Central Administrative Tribunal - Delhi
Kamal Jit Singh vs M/O Home Affairs on 20 July, 2017
OA-2168/2017
1
Central Administrative Tribunal
Principal Bench
OA No.2168/2017
New Delhi, this the 20th day of July, 2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
Kamal Jit Singh S/o Ranjit Singh,
Programme Director, ICCR,
R/o BE-251, Avantika, Ghaziabad,
Uttar Pradesh-201002. ... Applicant
( By Advocate: Mr. Harpreet Singh for Mr. Ajesh Luthra )
Versus
1. Union of India through
Secretary, Ministry of Home Affairs,
North Block, New Delhi.
2. Indian council for Cultural Relations
(Ministry of External Affairs) through its
Director General, Azad Bhawan, IP Estate,
New Delhi. ... Respondents
( By Advocate : Mr. Rajesh Katyal )
ORDER
Justice Permod Kohli, Chairman :
While serving as Programme Director, Indian Council for Cultural Relations (ICCR), the applicant in the present OA was suspended in contemplation of disciplinary proceedings in exercise of the power under sub-rule (1) of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, with immediate OA-2168/2017 2 effect vide order dated 03.04.2017. This OA has been filed seeking quashment of the aforesaid order and its continuation beyond 90 days of its passing being violative of rule 10 as also the law laid down by the Hon'ble Supreme Court in case of Ajay Kumar Choudhary v Union of India & others [(2015) 7 SCC 291].
2. In view of the short controversy, while issuing notice Mr. Rajesh Katyal, learned counsel appearing on behalf of the respondents was asked to seek instructions whether any charge-sheet to initiate disciplinary proceedings was issued to the applicant within 90 days from the date of suspension. The respondents have filed a short affidavit. It is stated in the affidavit that a complaint was received from one Dr. Majed A. A. Sabha, Chairman N. M. Academy (Brindavan College, Group of Institutions) against the applicant. A preliminary inquiry was conducted by a team comprising ICCR and MEA officers who recommended major penalty proceedings against the applicant. On consideration of the preliminary inquiry report, the applicant was placed under suspension vide the impugned order. The matter was referred to CVC along with the preliminary inquiry report for its advice. The applicant approached the respondent- Council with appeal under rule 23 of the CCS (CCA) Rules, 1965 for revocation of his suspension. The Council constituted a review committee headed by the Acting Director General, ICCR and two OA-2168/2017 3 officers from MEA to look into the appeal. The committee met on 28.06.2017 to consider the applicant's request. No ground for revocation of suspension was found to have been made out. The committee also recommended that the suspension of the applicant may be continued beyond 90 days for another 180 days w.e.f. 03.07.2017. The decision of the review committee was communicated to the applicant vide office order dated 30.06.2017 (Annexure R-1).
3. From the entire short counter-affidavit, we find that the respondents have deliberately avoided answering the position as regards issuance of charge-sheet. The Tribunal enquired from Mr. Katyal regarding issuance of the charge-sheet, who fairly conceded that no charge-sheet has been issued to the applicant till date.
4. In absence of charge-sheet having been issued within 90 days from the date of initial suspension, the suspension becomes illegal. The issue is no more res integra having been settled by the Apex Court in Ajay Kumar Chowdhary (supra), wherein the following observations have been made:
"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 OA-2168/2017 4 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 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 OA-2168/2017 5 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, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
5. Mr. Katyal has, however, referred to a judgment dated 12.04.2016 of the High Court of Judicature of Bombay, Aurangabad Bench, passed in WP No.2951 of 2016 in The Poona Christian Medical Association v Prabhakar Namdeo Tambe. Para 15 of the judgment containing observation regarding suspension reads as under:
"15. In the instant case, the Industrial Court has not arrived at a conclusion that the employer has violated Standing Order 25(5) or 25(5-A). The reproduced portion of the impugned judgment as above indicates that the Industrial Court has misdirected itself. So also, the view taken by the Hon'ble Apex Court in the matter of Ajay Kumar Choudhary (supra) is with regard to the issuance of a charge sheet in criminal proceedings and the expeditious and speedy trial in criminal cases. In the given facts of the case, the Government was directed not to continue the suspension beyond 3 months if within the said period the memorandum of charges/charge sheet is not served upon the delinquent officer. The issue of Standing Order 25(5) and 25(5-A) was not before the Hon'ble Supreme Court."
OA-2168/2017 6 We have perused the aforesaid judgment. The issue raised in the writ petition before the Hon'ble High Court was noticed in para 2, which reads as under:
"2. The issue raised in this petition is with regard to the interference of the Industrial Court in an order of suspension which has been issued by the employer under Standing Order 25(5) of the Model Standing Orders, pending disciplinary proceedings."
The validity of suspension beyond 90 days was not considered in the said judgment. The observations of the Hon'ble High Court referred to above, do not in any manner help the respondents. The issue is squarely covered by the judgment of the Apex Court in Ajay Kumar Choudhary (supra). Aforesaid judgment of the Apex Court has been duly implemented by the respondents and DOP&T has also issued office memorandum No.11012/17/2013-Estt.(A) dated 03.07.2015 in this regard.
6. In this view of the matter, the suspension of the applicant beyond 90 days is totally illegal and unwarranted and is liable to be quashed.
7. This OA is accordingly allowed. The suspension of the applicant beyond 90 days is hereby quashed. The respondents are directed to reinstate the applicant within one week from the date of receipt of copy of this order. The applicant shall be entitled to full OA-2168/2017 7 salary, i.e., the differential amount between the subsistence allowance and the due salary, after 90 days. The same shall be released to the applicant within two months. Insofar as the period of initial suspension of 90 days is concerned, the same shall be decided by the respondents on termination of the disciplinary proceedings in accordance with Fundamental Rule 54-B. No costs.
( K. N. Shrivastava ) ( Permod Kohli ) Member (A) Chairman /as/