Central Administrative Tribunal - Delhi
Param Bir Singh vs Home Affairs on 16 March, 2023
1
OA No. 3652/2022
Item No. 10
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3652/2022
Reserved on: 08.02.2023
Pronounced on: 16.03.2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Param Bir Singh, IPS(Retd.)
Neelima Apartment
15, A, B.G. Kher Marg
Malabar Hill, Mumbai-400006.
... Applicant
(By ADVOCATE : Mr. S. Sunil)
Versus
1. Govt. of Maharashtra
Department of Home
Through Additional Chief Secretary Home
2nd Floor Mantralya Main Building
Madam Cama Road
Hutatma Rajguru Chowk
Mumbai-32.
2. Union of India
Ministry of Home Affairs
(through Secretary)
North Block, New Delhi-110001.
... Respondents
(By ADVOCATE: Mr. Rahul Chitnis, Mr. Amit Yadav and Mr. Hanu
Bhaskar)
2
OA No. 3652/2022
Item No. 10
ORDER
Mr. Ashish Kalia, Member (J):
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following main reliefs:
"(i) Quash and set aside the Suspension Order dated 2.12.2021 which emanates from the same set of facts as already held by the Hon'ble Supreme Court;
(ii) declare that in view of the fact that departmental enquiry against the Applicant having been transferred to the CBI and remitted to the stage of Preliminary Enquiry, the order of suspension being issued at the behest of Shri Sanjay Pandey, the then illegally appointed Acting DGP, the clear finding recorded by the Hon'ble Supreme Court that the departmental action and the action under criminal law having emanated from the same set of facts, the chargesheet having ceased to exist, the order of suspension too has to follow suit;
(iii) direct the Respondents No. 1 and 2 to treat the period of suspension of the Applicant from 02.12.2021 till the date of his superannuation on 30.06.2022 as period on duty;
(iv) direct the Respondents No. 1 and 2 to forthwith release to the Applicant all accrued retiral benefits, including but not limited to gratuity, pension etc;"
2. The background of this case, as stated by the applicant in the OA, is that he is an IPS Officer of the 1988 Batch of 3 OA No. 3652/2022 Item No. 10 Maharashtra cadre and was targeted by the erstwhile Government of Maharashtra on account of exposing serious wrongdoings on the part of the Minister in the State Government. The applicant got transferred out of the post of Police Commissioner of Mumbai on 17.03.2021 to the post of Director General, Home Guards in the State of Maharashtra.
He, thereafter, filed Writ Petition (Civil) No. 385/2021 before the Hon'ble Supreme Court for transfer of the case to Central Bureau of Investigation for impartial probe and trial.
Opportunity was granted to the applicant to approach the Hon'ble High Court of Bombay. He, then approached the Hon'ble High Court and filed PIL No. 6 of 2021.
3. It is stated that chargesheet dated 02.12.2021, alleging irregularities and lapses and also alleging unauthorized absence from duty (Annexure A-6) was issued. Based on these recommendations, the Government of Maharashtra issued the suspension order dated 02.12.2021 in accordance with the Provision of Rule 3(1) and 3(3) of the All India Services (Discipline and Appeal) Rules, 1969, which is impugned herein. The applicant is seeking quashing and setting aside of the suspension order dated 02.12.2021 in the light of judgment 4 OA No. 3652/2022 Item No. 10 of Hon'ble Supreme Court dated 24.03.2022 in Criminal Appeal No. 473/2022 (arising out of SLP (Crl.) No. 8788/2021), wherein the Hon'ble Supreme Court has observed as under:
"We are unable to accept the findings of the High Court which seems to treat these as service disputes, which they are not and thus, have to necessarily set aside the impugned judgment.
We thus, direct the further proceedings and investigations into the five FIRs and three PEs to be transferred to the Central Bureau of Investigation with all the records being handed over within one week from today by the State police authorities.
Needless to say, that all concerned including the appellant, other personas in this drama and the State police will render full assistance to the CBI in furtherance of their investigation to try to get to the truth.
Insofar as the departmental enquiries are concerned, in the very nature of the present proceedings which emanate basically from one set of allegations, it will be appropriate to await the result of the investigations now entrusted to the CBI. Needless to say, we are not revoking the suspension which order shall continue subject to any legal remedy which may be available to the appellant.
We do not know whether this is the end of the road or more allegations, more FIRs will be registered now arising from the period the appellant has served in Maharashtra. We make it clear that if any FIRs are registered, they too shall be transferred to the CBI for investigation.
