribunal as effective from the expiry of the initial period of suspension for 90 days.
5. Whereas, against the Impugned order dated 31.07.2020, a SLP (C) No. 015225/2020 was filed before Hon'ble Supreme Court of India, which has been dismissed by the Hon'ble Supreme Court of India vide Order dated 18.01.2021.
6. Whereas, the Competent Authority has decided to accept the said Order dated 18.01.2021 of Hon'ble Supreme Court of India and revoke suspension of Shri Ashiguzzaman, Deputy Commissioner.
7. Whereas, suspension is being revoked pending finalization of the disciplinary or court proceedings, the treatment of suspension period (25.10.2018 to 22.07.2019) and pay allowances for the suspension period, Page 16 of 24 OA No.21/507/2021 shall be reviewed on its own motion after the conclusion of the disciplinary/ criminal proceedings in terms of Rule 54-B (6).
8. Now, therefore, the President, in terms of Rule 10(5)(c) of CCS (CCA) Rules, 1965, revokes the suspension of Shri Ashiguzzaman, Deputy Commissioner (ID:3952) (D.O.B.: 11.10.1980), with effect from 22.07.2019, in compliance of impugned final judgment and order dated 31.07.2020 of Hon'ble Orissa High Court in WP (C) No. 12859 of 2020, upheld by Hon'ble Supreme Court of India vide Order dated 18.01.2021 in SLP (C) No. 015225/2020."
19. Similar SLP No. 15138/2020 was filed before the Hon'ble Supreme Court against the order in WP No. 12861/2020 of the Hon'ble High Court of Orissa in so far as Shri Sandeep G.M. Yadav, Deputy Commissioner and the said SLP was dismissed vide order dt. 18.01.2021 and consequently, suspension of the said official was also revoked w.e.f. 24.07.2019 vide order dt. 18.06.2021 (Annexure A-28).
20. It is the specific plea of the applicant that though he stands on a similar footing as that of Shri Ashiquzzaman, Deputy Commissioner, whose suspension has been revoked as stated above, the same has not been considered by the respondents and his suspension has been extended further, which is discriminatory and arbitrary. The respondents in their reply, while admitting the facts leading to culmination of revocation of suspension of the said two officers, simply denied the contention of the applicant vis-à-vis parity between him and Shri Ashiquzzaman, Deputy Commissioner, but not stated as to how there can be differential treatment.
21. As seen from the material and the observations of the CAT, Cuttack Bench as well as the Hon'ble High Court of Orissa, this Tribunal is of the considered view that the case of the applicant is squarely covered by the Page 17 of 24 OA No.21/507/2021 order of the CAT, Cuttack Bench and he is entitled for similar relief, granted by the Cuttack Bench of this Tribunal in OA No. 617/2019 & 693/2019.
22. As seen from the Judgment of the Hon'ble High Court of Orissa, the Hon'ble High Court did not find any infirmity in the conclusion of the Tribunal that further continuance of suspension of the applicants before the Tribunal would no more be useful. Thus, the reasoning contained in the order of the CAT, Cuttack Bench for quashing the Orders of suspension in respect of the applicants in the concerned OAs cited supra, beyond the initial period of 90 days is left intact. However, the said order was modified in so far as the dates of operation of suspension keeping in view the challenge made by them in their respective OAs. However, in the instant case, the applicant challenged the very initial suspension vide order dt. 25.10.2018 and the extensions thereof. For better appreciation, the prayer sought in the present OA is extracted as follows:
"In the facts and circumstances of the case mentioned above, and in the interest of justice and fair play, the applicants most respectfully pray that this Hon'ble Tribunal may be graciously pleased:
8.1 to allow the present application;
8.2 To quash and set aside the Order of Suspension dated 25.10.2018 [Annexure: A-1], as being bad in law;
8.3 to further quash and set aside the impugned Extension of Suspension Order dated 21.01.2019 [Annexure: A-2]; the impugned Extension of Suspension Order dated 19.07.2019 [Annexure: A-3]; the impugned Extension of Suspension Order dated 15.01.2020 [Annexure: A-
4]; the impugned Extension of Suspension Order dated 14.07.2020 [Annexure: A-5]; the impugned Extension of Suspension Order dated 11.01.2021 [Annexure: A-6]; and the impugned Extension of Suspension Order dated 07.07.2021 [Annexure: A-7]; as being bad in law; Page 18 of 24
OA No.21/507/2021 8.4 to consequently direct that the entire period of suspension of the applicant [from 25.10.2018 onwards] should be treated as duty for all purposes;
8.5 to consequently direct the Respondents to pay the Salary and other Allowances for the entire period of suspension of the Application [from 25.10.2018 onwards] to the Applicant within a prescribed period;
8.6 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;
8.7 to allow exemplary costs of the application; and 8.8 to issue any such and further order/ directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case." As the applicant in this case clearly challenged the initial suspension and further extensions thereof, the applicant is entitled for the same relief as granted by the CAT, Cuttack Bench OA No. 617/2019 & 693/2019. Further, the order of the CAT, Principal Bench in OA 1224/2018 dt. 31.05.2018, relied upon before the CAT, Cuttack Bench in the above referred OAs, has been implemented by the Govt. of India vide Order dt. 26.06.2018 (Annexure A-16).
