Central Administrative Tribunal - Delhi
Dr Anshu Sethi Bajaj vs Medical Council Of India, M/O Health And ... on 10 August, 2017
Central Administrative Tribunal
Principal Bench
OA No.1623/2017
New Delhi, this the 10th day of August, 2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
Dr. Anshu Sethi Bajaj W/o Dr. B. K. Bajaj,
working as Deputy Secretary (under suspension),
Medical Council of India, New Delhi.
R/o H.No.184, Shakti Khand-3,
Indirapuram, Ghaziabad (UP) 201014. ... Applicant
( By Mr. Yogesh Sharma, Advocate )
Versus
1. Medical Council of India through its Secretary,
Pocket-14, Sector 8, Dwarka, Phase-I,
New Delhi-110077.
2. Executive Committee of Medical Council of India
through the Deputy Secretary (Admn.),
Pocket-14, Sector 8, Dwarka, Phase-I,
New Delhi-110077. ... Respondents
( By Mr. A. K. Behera, Mr. T. Singhdev, Ms. Puja Sarkar, and Ms.
Manpreet Kaur Bhasin, Advocates )
ORDER
Justice Permod Kohli, Chairman :
The applicant is Deputy Secretary in the respondent-Medical Council of India. An FIR dated 22.09.2014 came to be registered by CBI, New Delhi against the applicant and other officials of the respondent Council. Based upon registration of the aforesaid FIR OA-1623/2017 2 and the investigation by CBI, the applicant was placed under suspension under the orders of the Executive Committee of the Council in terms of rule 10 (1) (a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 read with clause 58(1) of the Medical Council of India Regulations, 2000, pending investigation and initiation of departmental proceedings in the matter, vide order dated 01.10.2014 (Annexure-A/1). The applicant's headquarter was kept at Delhi with the further stipulation that she would not leave the headquarters without obtaining prior permission of the competent authority. Suspension of the applicant was extended for a period of ninety days with effect from 30.12.2014 on the recommendations of the suspension review committee which met on 29.12.2014. Subsequently various extensions were granted from time to time extending the suspension by 90 days every time, the last order being dated 23.05.2017 whereby extension of 90 days was granted w.e.f. 17.06.2017.
2. A charge memorandum dated 19.06.2015 was issued for initiating major penalty proceedings against the applicant under rule 14 of the CCS (CCA) Rules, 1965. This charge memorandum stands withdrawn vide order dated 05.12.2016 with immediate effect, though the withdrawal order contains a stipulation that this is without prejudice to further disciplinary action, which the OA-1623/2017 3 disciplinary authority may deem fit in due course of time. Admittedly, no further charge memorandum has been issued to the applicant for initiating disciplinary proceedings.
3. Insofar as the fate of the criminal investigation against the applicant is concerned, the Central Bureau of Investigation filed a closure report before the learned Special Judge, CBI. Said closure report was, however, rejected by the Special Judge, CBI-01, Central Delhi vide its order dated 28.11.2016.
4. This OA has been filed by the applicant challenging her continuous suspension on two counts - (i) that no disciplinary proceedings are pending against her; and (ii) that no criminal charge- sheet has been filed against her before the competent court of criminal jurisdiction within the period of 90 days, or even till date.
5. Mr. Yogesh Sharma, learned counsel appearing on behalf of the applicant, submits that the continuous suspension of the applicant under the given circumstances when no disciplinary proceedings are pending against her, the charge memorandum issued stands withdrawn, and the criminal proceedings have not been taken to the competent court of jurisdiction, is illegal and unwarranted.
OA-1623/2017 4
6. On being put to notice, the respondent Council has filed a detailed counter affidavit. It is admitted that the charge memorandum dated 19.06.2015 served upon the applicant was withdrawn on the advice of Central Vigilance Commission rendered vide its office memorandum dated 24.10.2016. Regarding the criminal proceedings, it is stated that the closure report filed by CBI in connivance with the applicant has been rejected by the Special Judge, CBI. It is, however, admitted that no charge-sheet under Section 173 CrPC was filed in the competent court of jurisdiction.
7. We have heard the learned counsel for the parties at length and perused the record.
8. The applicant was placed under suspension vide order dated 01.10.2014. Her suspension was on account of pending investigation and initiation of departmental proceedings. Relevant extract of the aforesaid order reads as under:
".....For ensuring that there is no interference with the investigation and there is no attempt to do anything with the records of the MCI, it has been decided to place Dr. Anshu Sethi Bajaj, Deputy Secretary, MCI under suspension with immediate effect in accordance with Rule 10(1)(a) of CCS (CCA) Rules, 1965 read with clause 58(1) of the Medical Council of India Regulations, 2000 pending investigation and initiation of departmental proceedings in the matter; and she be paid Subsistence and Other Allowances in accordance with FR 53."