The appeal is allowed in the aforesaid terms with the hope that we will see the truth emerge."5 OA No. 3652/2022 Item No. 10
Hence, the applicant has approached this Tribunal for revocation of suspension, to treat the period of suspension from 02.12.2021 till the date of his superannuation on 30.06.2022 as period spent on duty and to release the retiral benefits. The applicant has also preferred an appeal on 31.05.2022 under Rule 16 of the All India Service (Discipline and Appeal) Rules, 1969, for revocation of his suspension which is not decided.
4. Notices were issued to the respondents. Mr. Rahul Chitnis with Mr. Aaditya Pandey put appearance for respondent No. 1 and Sh. Hanu Bhaskar put appearance for respondent No.
2. They were directed to file reply/instructions on three occasions but they have chosen not to file reply/instruction.
Applicant's counsel pressed for interim relief, thus, we felt that this matter can be disposed of finally, so the applicant's counsel argued the matter. After hearing both the sides, this Tribunal reserved its order.
5. The question raised before this Tribunal is whether suspension order is liable to be set aside or not? Another question which arises for consideration is whether the applicant is entitled for retiral benefits as prayed for or not?
6 OA No. 3652/2022 Item No. 106. The statement of articles of charge framed against the applicant are reproduced below:
"Statement of articles of charge framed against Shri Param Bir Singh, IPS.
Article I Shri Param Bir Singh, IPS, while functioning as the Commissioner of Police Greater Mumbai during the period from March 1, 2020, to March 17, 2021, revoked or caused to be revoked the suspension of Shri Sachin Vaze, the then Assistant Police Inspector, who had been placed under suspension since long, in an unusually accelerated suspension review process; he also took extraordinary interest in appointing Shri Vaze as Head of the Criminal Intelligence Unit (CIU), Crime Branch, Mumbai City, by transferring two officers of the rank of Inspector from the Crime Branch to facilitate the appointment of Shri Vaze as CIU head. However, Shri Singh did not only appoint Shri Vaze to an executive post by violating the Government policy but also he failed to take all possible steps to ensure integrity of, and devotion to duty by Shri Sachin Vaze, who was for the time being functioning under his direct control while he was heading the CIU and he, thus, failed to exercise proper control over Shri Vaze.
By his aforesaid act, the said Shri Param Bir Singh has exhibited lack of devotion to duty and conduct unbecoming of a Government Servant and also failed to exercise control over the activities of Shri Sachin Vaze thereby violating Rules 3(1) & 3(2) of the All India Services (Conduct) Rules, 1968.
By appointing Shri Vaze as CIU head, an executive post, by transferring two officers from there, the said Shri Singh also did not only fail to promote the principles of merit, fairness, and impartiality but also he is found in breach of Government policy which says that an officer should not be posted to an executive post immediately after revocation of his suspension thereby violating Rule 3(1A)(ii) of the All India Services (Conduct) Rules, 1968 and the Government 7 OA No. 3652/2022 Item No. 10 Circular No. Ni.Pra.Aa-1112/pra.kra.82/11-A, dated 20.04.2013.
Article II During the aforesaid period and while functioning in the aforesaid office, when a gelatine laden vehicle was found parked near the residence of prominent industrialist Shri Mukesh Ambani, the said Shri Param Bir Singh failed to ensure submission of report regarding the said sensitive incident having bearing on safety and security of Shri Ambani and on the residents of Mumbai City to the Government, till March 17, 2021, the day when he demitted the office of the Police Commissioner, Greater Mumbai, nor nor did he submit any written report to the Home Department in the matter till the aforesaid date.
By his aforesaid acts, Shri Singh has violated Rule 237 of the Maharashtra Police Manual, 1959, Volume II and Rules 23 and 49 of the Maharashtra, Police Manual, 1959, Volume III By his aforesaid act, the said Shri Singh failed to maintain devotion to duty as Police Commissioner, Mumbai City and also, he failed to perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities. He has, thus, violated Rules 3(1) & 3(2B)
(xii) of the All India Services(Conduct) Rules, 1968.
Article III The said Shri Singh, while functioning as the Commandant-General, Home Guard, M. S, wrote a letter of complaint against the then Home Minister, M. S., directly to the Hon'ble Chief Minister, M. S. on 20.03.2021, without following the established procedure of routing the letter through his official superior. Simultaneously, he published or caused to be published the said complaint on Social Media platforms and in the electronic media. He, thus, not only aired his alleged grievances in the media but also he leaked or caused to be leaked the aforesaid official 8 OA No. 3652/2022 Item No. 10 communication to the media without having any authority to do so.