23. We have gone through the judgment of the Hon'ble Ahmedabad Bench of this Tribunal dt. 21.01.2022 in OA 503/2020, filed by Sri Sandeep Jot Singh, IRS officer of 2009 batch, who was placed under suspension vide order dt. 29.09.2017 and the Tribunal quashed and set aside his suspension beyond the initial period of 90 days. Relevant observations of the Tribunal are as under:
"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:-
Xx xxx xxx Page 19 of 24 OA No.21/507/2021 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:
Xxx xxxx xxx
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 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 (Annexure A/18 referred).
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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. (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."
Xxx xxxx
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. Xxxx xxxxx
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 Page 21 of 24 OA No.21/507/2021 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.
Xxx xxxx 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."
24. We have also gone through the order of Ernakulam Bench of this Tribunal dt. 04.01.2023 in OA 180/00731/2016, wherein it has been held as under:
5. In the course of hearing it was pointed out that the suspension of the applicant was revoked on 26.10.2016 and he was reinstated in service pursuant to an interim order passed by this Tribunal on 30.8.2016 taking note of the decision in Ajay Kumar Choudhary's case (supra).
6. Though the learned Senior Panel Counsel for the Central Government vehemently contended that on merits the respondents were justified in extending the period of suspension beyond initial period of three months by Annexure A2 and thereafter by Annexure A3, it remains a fact that during the relevant period memorandum of charges/charge sheet was not served on the delinquent officer/employee. Having regard to this fact, by the interim order mentioned above, this Tribunal had directed the respondents to revoke the suspension order. Accordingly, the suspension was also revoked.
It is clear that the extension by virtue of Annexures A2 and A3 were without noticing the decision laid down in Ajay Kumar Choudhary's case (supra) which was reiterated in Annexure A6 order. Hence, it is only to be held that the extension of suspension period beyond the initial three months' period Page 22 of 24 OA No.21/507/2021 evidenced by Annexures A2 and A3 is bad and hence, liable to be set aside. Xxxx "
25. We have also perused the judgment of the Guwahati Bench of this Tribunal in OA 160/2021 dt. 09.01.2023, wherein it has been held as under:
"11. From the perusal of the above amendments as well as the O.Ms. issued by the Ministry of Personnel, Public & Grievances, it is clear that after the amendment of the rules, the respondent authority does not have any right to extend the suspension period beyond 270 days as per the amended provisions. However, ignoring such specific provisions, respondent authorities had issued the extension of suspension period vide order dated 09.11.2022, which is irregular and liable to be quashed. It is also noted that till date, no Charge Sheet has been issued even after the expiry of more than 600 days. Therefore, as per the provisions of the rules as well as the observations of the Hon'ble Apex Court in the case of Union of India & Ors. Vs. Dipak Mali reported in (2010) Supreme Court Cases 222 as well as in the case of Ajay Kumar Choudhary Vs. Union of India in Civil Appeal No. 1912 of 2015 (Supra), extension of the suspension orders, in our considered opinion, are liable to be set aside according to the rules. It is observed that if the charges were serious, they ought to have issued the Charge Sheet expeditiously i.e. before the expiry of 90 days of time. However, till date admittedly, no charge sheet has been issued.
12. Accordingly, we quash and set aside the extension of suspension order dated 18.06.2021 as well as subsequent orders of extension of suspension dated 13.09.2021, 06.12.2021, 01.03.2022, 12.08.2022 & 09.11.2022 as per the amended provisions of the rules. The respondents are further directed to allow the applicant to join his duty immediately and make payment of arrear consequential benefits.
13. However, the respondents are at liberty to take appropriate steps as per the rules.
14. Accordingly, O.A. stands disposed of with no order as to costs."
26. Thus, in view of above facts and circumstances and the judgments of the various Courts, this Tribunal is of the considered view that the extension of suspension of the applicant beyond initial 90 days i.e. 23.01.2019 till 01.01.2023 under various impugned orders is bad in law and is liable to be set aside.
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27. Accordingly, we pass the following order:
(i) Suspension of the applicant beyond the initial period of 90 days is quashed and set aside;
(ii) The applicant shall be entitled to salary minus the subsistence allowance already received by him for the period from 23.01.2019 till 01.01.2023.
(iii) The initial period of suspension upto 90 days shall be treated in accordance with the rules on the subject.
28. In the result, the OA is allowed as above, with no order as to costs. Pending MA(s), if any, shall stand disposed of.
(B. ANAND) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
//evr//
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