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9. It is admitted case of the parties now that no charge memorandum was served upon the applicant within 90 days of her placement under suspension. The charge memorandum was issued only on 19.06.2015, i.e., beyond a period of 90 days, and even the said charge memorandum was withdrawn vide order dated 05.12.2016. Even though there was a stipulation that the withdrawal is without prejudice to further disciplinary action in due course of time, however, till date no further or subsequent disciplinary proceedings have been initiated against the applicant. Mr. Behera, learned counsel appearing for the respondents submits that the withdrawal was on the advice of CVC. We do not want to make any comment as regards the circumstances under which the advice was tendered by CVC and accepted by the respondents. The fact remains that the disciplinary proceedings were not initiated within 90 days from the date of initial suspension of the applicant, and even the charge memorandum issued has been withdrawn. Resultantly, no disciplinary proceedings are pending against the applicant.
10. In respect to the criminal investigation launched against the applicant, Mr. Behera has taken us through the order dated 28.11.2016 passed by the learned Special Judge, CBI-01, Central Delhi, rejecting the closure report. It is forcefully argued that there are OA-1623/2017 6 serious allegations against the applicant. The closure report was allegedly managed by the applicant in connivance with officials of CBI. In order to strengthen his argument, Mr. Behera refers to some observations made by the learned Special Judge in its order. While referring to the record annexed with the closure report, it has been observed that a letter was ante-dated and forged and fabricated. It is also observed that false and incorrect averments had been made in the closure report in contradiction to the documents on record. The learned Special Judge further noticed that the IO Inspector as well as the SP, CBI had not discharged their duties properly and had prepared the closure report only with the sole motive of protecting the accused persons from prosecution. Finally, while rejecting the closure report, the learned Special Judge directed CBI to further investigate the matter. On the basis of the aforesaid observations, Mr. Behera has contended that the suspension of the applicant is the only option available with the respondents to prevent the applicant from tampering with the investigation.
11. As noticed above, suspension of the applicant was ordered under rule 10(1)(a) of the CCS (CCA) Rules, 1965. Rule 10(1) permits the authority to place a Government servant under suspension under three contingencies - (a) where the disciplinary proceeding against a Government servant is contemplated or is OA-1623/2017 7 pending; or (aa) where, in the opinion of the disciplinary authority the Government servant has engaged himself in activities prejudicial to the interest of the security of the State; or (b) where a case against the Government servant in respect of any criminal offence is under investigation, inquiry or trial. In the present case, the suspension has been order under clause (a) and clause (b) of sub-rule (1) of rule 10, as the disciplinary proceedings were contemplated and the criminal investigation was in progress.
12. Rule 10 of the CCS (CCA) Rules, 1965 has been interpreted by the Apex Court in its judgment reported as Ajay Kumar Choudhary v Union of India & others [(2015) 7 SCC 291]. Considering the analogy of Section 167 CrPC, the Hon'ble Supreme Court made following observations/directions:
"20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure, 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond a period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh v. State of Bihar [(1986) 4 SCC 481 : 1986 SCC (Cri) 511] and more so of the Constitution Bench in Antulay [(1992) 1 SCC OA-1623/2017 8 225 : 1992 SCC (Cri) 93] , we are spurred to extrapolate the 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 if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a 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 preservation of human dignity as well as the right 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/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. As in the case in hand, the Government is free to transfer the person concerned 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 recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the 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, OA-1623/2017 9 departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
This judgment of the Apex Court has been implemented by the Government of India and an office memorandum F.No.11012/04/2016-Estt.(A) dated 23.08.2016 has been issued by the DOP&T advising all Ministries/Departments/Offices to ensure that the dictum of the judgment is adhered to.
13. Mr. Behera, learned counsel appearing for the respondents has stressed that the only requirement of continuation of suspension is that a reasoned order must be passed, by picking up the following sentence from para 21 of the aforesaid judgment of the Apex Court:
"....a reasoned order must be passed for the extension of the suspension...."
The argument of Mr. Behera is fallacious in nature. This argument is based upon total misconstruction and misinterpretation of the judgment of the Apex Court. Para 21 of the judgment contains a clear and unambiguous direction that the currency of the suspension order should not be extended beyond three months, if within this period the memorandum of charge/charge-sheet is not served on the delinquent official/employee. It further says if the memorandum of OA-1623/2017 10 charge/charge-sheet is served, a reasoned order must be passed for extension of suspension. Mr. Behera has tried to impress upon the Court that the only requirement is a reasoned order for extension of the suspension. We are unable to accept this argument. The reasoned order for extension would validate the extension of suspension in the event a memorandum of charge/charge-sheet is served within the stipulated time. In absence of issuance of the charge memorandum/charge-sheet the extension of suspension is impermissible in law.
14. We are, therefore, of the considered opinion that the suspension of the applicant in the given circumstances is not sustainable in law. The OA is accordingly allowed with the following directions:
(1) Suspension of the applicant beyond initial 90 days is hereby set aside and quashed.
(2) As a consequence of quashment of the suspension, the applicant shall be reinstated within one month from the date of receipt of this order.
(3) The applicant shall be entitled to salary minus the subsistence allowance already received by her.
OA-1623/2017 11 (4) Initial period of suspension up to 90 days shall be decided in accordance with Fundamental Rule 54-B. (5) The respondents are at liberty to attach the applicant and shall be under no obligation to allot any work to her to prevent her from tampering with the record/ investigation.
( K. N. Shrivastava ) ( Permod Kohli ) Member (A) Chairman /as/