The said Shri Singh being a person in the service of Government, by writing a complaint directly to the Hon'ble Chief Minister relating to a matter affecting his official position has, thereby, violated Instruction No. 15(a) of the Government Resolution No. OFC 1058-B, dated 03.12.1958, read with the Accompaniment to Government Resolution, Political Services Department, No. OFC. 1058-B, dated 03.12.1958, containing Rules for the Preparation, Submission and Disposal of Applications to Government.
By his aforesaid acts, the said Shri Singh also violated Rule 9 of the All India Services (Conduct) Rules, 1968, which specifies that no member of the Service shall, except in accordance with any general or special order of the Government, or in the performance in good faith of duties assigned to him, communicate directly or indirectly any official document or part thereof or information to any Government servant or any other person to whom he is not authorised to communicate such document or information.
By the aforesaid acts, the said Shri Singh has further exhibited a conduct which is unbecoming of a member of the service thereby violating Rule 3(1) of the All India Services (Conduct) Rules, 1968.
Article IV During the aforesaid period and while functioning in the aforesaid office, the said Shri Singh left for Chandigarh his hometown, on April 30, 2021:
supposedly to his ailing mother. Thereafter, while he was in Chandigarh, he made a request for medical grounds vide his application dated 05.05.2021. From time to time, he made further applications dated 12.05.2021, 21.05.2021, 31.05.2021, 10.06.2021, 17.06.2021, 01.07.2021, 16.07.2021, requesting for extension of his leave on medical grounds. Finally, he submitted a request, vide his letter dated 06.08.2021, for extension of leave on medical grounds for three more weeks, that is, till 27.08.2021. After 27.08.2021, he did not join his duties, nor did he make any request 9 OA No. 3652/2022 Item No. 10 to the Government for extending his leave beyond 27.08.2021 on medical grounds or on any other ground The said Shri Singh thus, has been wilfully and unauthorisedly absent from duty.
By his foresaid acts, the said Shri Singh has exhibited lack of devotion to duty and conduct unbecoming of a member of the Service and has also acted contrary to Rule 24 of the All India Services (Leave) Rules, 1955, thereby violating Rules 3(1) & 3(2B)(x) of the All India Services (Conduct) Rules, 1968.
Article V During the aforesaid period of absence from duty from 30/04/2021 till date, from the applications for leave made by the said Shri Singh and his response to the communications made with him by the Government, it has been revealed that the said Shri Singh provided his address as "House No. 133, Sector 27 A, Chandigarh", when he made an application on 05.05.2021, for seeking leave on medical grounds while he was in Chandigarh where he had gone supposedly to enquire about the well-being of his ailing mother on 30.04.2021. However, when the Superintendent of Police, CID Crime, Konkan Bhawan Navi Mumbai deputed a team to visit the said Shri Singh at the residential address provided by him vide his leave application dated 05.05.2021, that is, House Number 133, Sector 27 A, Chandigarh, in connection with Crime Number: 105/2021, registered with Bazar Peth Police Station, Thane City and Crime Number 299/2021, registered with Marine Drive Police Station, Mumbai City, against him, he was not found at the said address when the team visited at the aforementioned address on 06.09.21. He was also not found at the said address when the CID Crime teams visited the said address or his other known addresses to execute bailable warrants issued against him by the One- Member High Level Inquiry Commission on 13.09.2021, 15.09.2021, 30.09.2021. 01.10.2021 and 04.10.2021. When he was called upon to provide his address during the period of absence from duty, he did not respond to the said communications. Thus the said Shri Singh failed to provide correct residential address to the Government or failed to apprise the Government 10 OA No. 3652/2022 Item No. 10 about change in his address during his period of absence from duty.
By his aforesaid acts, the said Shri Singh has failed to maintain high ethical standards, integrity and honesty, he has acted contrary to law, rules, regulations and established practice and also he has exhibited conduct unbecoming of a member of the Service thereby violating Rules 3(1), 3(1A)(i) & 3(2B)(x) of the All India Services (Conduct) Rules, 1968, as he was required to apprise the Government of his address during the period of applied leave/absence from duty all the times. As the said Shri Singh also failed to provide his address during the leave/absence period when he stopped staying at the aforementioned address in Chandigarh, he has, thereby, also violated the Rule 24 of the Maharashtra Civil Services (Leave) Rules, 1981. Further by his aforesaid acts, the said Shri Singh has, prima facie, been found to be evading the law either by providing false or wrong residential address or by an act of abscondence. He has, thus, acted contrary to law, rules, regulations and established practices thereby violating Rule 3(2B)(x) of the All India Services (Conduct) rules, 1968; his said acts also amount to misconduct unbecoming of a member of the Service thereby violating Rule 3(1) of the All India Services (Conduct) Rules, 1968.
Article VI During the aforesaid period from 30/04/2021 till date, while continuing to remain unauthorisedly absent from duty, the said Shri Singh made some applications for leave on medical grounds and appended medical certificates issued by a doctor of the Alchemist Hospital, Panchkula, Haryana, with his leave applications. However, when he was directed by the Government vide its letters dated 06.08.2021 and dated 06.09.2021 to provide the credentials and contact details of the doctor(s) treating him and of the hospital, he did not respond to the communications of the Government.
By aforesaid act, the said Shri Singh has failed to maintain high ethical standards, integrity and honesty and accountability and transparency, a misconduct which amounts to unbecoming of a member of the 11 OA No. 3652/2022 Item No. 10 Service thereby violating Rules 3(1A)(i), 3(1A)(iv), & 3(1) of the All India Services (Conduct) Rules, 1968.
Article VII In an inquiry that is being conducted by a One-Member High Level Inquiry Commission, headed by Hon'ble Shri Justice K. U. Chandiwal, (R), into the allegations made by the said Shri Singh himself, vide his letter dated 20.03.2021, when the said Shri Singh failed to appear before the said Inquiry Commission in response to the summons issued to him, the said Commission issued a bailable warrant against him on 8th September 2021. The bailable warrant could not be executed against the said Shri Singh as he was not found at his official residence in Mumbai on 13.09.2021. Thereafter, on 15.09.2021 the said team went to execute the warrant in Chandigarh at the address given by him on his leave application dated 05.05.2021, but he was not found there also. He was also not found at another address in Chandigarh viz "House No. 555, Sector 36-B, Chandigarh", when the said team visited there to serve the process on 15.09.2021. Shri Singh's father had stayed at this address as tenant in the past.
As the said Shri Singh could not be served the bailable warrant on 15.09.2021, the Hon'ble Commission again issued a bailable warrant against him on 22.09.2021. Pursuant to this, the ADG, CID Crime, deputed a team to serve the process on the said Shri Sigh. The said team visited Chandigarh on his aforementioned known addresses on 30.09.2021. The team also visited the Alchemist Hospital, Panchkula, Haryana on the same day in search of the said Shri Singh. When the team got an information that Shri Singh might have been staying with his relatives in Vasant Kunj, New Delhi, it also visited the said address on 01.10.2021. Again on 04.10.2021, the said team visited his official residence, 15A, Neelima Apartments, B G Kher Marg, Malabar Hill, Mumbai and Office of the Commandant General, Home Guard, Fort, Mumbai, to serve the process. However, the said Shri Singh was not found at any of the addresses/places visited by the said team.
12 OA No. 3652/2022 Item No. 10Hence, said Shri Singh without informing the Government stopped living at the address given in his leave application 05.05.2021, and failed to keep the Government informed about his exact address during the period of absence from duty or applied leave. The said Shri Singh has also been wilfully avoiding appearing before the Hon'ble Commission.
By his aforesaid acts, the said Shri Singh has been wilfully evading the summons/warrant issued by the Hon'ble Commission either by giving wrong address or by falling to keep the Government informed about the exact address or by an act of abscondence, the acts which are contrary to law, rules, regulations and established practices thereby violating Rule 3(2B)(x) of the All India Services (Conduct) Rules, 1968; his said acts also amount to misconduct unbecoming of a member of the Service, thereby violating Rule 3(1) of the All India Services (Conduct) Rules, 1968.
Article VIII Shri Param Bir Singh, IPS, while functioning as the Commissioner of Police, Greater Mumbai, during the period from March 1, 2020, to March 17, 2021, was requested by the then Commandant-General, Home Guard, Shri Sanjay Pandey, to record the statement of Smt. N. Ambika, IPS, the then DCP, Zone IV, Greater Mumbai, in an inquiry that was being conducted by him against her in a complaint preferred by Shri Rajendra Trivedi, the then ACP, Sion division, Greater Mumbai, and forward the same to him. The said inquiry was being conducted by Shri Pandey in accordance with the direction of the Government.
Instead of complying with the direction of Shri Pandey, the said Shri Singh recommended to him that the said inquiry may be closed as the matter had been examined at his level based upon the explanation submitted by Smt. Ambika and the complaint was found to be unfounded.
The said Shri Singh also called Shri Trivedi on 10.11.2020 over his cell phone to put pressure on him to withdraw the complaint. Shri Trivedi then complained to Shri Pandey that he was being threatened by the said Shri Singh to withdraw the 13 OA No. 3652/2022 Item No. 10 complaint. He also used names of Government functionaries with whom he could get the inquiry closed besides threatening the complainant with his contacts in the Government He, thus, tried to offer inducement, issued veiled threat and a promise to help him in getting an inquiry against Shri Trivedi closed in order to persuade him to withdraw the said complaint. The said Shri Singh tried to abuse his position as Commissioner of Police, Greater Mumbai, to persuade Shri Trivedi to withdraw the complaint. He also tried to delay the inquiry by not instructing Smt. Ambika to attend the same.
By aforesaid acts, the said Shri Singh exhibited conduct which is unbecoming of a member of the Service. He did not only misuse his position as Police Commissioner, Greater Mumbai, but also he acted contrary to law, rules, regulations and established practices and failed to implement the lawful order communicated to him thereby violating Rules 3(1) and 3(2B)(vii)(x)(xi) of the All India Services (Conduct) Rules, 1968. Shri Singh also indulged into discourteous behaviour with the complainant by threatening him with the consequences and adopted dilatory tactics to interdict the inquiry against Smt. Ambika, thereby violating Rule 3(2A) of the All India Services (Conduct) Rules, 1968.
Furthermore, by administering inducement and threat to Shri Trivedi to persuade him for withdrawing the complaint, the said Shri Singh failed to appreciate the request of the inquiry officer on merit alone and also he, by trying to influence the course of the inquiry in favour of Smt. Ambika, failed to act with fairness and impartiality thereby discriminating against the complainant. He has, hence, been found in breach of Rule 3(2B)(viii) (ix) of All India Services (Conduct) Rules, 1968."
7. Learned counsel for the applicant has drawn our attention to Rule 3(3) of the All India Services (Discipline and Appeal) Rules, 1969, which reads as under:
14 OA No. 3652/2022 Item No. 10"(3) A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a [member of the Service] or is likely to embarrass him in the discharge of his duties or involves moral turpitude."
8. The Hon'ble Apex Court in the matter of Ajay Kumar Choudhary vs. Union of India through its Secretary & Anr., Civil Appeal No. 1912/2015 (arising out of SLP No. 31761 of 2013) has held that:
"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 record, this would render it punitive in nature. Department/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 misdemenour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for 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 15 OA No. 3652/2022 Item No. 10 to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets or 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."........"
9. The very basis of FIR lodged against the applicant has been questioned before the Hon'ble Supreme Court and the Apex Court has observed that the fairness on the part of the State Police Officers while inquiring into the allegations is not sustainable and matter has been transferred to the CBI who have to look into the matter afresh from the preliminary enquiry stage itself. Unless and until the CBI forms an opinion, the charges against the applicant is sustainable or not, is still a question at large. The Apex Court has directed departmental proceedings to await the result of the investigations now entrusted to the CBI which are on the similar grounds of criminal case. The applicant superannuated from service on 30.06.2022.
10. It is useful to extract Rule 69 of the CCS (Pension) Rules, 1972, for better appreciation, which is as under:
"69. Provisional pension where departmental or judicial proceedings may be pending (1) (a) In respect of a Government servant referred to in Sub-Rule(4) of 16 OA No. 3652/2022 Item No. 10 Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon:
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under Sub-
Rule (1) shall be adjusted against final retirement benefit sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."
11. Learned counsel for the applicant submits that if an employee is allowed to retire from service during the period under suspension, then he is entitled for provisional pension.
However, the gratuity can be withheld by the authorities concerned.
17 OA No. 3652/2022 Item No. 1012. It is pertinent to quote the 2nd proviso to Rule 3(1) of the All India Services (Discipline & Appeal) Rules, 1969:
"Provided also that, where a State Government passes an order placing under suspension a member of the service against whom disciplinary proceedings are contemplated, such an order shall not be valid unless, before the expiry of a period of thirty days from the date from which the member is placed under suspension, or such further period not exceeding thirty days as may be specified by the Central Government for reasons to be recorded in writing, either disciplinary proceedings are initiated against him or the order of suspension is confirmed by the Central Government."
Further, Rule 3 (1B) reads as under:
"(1B) The period of suspension of a member of the Service on charges other than corruption shall not exceed one year and the inquiry shall be completed and appropriate order shall be issued within one year from the date of suspension failing which the suspension order shall automatically stand revoked:
Provided that the suspension can be continued beyond one year only on the recommendations of the Central Ministry's Review Committee:
Provided further that the period during which the disciplinary proceedings remain stayed due to orders of a Court of Law, shall be excluded from this limit of one year."
13. The Hon'ble Supreme Court in the case of State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr., (2013) 12 SCC 210 has observed as under:
18 OA No. 3652/2022 Item No. 10"13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committee grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.
XXX XXX XXX
16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". Article 300-A of the Constitution of India reads as under:
"300-A. Persons not to be deprived of property save by authority of law.-No person shall be deprived of his property save by authority of law."
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."
19 OA No. 3652/2022 Item No. 1014. We find that on 31.05.20222, the applicant made an appeal for revocation of suspension period. The Government did not inform anything to him. Neither the suspension period has been further reviewed or extended nor has any decision on extension of suspension been placed on record. In the absence of extension order, the suspension order is not sustainable in the eyes of law and comes to an end by efflux of time prescribed because the very basis of the criminal case is no more in existence. The Government is free to decide the fate of suspension period from 02.12.2021 to 30.06.2022 as spent on duty or not after taking necessary approval of competent authority under Rule 9 of the CCS (Pension) Rules. As on the date of retirement, no charge sheet is issued because now CBI has to investigate or probe from the initial stage. The Hon'ble High Court has directed the CBI to form its view within fifteen days but till date it has not been informed to us whether the same has been filed. The relevant para of the order of Hon'ble High Court reads as under:
"82. We quit agree with Shri Nankani and Shri Jha that an unprecedented case has come before the Court. We also agree with Dr. Patil that directions are required for facilitating an unbiased, impartial, fair but effective probe so that the truth is unearthed 20 OA No. 3652/2022 Item No. 10 and the devil, if any, shamed in accordance with procedure established by law. Here, Shri Deshmukh is the Home Minister. The police department is under his control and direction. There can be no fair, impartial, unbiased and untainted probe, if the same were entrusted to the State Police Force. As of necessity, the probe has to be entrusted to an independent agency like the CBI. While so entrusting, the note of caution in P. Sirajuddin (supra) has to be borne in mind. Although we do not see an immediate reason to direct registration of an FIR by the CBI based on Dr. Patil's complaint, interest of justice, in our opinion, would be sufficiently served if the Director, CBI is directed to initiate a preliminary inquiry into the complaint of Dr. Patil which has the letter of Shri Param Bir addressed to the Hon'ble Chief Minister, as an annexure. This would be in perfect accord with paragraph 120.6 of Lalita Kumari (supra). Also, the press release of Shri Deshmukh suggests that he is not averse to facing any inquiry. It is, therefore, ordered accordingly.
83. Such preliminary inquiry shall be conducted in accordance with law and concluded as early as possible but preferably within 15(fifteen) days from receipt of a copy of this order. We hope and trust that the officer(s) appointed for the purpose of conducting preliminary inquiry shall receive due cooperation from individuals/agencies who are approached therefor. Once the preliminary inquiry is complete, the Director, CBI, shall be at liberty to decide on the future course of action, also in accordance with law.
Should the Director, CBI see no reason to proceed further, Dr. Patil shall be duly informed of the same."
15. In view of the above discussion and legal position, we are of the considered view that suspension order is non-est and deemed to have been lapsed or come to an end as the Respondents did not review it for extending for further period.
In view of the Apex Court decision in Ajay Kumar Choudhary (supra), the suspension is held not to be valid after 21 OA No. 3652/2022 Item No. 10 expiry of more than three months. In the present case, more than one year has elapsed. The respondents are at liberty to pass fresh orders against the applicant and initiate the departmental proceedings after CBI files fresh charge sheet after finishing the preliminary enquiry for which fifteen days time was granted by the Hon'ble High Court of Bombay, which has also elapsed. It is needless to say that the applicant is required to be considered for provisional pension and other pensionary benefits in terms of Apex Court judgment in Jitendra Kumar Srivastava (supra).
16. Ordered accordingly. In light of the legal position and peculiar facts and circumstances of the case, the OA is allowed in the aforesaid terms. No order as to costs.
(Dr. Anand S. Khati) (Ashish Kalia)
Member (A) Member (J)
/NS/